Authors

Kachenka Pribanova

Associate

Simon Jupp

Senior Counsel

Read More
Authors

Kachenka Pribanova

Associate

Simon Jupp

Senior Counsel

Read More

11 April 2024

Advertising quarterly - Q1 2024 – 4 of 5 Insights

Q1 2024: Top 10 ASA Rulings

  • In-depth analysis

A quick overview

The inflation of green credentials was a common theme this quarter, as we first consider a trio of rulings against international airlines Etihad, Deutsche Lufthansa AG and Air France-KLM for failing to substantiate their absolute environmental claims, and then a ruling against ELFBAR, whose drawing of consumer attention to recycling initiatives implied the industry's infrastructure was more advanced and readily available than it was. We contrast the former with a rare finding by the ASA that a claim for zero-emissions driving by Ford does not breach the Code.

We consider the Kia ruling, which forms part of the ASA's wider piece of work on electric vehicle mileage ranges, given that they are being misleadingly represented within the industry. We then turn to a ruling against Proctor & Gamble's Always, which was held to have chosen a misrepresentative point of comparison from a rival brand and misleadingly attributed a favourable statistic to Always through an unqualified succession of on-screen text.

Material omission and its misleading effects cropped up again in the entertainment industry, with ticket marketplace Viagogo challenged for its failure to disclose events' resale prohibitions when positioning itself as a marketplace for resold tickets.

We also consider the Supreme CBD ruling, relating to affiliate advertising on social media where a number of posts on X (formerly Twitter) were not clearly identifiable as ads. We also explore the pitfalls of social media competitions, including the importance of conducting prize promotions fairly by ensuring valid entries are included in, and invalid entries excluded from, the winner's draw, as seen in the Space NK ruling. In terms of email promotions, the English Football League's brand partnership with Papa Johns, which saw a 50% off pizzas promotion emailed to under-16s, contravened advertising rules on products high in fat, salt or sugar (HFSS).

Finally, we consider two rulings in which harm and/or irresponsibility is considered by the ASA. In the KFC ruling, the ASA differentiated between ads where the slogan "FINALLY F CKIN' GOOD" was tempered by the presence (or absence) of KFC's "Finger Lickin' Good" tagline elsewhere on the ad to determine whether allusion to an expletive was irresponsible or not. In the Calvin Klein ruling, we see how there is a fine line between what the regulator and what the public may see as offensive, as demonstrated by an ad featuring singer FKA Twigs.

ASA Ruling on (1) Etihad Airways, (2) Deutsche Lufthansa AG and (3) Air France-KLM 

  • Date of rulings: 6 December 2023
  • Decision: upheld 
  • Number of complaints: 3 (total)  

A trio of rulings against Etihad, Deutsche Lufthansa and Air France-KLM represent the ASA's broader enforcement work on climate change and the environment. All three ads were identified using the ASA's Active Ad Monitoring system, which uses AI to scout for ads potentially in breach.

All ads were paid-for Google ads which attested to the airlines' purported environmental credentials. Etihad's cited its "Environmental Advocacy" and invited prospective customers to "Explore the World With […] Total Peace Of Mind", Deutsche Lufthansa's stated "Fly more sustainably", and Air France-KLM's read "Air France is committed to protecting the environment: travel better and sustainably."

All three complaints were upheld, on the basis that absolute environmental claims must be backed up by a high level of evidence, the threshold for which was not met in these instances. Although Deutsche Lufthansa offered "Green Fares",  which used sustainable aviation fuels, this was not communicated in the ad. The ASA considered that there were no initiatives or technologies being implemented in the aviation industry that would warrant such a degree of green advertising across the ads. The ads therefore gave a misleading impression of the impact caused by travelling with the airlines, so all breached advertising rules. 

In February 2024, the ASA ruled against car companies MG Motor and BMW for non-compliant paid-for Google ads. The claim "zero emission" in respect of electric / hybrid cars amounted to an exaggeration of their green credentials. 

