Updated guidance on substantiation.
Before submitting marketing communications for publication, marketers must ensure that they hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.
How do I know if my claim requires substantiation?
If a claim is capable of objective substantiation, the marketer will be required to hold adequate supporting evidence. Marketers should be mindful of the fact that if the Advertising Standards Authority (ASA) considers a claim to be objective and capable of substantiation, they are likely to rule the claim misleading in the absence of adequate substantiation, even if the marketer’s intention was to make a subjective claim.
What about comparative claims?
Marketers wanting to make objective comparative claims, such as “leading”, “best”, or “cheaper”, for example, must hold evidence relating to both their own products and those of the competitor or competitors that are the subject of the comparison. Comparative claims can be both implicit and explicit and relate to both identifiable and non-identifiable competitors.
In April 2016, the ASA ruled against a claim that a facial cleansing product was the “UK’s most effective anti-bacterial face wash”, because while the marketer submitted evidence to support the claim, not only had the testing concerned only been carried out on leading competitors, rather than the whole market, they concluded that the evidence did not prove there would be a perceptible difference in effectiveness for users of the product.
Don’t rely on testimonials alone
Provided they are genuine, marketers may feature customer testimonials in their advertising, but these alone are unlikely to be considered sufficient to substantiate objective claims. Where they are likely to be interpreted as objective claims, the opinions expressed in testimonials must be supported by independent evidence of their accuracy. In February 2015, an advertiser submitted testimonials in support of efficacy claims for a copper bracelet in the treatment of restless leg syndrome and the ASA ruled that personal or customer endorsement alone did not constitute adequate substantiation.
Take particular care when referring to health and beauty products
Medical and scientific claims made about health and beauty products, including weight control products, food supplements and cosmetics, should be backed by evidence, where relevant consisting of trials conducted on human subjects.
Marketers of health and beauty products wanting to make breakthrough claims about a product or treatment will need to hold a high level of robust evidence and should collate sound data to form a body of evidence. That body of evidence will usually need to include properly controlled human experimental studies.
Are there any exceptions?
While claims capable of objective substantiation will, generally, require supporting evidence, obvious untruths or exaggerations (“puffery”), which are unlikely to be taken literally by the average consumer are likely to be considered acceptable, provided they do not mislead consumers materially. In 2013, the ASA ruled that the claims “to achieve the unachievable” and “Comfort redefined” in trade magazine ads for a contact lens brand would be understood as puffery, rather than objective claims based on evidence.
Claims which are obviously a marketer’s subjective opinion and are unlikely to be interpreted as objective claims will not usually require supporting evidence, provided it is clear that marketers are expressing their opinion, rather than stating a fact. In 2014, for example, the ASA considered whether the claim “The most comfortable beds in the world“, 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.
Note: This advice is given by the Committee of Advertising Practice (CAP) Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA.
Source: CAP website
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