Misleading advertising


INSIGHT
Published
Aug 1st '22
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Around 70% of the cases considered by the Advertising Standards Authority (ASA) each year relate to potentially misleading advertising and Section 3 of the Committee of Advertising Practice (CAP) Code sets out the ways in which ads risk misleading consumers, from omission and pricing, to comparative claims about competing products. Misleading advertising is sometimes colloquially known as ‘false advertising’.

 

  • Don’t mislead consumers materially

Advertising rules state “Marketing communications must not materially mislead or be likely to do so”. When considering whether business to consumer advertising is misleading, the ASA will take factors identified in the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) into account, including how the average consumer will interpret the ad and whether it is likely to cause consumers to take a transactional decision that they otherwise wouldn’t have taken.

 

Marketing communications will be assessed on the overall impression they are likely to give consumers, as well as specific claims and images, so marketers should be mindful of the need to consider the likely interpretation of an ad as a whole, rather than individual elements alone.

 

Making inaccurate objective claims is likely to be considered misleading. For example, displaying incorrect customer ratings (Rental Republic Ltd, 19 January 2022), or making inaccurate claims about features of a product or a service.  The ASA ruled against an ad for a gutter cleaning service because it gave an overall impression that the service was provided by a local small business or tradesperson when this was not the case. Because the principle of supporting a small local business was likely to be a significant factor in a consumer’s decision to respond, the ad was considered misleading (Ben’s Gutters Ltd, 22 December 2021).

 

The ASA will also consider whether any images or graphics used in an ad will mislead. Images which give an inaccurate impression about the product which consumers will receive, for example by exaggerating the quality or size of the product, or suggesting that the product comes with extras when it does not are likely to mislead (see Parsley Box Ltd, 13 November 2019 and Galco Enterprises Ltd 01 September 2021).  Complaints about a Twitter ad for a mobile app game were upheld by the ASA, because the gameplay depicted in the ad was significantly different from the gameplay which featured in the game itself (AppQuantum Publishing Ltd, 13 April 2022).

 

Marketers should be aware that the interpretation of many claims is likely to depend on the context of the entire ad in which it appears. See Types of claims: general for guidance on specific types of claims.

 

  • Material information and qualifications

To help marketers understand when qualifications are likely to be required, and the level of clarification needed, CAP has issued Advertising Guidance on the use of qualifications in ads. This guidance explains that qualifying information must: be included where it is material to the consumer’s understanding of the primary claim, or marketing communication as a whole (rule 3.3); must not contradict the primary claim being qualified to the extent that consumers are likely to be misled (rule 3.9); and must be presented clearly with an appropriate level of prominence.

 

Code rule 3.3 states that marketing communications must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.

 

Material information is defined as information that the consumer needs to make informed decisions in relation to a product. Marketing communications which omit material information, making it difficult for consumers to make informed decisions about a marketer’s product or service, are likely to breach this rule.

 

Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.

 

The ASA considered an ad for a mobile phone contract which stated “£25 / 30 DAYS”, with the “£25” crossed through alongside the claim “£12 when you buy a new SIM with plan online”. Because the ad did not make clear that the £12 price applied for the first 30 days only, after which it rose to £25 per 30 days, which was information material to a consumer’s understanding of the deal, the ad was considered misleading (Lycamobile UK Ltd, 20 September 2017).

 

For further guidance see CAP’s Advertising Guidance on the use of qualifications in ads and Misleading advertising: Qualifications.

 

  • Ensure you can substantiate objective claims

Marketers should ensure that they hold evidence to support all claims that consumers are likely to regard as objective (rule 3.7). In the absence of sufficient evidence, the ASA is likely to consider objective claims misleading. The type of evidence likely to be required by the ASA will depend on the product or service, the level of claim concerned and the context in which it appears. For detailed guidance on the evidence which is likely to be required for particular sectors or types of claims, please see Substantiation. See also Types of Claims: General and Substantiation: Sampling References and Consumer Goods.

 

Efficacy claims made about health and beauty products, weight control products, food supplements and cosmetics are subject to additional sector specific rules. See Substantiation for health, beauty and slimming claims and CAP’s Advertising Guidance on this topic, for detailed guidance on the type of evidence the ASA is likely to expect marketers to hold. See CAP Advertising Guidance – misleading environmental claims and social responsibility for advice on making environmental claims.

 

  • Subjective claims and puffery

Under rule 3.2, obvious exaggerations (“puffery”) and claims that the average consumer is unlikely to take literally are permitted by the Code, provided they are not likely to mislead materially. Marketers should tread carefully here and be mindful of the fact that if the ASA considers a claim to be objective and capable of substantiation, they are likely to consider the claim misleading in the absence of adequate substantiation, even if this was not the marketer’s intention.

 

In 2014, the ASA considered whether the claim “The most comfortable beds in the world”, in an ad for Hypnos beds, was misleading and could be substantiated and they agreed with the advertiser’s view that the claim was subjective, given the experienced comfort of mattress types would vary between consumers (Hypnos Ltd, 26 November 2014).

 

See Types of Claims: Subjective or Objective SuperlativeTypes of Claims: BestTypes of Claims: Parity and Top ParityMatter of Opinion.

 

  • Don’t exaggerate

Marketers should take care to ensure they do not exaggerate the capability or performance of a product.

The ASA upheld a complaint which challenged whether an ad for a teeth whitening product exaggerated the capabilities of the product, because it gave the overriding impression from the visuals that teeth could be whitened instantaneously, which was not the case (HiSmile Pty Ltd t/a HiSmile, 10 April 2019). See also Photo Therapeutics Ltd, 23 December 2015.

 

  • Comparisons with competitors

Specific Code rules apply to ads which make comparisons.

 

When making comparisons with identifiable competitors, in addition to holding evidence to substantiate the claim, marketers must compare products meeting the same need or intended for the same purpose, and must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.

 

Marketers are also advised to include a signpost to where consumers and competitors can access information on the basis of objective comparative claims by, for example, providing a website address where verification information is provided.

 

For guidance on the requirements when making comparative claims see Comparisons: GeneralComparisons: Identifiable competitors and Comparisons: Verifiability.

 

  • Price claims and saving claims

Code rules 3.17 – 3.22 relate to price statements. These must relate to the product featured in the ad and should not mislead by omission, undue emphasis or distortion.  Where prices are quoted, they must include all non-optional fees and charges, unless these cannot be calculated in advance. When using ‘from’ or ‘up to’, marketers must be able to demonstrate that there is a significant proportion of availability at the price stated.

 

Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with a recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold. Advertisers must ensure that any reference prices, such as ‘was’ prices used to advertise the savings a consumer can make represent a genuine established usual selling price and will not mislead (In The Style Fashion Ltd, 23 March 2022). See Promotional savings claims.

 

  • Remember, it’s not only about the letter of the Code!

As with all areas of advertising, marketers should remember that marketing communications should reflect the spirit, as well as the letter, of the Code (rule 1.2) and that when assessing complaints, the ASA will consider the overall impression created by an ad, as well as individual claims and images.

 

See also entries on Testimonials and EndorsementsClaims in Testimonials and Endorsements, and Availability.

 

Source: CAP

 

Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA. CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.

 

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