ASA Rulings Recap September 2020
This month our Legal Executive, Petronella Connett, takes a look at recent rulings by the Advertising Standards Authority.
Vicks (t/a Procter & Gamble)
In October 2019 Procter & Gamble commissioned a poster ad in the London Overground for Vicks First Defence Nasal Spray which read ‘helps stop a cold in its tracks. Use at the 1st signs. Block the virus. Help stop the cold.’ Text below added ‘traps, neutralises and removes the cold virus when used at the first signs of a cold.’
The Complaint: Can Vicks First Defence nasal spray really prevent, or treat a cold? Remember: Claims to prevent, treat or cure diseases are prohibited by the Code.
The Defence: Procter & Gamble claimed the nasal spray was certified as a class 1 medical device in 2007. They argued the references to the word ‘help’ in the advert were important as they implied the product merely assisted in stopping the development of a cold. They added that the claims ‘when used at the first signs of a cold’ and ‘helps stop a cold in its tracks’ had been approved for use by the Proprietary Association of Great Britain in August 2017. They also relied on expert opinion and provided evidence from five case studies.
The Ruling: UPHELD: The ASA ruled that the ads implied that the advert implied that the nasal spray went beyond reducing the symptoms and could in fact, eliminate cold symptoms. They considered the expert opinion and argued it reflected P&Gs views on consumer interpretation, rather than the evidence provided. The evidence provided was also thrown out as the volunteers in the trial were injected with a cold virus a mere 15 mins before using the nasal spray – something which would never happen in real life as people don’t tend to show symptoms for a few days.
Rules Breached: CAP Code rules 3.1 and 3.3 (misleading advertising), 3.7 (substantiation) and 12.1 (medicines, medical devices, health-related products and beauty products)
How this Ruling might have been avoided: Health is of key focus at the moment for many in the midst of the pandemic, but brands need to be sure to not exploit or mislead consumers with their claims. Objective claims must be backed by evidence and substantiation of claims will be assessed on the basis of available scientific knowledge. Medical claims must only be made for licensed medical products and any secondary medical claims made for cosmetic products must also be backed by evidence – but these must be limited to only preventative action and cannot include claims to treat a disease.
For more info on medicines, read chapter 12 of the CAP Code.
Under Armour UK Ltd
On 15th February 2020, Under Armour ran a feature on their website about their long sleeve t-shirt base layer – the ‘Men’s UA RUSH Compression Long Sleeve.’ They claimed that the t-shirt had been ‘tested and proven to improve strength and endurance.’ They claimed that the way it works is that ‘he mineral-infused fabric absorbs the energy your body emits and reflects it back into your tissues and muscles. That means your muscles can work harder. And you get better.’
The Complaint: Unsurprisingly, a complainant challenged whether the claim ‘tested and proven to improve strength and endurance’ was misleading, and whether it could be substantiated.
The Defence: Under Armour came back saying that their target audience for the product was ‘healthy young adult athletes.’ The product contained a material called Celliant, which was a blend of minerals which Under Armour claimed, ‘allowed the product to enhance athlete performance.’ The Celliant in the t-shirt ‘captured, converted and reflected heat generated by exercising back to the athlete’s body in the form of infrared energy. That energy, then penetrated into the body’s tissues and the warming of the tissues temporarily increased blood flow to those areas.’ They went on to say that this increased blood flow helped muscles perform better, which in turn led to improved strength and endurance.
The Ruling: UPHELD – The ASA said that the phrasing of the advert implied that if an individual wore the t-shirt to exercise, they would experience a noticeably improved level of strength and endurance across the upper body area that it covered. They then debunked the study Under Armour had provided as it was only 24 participants and the shirt worn in the study was actually not even the same one as the one on sale. They didn’t consider the studies an adequate body of evidence and therefore ruled that the claims made could not be substantiated.
Rules Breached: CAP Code rules 3.1 (misleading advertising), 3.7 (substantiation), 3.11 (exaggeration) and 12.1 (medicines, medical devices, health-related products and beauty products)
How this Ruling might have been avoided: All claims within adverts/promotions must be substantiated, and the brand needs to have significant and trustworthy evidence to prove this. Under Armour submitting evidence in the form of a case study that didn’t even feature the same t-shirt shows this. If you don’t have the evidence, you cannot make the claim as if you do, you’re misleading the consumer. We need to be making brands aware that the ASA will request this evidence, and may do so at any time, therefore they need to have it ready and it needs to be good enough.