Types of claims: Unsubstantiable


INSIGHT
Published
Aug 25th '21
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Marketers should ensure that they hold evidence to support all claims that are likely to be interpreted as objective. In the absence of sufficient evidence, the Advertising Standards Authority (ASA) is likely to consider objective claims misleading. (See misleading advertisingsubstantiation and types of claims: general).

 

Some claims, however are unlikely to be interpreted as objective claims, or taken literally by consumers, either because they are clearly a subjective expression of the marketer’s opinion, or because they are clearly obvious exaggerations (“puffery”). These types of claims are unlikely to be capable of substantiation, and are acceptable, provided they do not materially mislead.

 

In 2012, the ASA held that an offer of “unlimited free texts forever” was likely to be interpreted by consumers as containing an element of advertising puffery and that they were unlikely to infer that free texts would be available literally forever (Everything Everywhere Ltd t/a T-Mobile, 24 October 2012).Similarly, the ASA considered that consumers were unlikely to interpret the claim “superfast in the kitchen”, in an ad for Sky Wi-Fi, to mean that they were guaranteed superfast Wi-Fi speeds on their devices in their kitchen, and instead considered that consumers would understand the ad to mean that that Sky offered a broadband service which provided superfast speeds, but that the speeds obtained in the kitchen would nonetheless be dependent on how far the kitchen was from the router (Sky UK Ltd, 06 March 2019).  The claim “Yesterday, today, and tomorrow we have been and always will be by your side”, which appeared in a TV ad for Lloyds Bank was also considered advertising puffery, and not a claim that would be taken literally, or be seen as requiring objective substantiation (Lloyds Bank plc, 03 October 2018).

 

However, marketers should tread carefully and be mindful of the fact that the ASA will consider the likely interpretation of a claim, rather than the marketer’s intention. If the ASA considers a claim to be objective, 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, or “puffery”. Marketers must also take care to ensure that marketing communications do not imply that expressions of opinion are objective claims. In 2002, the ASA upheld a complaint against the claim “Britain’s most informed, independent health expert” (Holford & Associates, 26 March 2003). Although the advertiser considered that the claim was merely an expression of opinion, the ASA thought the claim would be viewed by consumers as an objective one.

 

The claim “friction free shaving” in ads for a women’s razor subscription service was also considered misleading by the ASA. The advertiser believed that consumers would assume the claim to be obvious exaggeration which they would not take literally, however, the ASA considered that, in the context of an ad for shaving products, consumers were likely to understand the claim “Friction Free Shaving” as an objective claim that the products would result in a shave which would be completely free from friction and without the negative aspects of shaving, such as irritation to the skin, shaving rash and cuts, which was not the case (Friction Free Shaving Ltd, 15 January 2020).

 

Similarly, in 2018 the ASA considered the claim “best available tickets” without a qualification was considered an objective claim. The ASA considered that consumers were likely to interpret the claim “the best available tickets” to mean that those tickets were better than any other available tickets for the event generally. Whilst they appreciated that what was seen as “best” depended on the genre of the event, and to some extent, individual preferences, they considered consumers were likely to understand the claim “best available tickets” in the context of the ad to mean that those tickets offered a tangible benefit compared to other tickets on sale, because, for example, they were closer to, or offered a better view of, the stage. Because Ticketmaster did not have evidence to demonstrate that this was the case, the claim was considered misleading (Ticketmaster UK Ltd, 03 January 2018).

 

Even if a claim is subjective, the claim must not mislead. In 2005 the ASA upheld a complaint about the claim “the ultimate broadband experience”. Although it accepted the claim was the advertiser’s opinion, the ASA considered the incidence of severe customer dissatisfaction with the service was enough to make the claim misleading (Bulldog Communications Ltd, 2 March 2005).

 

See also Matters of opinion

 

Source: Committee of Advertising Practice (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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