ASA Snapshot – Key Rulings 2019-2020

On Thursday 19 November, Stuart Helmer, Of Counsel in CMS’s IP Group and co-head of the London Advertising and Marketing Group, provided an update of recent ASA decisions over the last year. Among the many topics discussed were:

• Current issues and things to look out for in 2021 and beyond
• Gender stereotyping, one year on
• Pricing claims
• Medicinal claims and coronavirus
• Environmental/green claims
• Harm and offence
• Influencers
• Misleading advertising claims

News update – current issues and things to look out for in 2021 and beyond

Stuart discussed new regulatory initiatives which advertisers may need to consider over the next few years.

HFSS advertising: the government has published a proposed new anti-obesity policy in light of COVID-19. Among the proposals is a ban on the promotion of HFSS products by volume (e.g. buy one get one free) and by location (e.g. end of aisle), both online and in store in England. There are also proposals to ban HFSS advertisements being shown on TV and online before 9pm, and a potential total ban of advertising of HFSS foods online, possibly by the end of 2022.

DCMS review into online advertising: DCMS aims to ensure that standards on the placement and content of advertising can be effectively applied and enforced online, to promote a competitive and fair advertising market and to drive transparent and ethical targeting practices. Stuart noted that the government’s response to this review should be expected in 2021.

New rules on gambling advertising and children: CAP is consulting on new proposals to introduce strengthened rules and guidance for gambling advertisements, to better protect under-18s, following GambleAware research which revealed the potential adverse impact of the use of lotteries and gambling advertisements on under-18s. Proposals include prohibiting gambling advertisements from having a “strong appeal” to under 18s, rather than merely a “particular” appeal, as is the position under the current rules. Stuart highlighted that this change would take away the comparative element that currently exits under the current rules and will result in a ban on any gambling ad which has strong appeal to children, regardless of its appeal to adults.

ASA adjudications

Gender stereotyping

Stuart discussed the PC Specialist adjudication from 8 January 2020. The ASA received complaints on the basis that the advertisement perpetuated harmful gender stereotypes by depicting men in roles that were stereotypically male and implying that it was only men who were interested in technology and computers. Despite PC Specialist’s customer base in fact being 87.5% male, and the ASA’s guidance expressly saying that the rule does not prohibit ads from featuring only one gender, the ASA upheld the complaints, finding that that the ad perpetuated harmful gender stereotypes. Stuart suggested that this decision may have gone a little too far and noted that it was not mentioned in the ASA’s own recent round-up of gender stereotyping adjudications.

In comparison, Stuart discussed the recent Rightmove adjudication, published on 18 November 2020, where the ASA found that while the scenario depicted undeniably drew on gender stereotypes, it did not do so in a way that was likely to cause harm. Stuart highlighted that this adjudication articulated a two-step test:

1. Are there gender stereotypes?
2. If yes, were those gender stereotypes used in a way likely to cause harm?

The Rightmove ruling indicates that an advertisement is likely to breach the rules only where both answers are in the affirmative. However, for now, we recommend that ads that rely on gender stereotypes should be treated with caution.

Environmental claims

The environment is expected to be a key area of focus for the ASA in coming years, and the CAP Codes require particularly clear substantiation for environmental claims. In light of that, Stuart discussed the recent Ryanair adjudication, published on 5 February 2020, which featured a press ad, a TV ad and a radio ad. The ads claimed that Ryanair has the “lowest carbon emissions of any major airline”, based on CO₂ emissions per passenger per kilometre/mile flown, because it has the youngest fleet, runs point to point routes, has the highest proportion of seats filled on flights and higher seat density than other airlines. The ASA considered that consumers would understand the claims to mean that flying with Ryanair would contribute lower CO2 emissions than if they had chosen a rival airline in Europe.

While the press ad included information about Ryanair’s CO2 per passenger kilometre and referred to some of the contributing factors, including their relatively young fleet and the proportion of seats filled per flight, it did not mention the seating density. There were also references to comparisons with other major airlines, but “major airlines” was vague, and in fact only four other airlines were used in the comparison. The TV and radio ads did not give any information on the metric used to measure emissions, how that was calculated or the role of seating density in that calculation. Despite Ryanair providing data in support of their claims, the data provided suggested that other airlines had comparably low emissions per passenger mile, and some of the data was old and omitted some well-known airlines. As such, the ASA considered that neither ad made the basis of the comparison sufficiently clear.

The key points for advertisers are that environmental claims are in their nature complex, and also require a higher level of substantiation than claims generally. This makes compliant advertising particularly challenging, as often advertisers will find themselves having to provide significant amounts of complex information in a relatively confined media space.

Stuart also discussed a Shell adjudication of 8 July 2020, which concerned a radio ad for Shell’s Go+ carbon-neutral off-setting scheme. The ASA found that the ad did not make sufficiently clear that Go+ was a loyalty scheme, not a fuel, and that consumers would have understood that they were driving carbon-neutral simply by buying Shell fuel. As this was not the case, the ASA found the advertisement to be misleading. This decision illustrates the challenge of making the nature of a product and its environmental benefits clear in a 30-second ad.

Other adjudications

Stuart also discussed ASA adjudications in various other areas, including:

• Pricing claims, noting the need to establish a genuine, established, usual selling price before making “was/now” price claims
• Medicinal claims and coronavirus, with a reminder that medicinal claims may only be made for authorised medicines and CE-marked medical devices, and of the need to ensure that claims do not exaggerate the benefits of the product
• Harm and offence, emphasising the importance of careful targeting, and of the fine line between responsible advertising and harmful images that sexualise and objectify women
• Influencers, noting again the need for advertisers to keep control of what their influencers are doing, and that even where a connection between a brand and a celebrity is well-known, proper disclosure should be made to ensure that even those who do not know of the connection are clear that the post is an ad
• Misleading advertising claims, discussing a recent rash of misleading website countdown clocks used to create a false sense of urgency, the need for clear and prominent qualification to avoid a headline claim being misleading by implication, and a new round of upheld adjudications on broadband services, relating to ads for 5G products

If you’d like to catch up with the discussion, the webcast can be viewed here.

Co-authored by Stuart Helmer and Aysha Kaplankiran.