The ASA 2021 Annual Report: more tech, more monitoring, more focus on harms, and more action against influencers

United Kingdom

The Advertising Standards Authority has published its 2021 annual report. The report sets out some of the ASA’s key priorities and recent initiatives, and highlights its current focuses on proactive, tech-based monitoring and enforcement, prevention of harm, especially to vulnerable groups and minorities, and the environment. In particular, marketers (and their advisors) in the food and beverage, gambling, crypto, Buy Now Pay Later and fashion industries, or any marketers making claims in relation to the environment, using influencers, or advertising to children, should read the report.

In 2021, 20,456 ads were amended or withdrawn following ASA intervention. This is a significant drop from 2020, but that year’s figure was boosted by a specific Botox enforcement project. The 2021 figure is nearly double the next-highest year, 2018.

Meanwhile, CAP delivered 866,145 pieces of advice and training to businesses on the advertising rules, illustrating ASA/CAP’s focus on helping advertisers get their ads right in the first place.

Some of the key points from the report include:

Protecting Children

The report discusses the ASA’s three-layer strategy to prevent children from being exposed to potentially harmful ads, such as ads for alcohol, foods high in fat, salt or sugar, e-cigarettes, gambling and weight and slimming aids. These ads cannot appear in children’s media, or in other media where children make up more than 25% of the audience. Second, even in other media, advertisers must target age-restricted ads away from children. Finally, there are restrictions on what age-restricted ads can depict: for example, the individuals and scenarios shown cannot appeal to children.

From 25 May 2022, ads for cosmetic interventions will be age-restricted. Investigations on body-image advertising are to be published later this year.

From 1 October 2022, gambling and lottery ads must not “be likely to be of strong appeal to children or young persons”. Gambling advertisers will not be able to use sports people, reality TV stars and references to video games well known to under-18’s.

Under the Health and Care Act 2022, there will be bans on TV ads for HFSS foods before the 9pm watershed, and on all paid-for online HFSS advertising. However, implementation of these bans was recently delayed, and they will now come into force in January 2024.

Greenwashing

A series of enquiries is investigating the direction of regulation to ensure that claims are not misleading consumers or irresponsibly encouraging behaviours prejudicial to the environment. The ASA’s current focus is on the travel, energy and heating sectors. Sectors on the radar for the remainder of 2022 are waste, food sustainability, carbon neutral/net zero and hybrid/electric vehicles.

Irresponsible Financial Ads

The report identifies crypto and Buy Now Pay Later as areas of concern because there is a danger of consumers being drawn into debt and investing savings without properly understanding the implications.

The ASA recently published an Enforcement Notice on crypto products, with three key points:

  1. Ads should clearly state that cryptocurrencies are unregulated in the UK and that the value of investments are variable and can go down.
  2. Ads must not state or imply that investment decisions are trivial, simple, easy or suitable for anyone.
  3. Ads must not imply a sense of urgency to buy, create FOMO or that investments are low risk.

Meanwhile, on Buy Now Pay Later, the ASA is concerned that the risks associated with generating debt are not sufficiently clear. It has launched a series of investigations.

Racial and ethnic stereotypes

Following the introduction in 2019 of new rules prohibiting the use of harmful gender stereotypes in ads, in 2021 the ASA researched the impact of racial and ethnic stereotypes. They found three broad potential harms that could arise:

  • Reinforcement of existing stereotypes which has the potential to influence how society views people from minority groups.
  • Creating new stereotypes that can paint a one-dimensional picture of people.
  • Perpetuating or reinforcing racist attitudes and behaviours through depictions, even where the advertiser was doing so to challenge them. 

CAP is now considering whether additional guidance is necessary in this area.

Influencers

For some years, the ASA has been struggling to get influencers, and the brands that instruct them, to comply with the Codes. A combination of factors makes this a particularly challenging area. These include the fast-moving nature of the medium, with ads that are often long gone before the ASA can intervene; influencers who themselves have a limited shelf-life, and therefore prioritise maximising their revenues over preserving their reputations; and an advertising environment which thrives on irreverence and transgression, in which the participants may be less concerned about – or perhaps even revel in – a reputation for breaking the rules.

The report highlights the ASA’s recent actions in this area. It has launched a non-compliant social media influencer page and conducted its own on-platform targeted ad campaigns, which highlight influencer rule-breaking to their followers. The report notes that sanctions appear to be having a positive effect on compliance in bringing about change in influencer behaviour.

 

Article co-authored by David Blanga, Trainee Solicitor at CMS.