Author

Simon Jupp

Senior Counsel

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Author

Simon Jupp

Senior Counsel

Read More

13 December 2022

Advertising quarterly - Q4 – 2 of 5 Insights

Advertising quarterly - ASA updates

This quarter saw the ASA publish 81 rulings, 73 of which were upheld in full and 8 were not. Once again there were a lot of rulings on environmental claims, but this quarter saw an increase in claims concerning advertising of alcohol (14 rulings).

Below are our top ASA rulings from this quarter:

ASA ruling on HSBC

  • Date of ruling: 19 October 2022
  • Decision: upheld
  • No. of complaints: 45

Bus stop posters promoting HSBC's green initiates were held to be misleading for omitting significant information about the company's contribution to CO2 and greenhouse gas emissions.

  • "Climate change doesn’t do borders. Neither do rising sea levels. That’s why HSBC is aiming to provide up to $1 trillion in financing and investment globally to help our clients transition to net zero."
  • "Climate changes doesn’t do borders. So in the UK, we’re helping to plant 2 million trees which will lock in 1.25 million tonnes of carbon over their lifetime."

Consumers would understand the claims to mean that HSBC was making a positive overall environmental contribution as a company. However, the evidence showed that HSBC was continuing to significantly finance investments in businesses and industries that emitted notable levels of CO2 and other greenhouse gases. This was material information that was likely to affect consumers' understanding of the ads' overall message, and so should have been made clear in the ads.

ASA ruling on Fat Lad At The Back

  • Date of ruling: 21 September 2022
  • Decision: upheld
  • No. of complaints: 11

An ad for the cycling clothing company Fat Lad at the Back was likely to cause serious or widespread offence and was inappropriately targeted as the ad could be seen by people of all ages including children. The ad was a digital billboard which featured the text "FAT C*N'T … ACTUALLY, FAT CAN" and "Top-quality cyclewear for every body".

The ASA considered that most people would understand the ad to be a play on words, and that the subsequent use of "fat can" "revealed" the first phrase to be "fat can't".  However, they considered that consumers were likely to view the ad as making an obvious allusion to an expletive, with the asterisk being used to "star out" the letter "U". Consumer research carried out by the ASA showed that use of words such as that expletive was so likely to offend that they should not be used at all in marketing communications.

The ads appeared on a digital billboard, which was an untargeted medium and therefore likely to be seen by people of all ages including children.

ASA ruling on Heineken

  • Date of ruling: 7 September 2022
  • Decision: not upheld
  • No. of complaints: 11

Two ads for Heineken were held to be unlikely to appeal to people under 18.

A poster in Paddington underground station featured a computer-generated image of a woman with spiky grey hair, wearing futuristic armour-like clothing and holding a can of Heineken beer out towards the viewer.  A paid-for ad on Reddit featured a computer-generated image of a man wearing a t-shirt, jeans and a jacket with exaggerated zip detailing and holding a can of Heineken beer.

The ASA noted that both characters had been created specifically for the ad campaign and were not based on any existing characters. Both were depicted wearing stylised clothing and the female character was shown in a dynamic pose with armour-like clothing and stylised hair which were reminiscent of the sort of stylisation seen in gaming avatars. However, the ASA considered the stylisation in itself did not mean that the characters, or the ads, would have greater appeal to under-18s than to over-18s. Neither character was shown engaging in any activity that would appeal to under-18s nor was there anything in the text, and both ads featured muted colours.

ASA rulings on Myleene Klass ads (1, 2, 3)

  • Date of rulings: 2 November 2022
  • Decisions: upheld
  • No. of complaints: 3

Three separate rulings were upheld against Myleene Klass for publishing Instagram posts/stories/reels which were obviously identifiable as ads.

The ads did not contain prominent labels such as '#ad'. References to the partner company (e.g. tagging the partner social media account or using partner name in a hashtag) were not sufficient to show a commercial relationship. In one case, Myleene Klass was advertising her own book but this was not clear and so it was still necessary to use #ad. The partners had contracts with Myleene Klass requiring her to comply with applicable laws and make clear the commercial relationship but were still found jointly responsible with her.

Klass gave an assurance to label future posts clearly but that didn't stop the ASA publishing a ruling against her.

ASA ruling on Unilever

  • Date of rulings: 31 August 2022
  • Decisions: upheld
  • No. of complaints: 1

A TV ad for Persil washing liquid claimed that the product was "kinder to our planet". The ASA held this to be misleading and unsubstantiated.

'kinder to our planet' is a comparative environmental claim. However, the basis of the comparative claim 'kinder' was likely to be ambiguous to viewers. The ad did not explain the basis of the comparative claim, such as whether the advertised liquid detergents were "kinder" in comparison to Persil's own previous products or other products. In the context of the entire ad with several messages relating to environmental issues, the meaning and basis of the claim “kinder to our planet” was unclear.

The ASA acknowledged that Persil were undertaking actions to reduce the environmental impact of their products, but there was no evidence to demonstrate the overall environmental impact of the featured liquid detergents over their full life cycles, compared with Persil’s own previous products or other products, in support of the claim “kinder to our planet”.

