ASA Rulings Recap January 2021
Recently, the ASA Rulings have undertaken a similar theme; often issues of substantiation and health claims. However, this month they were confronted with a broader range of complaints, from the promotion of tobacco products to misleading price claims.
In The Style Fashion Ltd
Online fashion retailer, In The Style placed two ads, one online and one on Instagram. The online ad stated, “PAYDAY PROMO ALERT OUR BIGGEST DISCOUNT OF THE YEAR 40% OFF ABSOLUTELY EVERYTHING”, with smaller text at the bottom caveating this with products that were excluded from the offer. On Instagram, the ad was entitled “HUGE SUMMER SALE EVERYTHING £10 AND UNDER”. The caption below read “HUGE SUMMER SALE NOW LIVE WITH EVERY SINGLE THING £10 AND UNDER – 100s OF HOT LINES NOW ADDED SO SHOP OUR UNDER £10 CATEGORY NOW”.
The ASA received a single complaint regarding each ad, both arguing the claims were misleading. The complaint about the online ad centred around the argument that as some products were not included in the offer, the term ‘ABSOLUTELY EVERYTHING’ should be challenged, as it was misleading. For the Instagram ad, a similar issue was raised, arguing that the ad created the perception that there was a site-wide discount being promoted, as opposed to the category-limited discount that was actually on offer.
In the Style countered the first complaint by highlighting the explicit exclusions which applied to the offer being included in the ad. They felt that they had provided all the necessary information in the ad and made it clear to the consumer what restrictions were in place. For the second complaint about the Instagram ad, they also felt they had explicitly mentioned that the summer sale was limited to a category (‘UNDER £10 CATEGORY’) and had not created the false illusion that the offer applied to all products.
UPHELD – Unsurprisingly the ASA considered that consumers would understand the headline claim “40% OFF ABSOLUTELY EVERYTHING” to mean that all products on the In The Style website would be reduced by 40%. Although they acknowledged that the ad did mention the products this discount did not apply to, the ASA felt this was insufficient as the overriding impression of the consumer would still be that the offer applied to all the products.
For the 2nd complaint, the ASA felt that the claim “HUGE SUMMER SALE EVERYTHING £10 AND UNDER” in ad to mean that all products on the In The Style website would be £10 and under. Although the ad referred to new lines being added and the existence of the “shop under £10 category”, this failed to make it clear to consumers that the offer did not apply to all the products, and so was ruled to be misleading.
CAP Code – 3.1 – misleading advertising, 3.9 – qualification
Lessons for Us:
Both of these complaints demonstrate that it is pivotal that when we run our promotions, if there are any exclusions or caveats that potential participants need to be aware of, they need to be clearly, explicitly and unambiguously stated. The ruling on the online ad highlights the importance of ensuring the overall impression is not misleading, so it is not sufficient to just hide the qualifications in the TCs but instead it is necessary to make them overt. It highlights the importance of selling in marcomms review to our clients too.
Yoo Delivery Company Ltd:
In October 2020, on Yoo Delivery’s Facebook uploaded a post which included the text “LATE NIGHT Special Delivery MCDONALD’S & CIGARETTE 10PM TO 3AM REDHILL to GATWICK. DELIVERY FEE FROM £4.99” and an image of a burger alongside two cigarettes.
A complainant raised the issue with the ASA, arguing the post had promoted tobacco products.
Despite attempting to contact Yoo Delivery via the postal address provided on their website, the ASA received no response.
UPHELD – the ASA considered that the ad promoted cigarettes as the type of product that could be acquired via the advertiser’s delivery service. Under the Tobacco Advertising and Promotion Act (TAPA) 2002, there were two notable exclusions from the prohibition on tobacco advertising; some tobacco content was permitted where tobacco products were offered for sale or where the content and context might be considered as a response to a consumer’s specific request for information about a tobacco product. As Yoo Delivery connected users with third-party providers, the ASA argued that they could not and were not directly selling cigarettes via their website or app, ruling out the first exception to the restrictions on promotion tobacco products. Moreover, the ASA argued that, as the Facebook ad would be seen by more people than just those seeking the delivery of tobacco products, this did not constitute a response to a consumer request. This meant the ad failed to fall within the exclusions of the restrictions imposed by the TAPA 2002, and so was ruled to have breached the CAP Code.
21.1 Tobacco Products
Lessons for Us:
Although this issue with this ad is quite a specific one and relates purely to tobacco promotion, there are nevertheless lessons we can draw from it. For example, by posting on Facebook, the ad would be viewed by an audience including those who were not specifically seeking out tobacco products. We can relate this to our own promotions, as it is vital that we consider who the likely audience will be. This especially applies to promoting towards children, with advertising promotions near schools for instance being banned, due to who the likely audience will be.