ASA Rulings – April 2022
This month, the ASA Rulings revolved around misleading claims, whether they related to pricing, savings or effectiveness of treatments. Emily Vickers, from the PromoVeritas legal team takes a look at some examples and talks us through where they went wrong.
Back to Normal:
The Advert:
A website and GoFundMe page for the anti-lockdown campaign group Back to Normal made a series of claims for the effectiveness of the drug ivermectin in treating Covid-19. Text on their website stated “The evidence is clear ivermectin prevents and treats Covid 19 it breaks the chain of infection” and “when used on patients with Covid 19 there is a 75% reduction in mortality … for healthy people studies suggest it reduces the risk of infection by 89% … 100% of the first 46 studies report statistically significant positive effects …”. At the bottom of the page there was a link to the GoFundMe page with the word ‘contribute’. The GoFundMe page then asked for donations with text in the updates section of the campaign stating “… I remain completely convinced that ivermectin is the covid killer and all that is needed to end this covid nonsense completely”
The Complaint:
The complainant challenged whether the claims that ivermectin could prevent and treat Covid-19 were misleading.
The Defence:
Back to Normal responded saying they believed that ivermectin was beneficial in the treatment of Covid-19 and provided links to three websites which they believed supported the claims they made. Back to Normal also sent the ASA YouTube videos and podcast episodes where the use of ivermectin to treat Covid-19 were discussed.
The Ruling:
UPHELD – The ASA felt that consumers were likely to understand the claims made by Back to Normal that ivermectin was an effective and reliable option for the treatment of those with Covid-19 and prevention of Covid-19 in those who were not infected.
The websites, YouTube videos and podcast episodes that Back to Normal provided did not contain information that was in line with official guidance on the use of ivermectin and the ASA were not provided with full versions of specific studies to support the ads claims. The ASA did not consider that the videos, which contained individual opinions from a Dr with a non-medical doctoral degree in nursing education on the results of a study, as adequate evidence to substantiate the claims. They also did not consider a podcast as adequate evidence.
Rules Breached:
CAP Code – 3.1 – misleading advertising, 3.7 – substantiation.
Lessons to be learnt:
All adverts and promotions which make any claims must have reliable and valid evidence to reinforce them. Furthermore brands should not make claims around the effectiveness of medicines when they have not been approved for the treatment they are making the claim about.
Emma Matratzen GmbH t/a Emma Mattress:
The Advert:
A product page on the website advertised an Emma Premium Mattress UK King Size for £637.45. Text above the selling price stated “45% savings” and “From £1,159.00” which had been crossed out. Another page advertised an Emma Luxe Mattress UK Double for £1039.95. Text above the selling price stated “39% savings” and “From £1,728.00” which had been crossed out. The website homepage stated, “FLASH SALE UP TO 50% OFF” and was accompanied by a countdown clock. And finally, a London Underground poster featured the text “EMMA’S BIGGEST EVER SALE BLACK FRIDAY UP TO 50% OFF”.
The Complaint:
- Complaints received about the first webpage stated that they believed the “From” price had been increased and so challenged whether the savings claim was misleading.
- The complainant understood the product in the ad was a new release and challenged whether ad complied with the code.
- The complainant challenged whether the use of the countdown clock misleadingly implied that the sales promotion was time limited as they understood that the same discount offer would restart shortly after the countdown ended.
- The compliant challenged whether “BLACK FRIDAY UP TO 50% OFF” was misleading.
The Defence:
- Emma Mattress provided pricing history that covered a 7-month period. The reference price had fluctuated over the period due to their supplier increasing their own prices. Emma said that over the 7-month period they had sold 15,392 units, 2,634 had been sold at the reference price applicable at the time.
- Emma said the ad stated “pre-sale” and considered that this would indicate to customers that the product was new to the market. However, they accepted that the ad should have been clearer in explaining that it was an introductory offer.
- Emma said that the “Flash Sale” which offered the discount of up to 50% off for all customers ended at midnight on 18/10/21 and the sale which immediately followed on 19/10/21 did not offer a discount of up to 50% off and was only available to new customers.
- Emma said that the sale ran from 15 – 29 November 2021 and the ad was not misleading as it prominently stated it was a black Friday sale, it did not state that sale had already started. They considered that the average consumer would understand that the promotion would be running for the Black Friday weekend.
The Ruling:
- UPHELD – the ASA had not seen evidence that the savongs clam represented a genuine saving against the usual selling price of the product and so they concluded that the savings claim was misleading.
- UPHELD – the ASA considered that Emma intended the offer to be an introductory offer, the Code allowed for the use of introductory offers provided that it was clear that the lower price was an introductory price rather than discount against the usual selling price. The ASA said they had not seen any evidence to demonstrate the higher price represented the price at which the mattress was usually sold and concluded that the ad was misleading.
- UPHELD – the ASA considered that countdown clock was likely to pressurise consu,ers into making a swift transactional decision without giving due consideration because of the misleading implication in the ad that the offer would run out at the end of the time period. As another sale started immediately after, the promotion was not time limited and so was misleading.
- UPHELD – the ASA considered that it was not unreasonable for a consumer to think the promotion would be running at the time the ad was seen, due to the increase in length of Black Friday promotions. They considered that the start and end date of the promotion was significant information which needed to be included.
Rules Breached:
CAP Code – 3.1 – misleading advertising, 3.7 – substantiation, 3.17 – pricing. 8.17.4.e – promotional marketing, 8.17 – significant conditions.
Lessons to be learnt:
Again it is clear how important substantiation is in relation to savings claims and how important it is for brands to not mislead their consumers and to not omit significant information.
In the Style Fashion Ltd:
The Advert:
The brand had Instagram stories which stated “I’m so excited for you all to get your hands on my edit with 50% off from the moment it launches! Don’t forget guys once it’s gone it’s gone and it won’t be restocked” and “LIVE IN ONE HOUR WITH 50% OFF GET READY. YOU CAN’T MISS THIS”. The website stated, “THE BLACK FRIDAY COLLECTION”, “50% OFF JESS MILLICHAMP” and featured images of different products which stated the price of “£42.00” which was crossed out in black and “£21.00” written next to it in red.
The Complaint:
Two complainants understood that the clothing collections had not been available to purchase before and would not be available for sale at a higher price once sold out, and so challenged whether the claim 50% off was misleading.
The Defence:
In The Style confirmed that the 50% off promotions which involved the Natasha Sandhu and Jess Millichamp collections were introductory offers and acknowledged that they had not been advertised as such. They also said they intended to sell the items at full price when the sales period ended.
The Ruling:
UPHELD – the ASA felt that consumers would have understood the ads claims of 50% off represented a genuine discount against an established, usual selling price. As consumers were likely to see the higher price as the usual selling price, and that was not the case, the ads were misleading for that reason. Also, even if the ads had made clear that the lower price was an introductory one, the savings claim would nevertheless have been misleading because the prices did not go up to the stated reference price once the sale had ended. As the ASA had not been provided with any evidence that the collections had been previously been sold at a higher selling price, and because the prices had not increased to the stated reference prices at the end of the introductory period, they concluded that the savings claims had not been substantiated and were therefore misleading.
Rules Breached
CAP Code – 3.1 – misleading advertising, 3.7 – substantiation, 3.17 – prices.
Lessons to be learnt:
Any promotions including future introductory offers are clearly labelled as such, and as above, brands need to ensure that they hold relevant pricing substantiation for their savings claims in the future.