ASA ruling on Argos

  • Date of rulings: 12 October 2022
  • Decisions: upheld
  • No. of complaints: 3

Argos made misleading claims on its website about the exact numbers and time of recent sales. The claims included “Going Fast! Last purchased 1 minute ago”, “Selling Fast! Purchased 24 times since your last visit”. Consumers would understand these claims to be accurate representations of the sales history of the product in question. However, Argos did not provide any evidence to substantiate the claims.

The ASA held that the ad also did not communicate that the availability of the product was extremely limited and restricted in certain locations. The product page seen by the complainant stated that the product was in stock but over the course of a week they entered multiple different postcodes on the website in an unsuccessful attempt to find a console they could purchase.

Ruling on Department for Levelling Up, Housing and Communities

  • Date of rulings: 12 October 2022
  • Decisions: upheld
  • No. of complaints: 1

Lisa Nandy MP and Alex Norris MP challenged seven newspaper advertorials for the Department of Levelling Up, Housing and Communities on the basis that they were not obviously identifiable as ads.

The ads were generally accessed either via the homepage of the newspaper's website or via a Facebook/Google ad, which including statements such as "What is Levelling Up? Find out where investments are being made in Derby and your local area".  Those ads were labelled but the statements did not reference the Department for Levelling Up, Housing and Communities and it was not clear from the text that the subsequent article would also be an ad. On the homepage, the image for the ad was labelled "ADVERTORIAL" in the top-left corner, but the font was small (particularly compared to other text on the webpage) and it was insufficiently clear that the linked article was an ad. There was also the issue that readers might arrive at the ad via another route.

Desktop versions of the ads used the label "ADVERTORIAL" which was placed to the far right-hand side of each website above links to other articles from the newspaper, with a line dividing that part of the page from the advertorial. In the context of the full-page ads, the ASA held that it was not clear that the heading related to the ads and that readers were likely to overlook this text. In the absence of prominent ad labelling, readers would think the article was a piece of editorial content.

Rulings on Slug & Lettuce, Signature Pubs, Montpeliers (Edinburgh), City Clubs (Edinburgh) ads

  • Date of rulings: 7 September 2022
  • Decisions: upheld
  • No. of complaints: 4

The ASA upheld rulings against four companies for social media posts which broke the strict alcohol rules by irresponsibly encouraging excessive drinking. The rulings on Slug & Lettuce, Signature Pubs and City Clubs also featured people who appeared to be under 25 years of age.

Slug & Lettuce: the first ad included the text "Which cocktail tree will you be treating yourself and your bestie to?" alongside an image of a stand holding nine cocktails. The second ad included an image of five women each with multiple cocktails. The third ad included the text "When your pal hands you another shot and you're not sure you can handle it but you take it anyway".

Signature Pubs: the ad began with the text "Hands up if you've got a sore hungover head from the Bank Holiday weekend fun…?", followed by a crying with laughter emoji. The ad also included the text "Well the fun doesn't have to stop here – we're already looking forward to what's looking like another busy weekend ahead so make sure to be involved".

Monteliers (Edinburgh): The ad featured two clips of women having drinks poured from bottles of spirits into their mouths, alongside clips of the women holding drinks and sitting by a large sharing cocktail.

City Clubs (Edinburgh): the first ad featured a man rejecting the idea of drinking less to save money when he needed to. The second ad stated, “I wasn’t going to drink tonight but then I remembered it’s the only part of adulthood I enjoy”. The third ad featured a group of friends saying they were not going to get “crazy” on a night out, but then ordered shots. The fourth ad stated “Not only do I dance like nobody is watching, I also drink as if I don’t work in the morning”.

Ruling on The Sunday Times Wine Club ad

  • Date of rulings: 16 November 2022
  • Decisions: not upheld
  • No. of complaints: 1

An ad for "Half Price White Bordeaux" appearing in The Sunday Times newspaper was found not to be misleading as the advertiser was able to substantiate the usual selling price of the product and show that the claim represented a genuine saving against that price.

The offer was for "six bottles for £74.94, just £12.49 per bottle". The ASA considered that consumers would understand the savings claim in the ad to mean that a bottle was usually sold at £25 per bottle and that they would be able to make a genuine saving of 50% against the usual selling price.

The advertiser was expected to provide evidence demonstrate that the bottle of wine was usually sold at £25. The evidence showed that the product had been consistently sold at the higher price before the offer commenced and for a significantly longer period than the promotional price. The offer was available for five weeks and was the only promotion that had been applied during the eight-month period. The product continued to be sold at the higher price for those without access to the promotion.

The ASA took into consideration sales of other sized cases, along with the corresponding price per bottle to see if this affected the usual selling price. The evidence showed that the usual selling price per bottle of the 12-bottle case was only £22.50, but the data indicated that the orders placed were low volume.

In this series

Brands & advertising

Advertising quarterly - ASA updates

13 December 2022

by Simon Jupp

Brands & advertising

Q4: a visual guide to ASA rulings

13 December 2022

by Louise Popple, Simon Jupp

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