ASA Rulings Recap June 2021
In April, May and June the ASA focused on a range of topical issues and complaints, in this brief review Emily Vickers, Paralegal at PromoVeritas takes a look at the most interesting rulings for marketers.
Missguided:
Ad description:
An Instagram post for Missguided on Zara McDermott’s page featuring an image of her in gym wear, alongside a caption stating “GUYS!!! Drop 2 of my @missguided edit is HERE!!!!. Even more styles, some different fabrics, and some new colours to add to the edit! Check out the Missguided website now!”.
The Complaint:
The complainants challenged whether the post was obviously identifiable as a marketing communication.
The Defence:
Missguided stated that they had a contractual agreement in place with Zara McDermott and that the Instagram post formed part of that agreement. A content brief was provided to Zara McDermott however the final caption was not signed off by Missguided. They said that they felt the post was obviously identifiable as a marketing communication, when viewed in the context of the Missguided related posts on Zara McDermott’s account before and after the post under investigation. They did accept that the post had not been correctly labelled as an ad and said that they had put measures in place to ensure future marketing communications were labelled appropriately and future captions were signed-off before being posted. Zara McDermott’s agent said that the omission of ad labels had been mistake on Zara McDermott’s part and the caption was amended to include an ad label.
The Ruling:
UPHELD – the Cap Code states that marketing communications must be obviously identifiable as such and that they must make clear their commercial intent if that was not obvious from the context. The ASA felt that the post under investigation fell within the remit of the CAP Code and that both Missguided and Zara McDermott were jointly responsible for ensuring that promotional activity conducted by Zara McDermott on behalf of Missguided was compliant with the CAP Code.
The ASA felt that although Zara McDermott’s followers were likely to be aware that there was a commercial relationship between her and Missguided, as her profile is public, any posts she published could appear in search results and they could be viewed in isolation from her profile.
As the post did not include the identifier “ad” at the time of the ruling, the ASA considered that it was not obviously identifiable as a marketing communication and therefore breach the Code.
Rules Breached:
2.1 – Recognition of marketing communications
Lesson to be learnt:
We cannot stress enough that both the brand and the influencer will be liable for breaches of the Code and must both ensure that any promotional activities conducted by the influencer feature #Ad, or #Advert or Paid Sponsorship.
Au Vodka Ltd
Ad description:
Seven Instagram Posts by AU Vodka and a website for AU Vodka featuring amongst others Chipmunk sitting on the bonnet and passenger seat of a car drinking the vodka, rapper Headie One in a forklift truck holding a bottle and a glass of AU Vodka and another rapper, Aitch holding up two bottles of Au Vodka.
The Complaint:
The ASA challenged whether the ads were irresponsible because they encouraged excessive and unwise drinking as they showed alcohol being handled irresponsibly, they linked alcohol with the use of potentially dangerous machinery or driving and because it featured someone who was under 25 years of age.
The Defence:
Au Vodka said that they didn’t believe that the ads encouraged excessive drinking, and whilst numerous bottles were visible, they were for decorative purposes. They did however remove the ads featuring Chipmunk, Headie One and Aitch ensuring they would not share any content where a person was shown sitting in the driver or passenger seat of the car in the future and to ensure that no connection was made between drinking and driving or the operating of heavy machinery.
The Ruling:
UPHELD – The ASA concluded that the ads were irresponsible as they encouraged excessive drinking and they showed alcohol been handled in an irresponsible manner. The ASA also referred to the CAP Code requirement that marketing communications must not link alcohol with activities or locations in which drinking would be unsafe and not with the use of potentially dangerous machinery or driving. Au Vodka blatantly disregarded this as some of their images contained forklifts and cars linked to alcohol and so the ASA concluded that the ads were irresponsible and in breach of the Code. With regards to the image of Aitch holding two bottles of Vodka as Aitch was 21 at the time, he was the focus of the image and so played a significant role in the ad it was held that this was in breach of the Code.
Rules Breached:
CAP Code – 18.1 – Alcohol, 18.3 – Alcohol, 18.11 – Alcohol, 18.12 – Alcohol, 18.16 – Alcohol.
Lessons to be learnt:
We must ensure that all clients are aware that adverts and promotions containing alcohol products must not contain people under the age of 25, nor be irresponsible in any way, whether that is encouraging excessive drinking or showing alcohol in unsafe situations. This ruling is also a warning of the perils of using influencers irresponsibly.
Go-Vi Ltd:
Ad description:
An ad seen on the website www.protect-nhs.co.uk for Go-Vi Eradicator 19, an air surface purifier, included the claim “Proven to destroy Coronavirus* cells”. Asterisked text near the bottom of the page stated “Go-Vi’s Eradicator 19+** air purification system has been tested by independent laboratories and proved to be effective against the following:…” accompanied by further text which stated “H5N1 & Coronavirus – a reduction of 5.7 logs (99.9998%) in less than 0.44 seconds in destroying airborne H5N1 avian influenza virus. Testing performed by The Centre National de la Recherche Scientifique, Lyon, France.
The Complaint:
The ASA challenged whether the claim that the product could destroy coronavirus cells was misleading and could be substantiated.
Ad description:
An ad seen on the website www.protect-nhs.co.uk for Go-Vi Eradicator 19, an air surface purifier, included the claim “Proven to destroy Coronavirus* cells”. Asterisked text near the bottom of the page stated “Go-Vi’s Eradicator 19+** air purification system has been tested by independent laboratories and proved to be effective against the following:…” accompanied by further text which stated “H5N1 & Coronavirus – a reduction of 5.7 logs (99.9998%) in less than 0.44 seconds in destroying airborne H5N1 avian influenza virus. Testing performed by The Centre National de la Recherche Scientifique, Lyon, France.
The Complaint:
The ASA challenged whether the claim that the product could destroy coronavirus cells was misleading and could be substantiated.
The Defence:
Go-Vi Ltd stated that their product was effective at destroying Covid-19 and that it had been tested by independent laboratories accredited by multiple agencies.
The Ruling:
UPHELD – Although the active substance used in the product had been approved, there was not sufficient evidence in respect of the testing methodology that the product could destroy viruses on surfaces and in the air, decreasing the risk of transmission in a real-setting There was no methodologically-sound evidence to reflect how the product was likely to be used in real life and therefore the efficacy claims cannot be substantiated. The ASA concluded that the ad was misleading and breached the Code.
Rules breached:
3.1 – misleading advertising, 3.7 – substantiation.
Lessons to be learnt:
It is clear how important substantiation is, and we should ensure all our clients are aware of this and have the necessary evidence at all times when running promotions and adverts in order to ensure that they are not producing adverts and promotions that mislead consumers.