The above should be contrasted with a rare ruling by the ASA that a green claim – this time by Ford Motor Company - does not breach the CAP Code. The decision concerns a paid for Google ad for Ford seen on 16 August 2023 featured the claim, “New All-Electric Explorer – Redefining Adventure. The ultimate all-electric SUV is here. The Explorer. Redefine the meaning of adventure. The ultimate exploration vehicle – Find out more & discover the range of features. Zero-emissions driving. Fast charging. Driver Assistance Tech”. The ASA challenged whether the claim "Zero-emissions driving" misleadingly represented the vehicle's environmental impact.

The ASA concluded that, "We considered that the claim “Zero-emissions driving” in isolation was ambiguous. That was because it could be interpreted as an absolute claim, a comment on the emissions resulting from the vehicle through its life cycle, including for example, its manufacture, use and disposal. While the ad included the claim “Zero-emissions driving”, we noted however that it was immediately followed by references to “Fast charging” and “Driver Assistance Tech”. This further text placed the claim in the context of some of the specific features of the car, which included its emissions while being driven, its charging capability and technical function. The claim was unlikely, therefore, in that specific context to be understood as a comment on the vehicle’s overall life-cycle (manufacture, use and disposal) emissions." The ASA therefore concluded that the ad was unlikely to mislead.

ASA Ruling on Imiracle (HK) Ltd t/a ELFBAR

  • Date of ruling: 29 November 2023
  • Decision: upheld 
  • Number of complaints: 10

Three issues were considered against ELFBAR in relation to a poster and digital billboard ad, both of which featured the words "RECYCLING FOR A GREENER FUTURE GreenAwareness" and a recycling symbol. The ads received 10 complaints which came from consumers, a tobacco company, and Adfree Cities, a network concerned about the impacts of corporate advertising on health, wellbeing, and the environment.

The complainants pointed out: firstly, the lack of recycling options for e-cigarettes; secondly the misleading characterisation of the environmental benefits of these products; and thirdly, the spotlighting of environmental benefits that were brought about by legal requirements (rather than independent initiative or goodwill).

The ASA ruled that the ads exaggerated how ELFBAR e-cigarettes could be recycled, as was not as widespread or readily available as the ads led consumers to believe (for example, the products could not be recycled at home).

Furthermore, the inaccurate impression that the products were fully recyclable combined with the claim "for a greener future" exaggerated the environmental benefit of the products and was therefore likely to mislead consumers about the environmental benefit that the products offered.

Finally, the ASA noted that while ELFBAR's initiative to increase consumer awareness around the recycling of single-use vapes went beyond its obligations in The Waste Electrical and Electronic Equipment (WEEE) Regulations 2013, there was no evidence that the brand was undertaking any unique recycling initiatives, and its competitors were also under legal obligation to finance the take-back of vapes for recycling.  The ads therefore misleadingly highlighted an environmental benefit that actually resulted from a legal obligation.

ASA Ruling on Kia UK Ltd

  • Date of ruling: 20 December 2023
  • Decision: upheld 
  • Number of complaints: 1

A paid-for Google ad and a website page for Kia advertised its Nero EV as having a 285 mile range. A driver who had not reached this range complained and alleged the ads were misleading.

According to the ASA, consumers were likely to believe that the car could achieve a maximum 285 mile range on a full battery charge in a significant amount of cases, and that 285 miles was the representative mileage for the car on a full battery. Additionally, consumers would understand that the advertised range could be achieved on an amount of charge which was advisable for the car.

However, neither ad revealed the mileage range was based on test data, nor disclosed that real-world variables like weather, style of driving and route could have had a material impact on the range of the car. In short, if the conditions were anything less than optimal then this would affect the advertised range. Although the first ad stated the range was "up to" 285 miles, this required clear qualification to explain what it represented.

Furthermore, the car testing was undertaken on a 100% charge, and since it was generally not advisable to charge the car beyond 80%, any claim based on a 100% charge was not representative. While the second ad was amended to feature the caveat: "[…] may not reflect real driving results" this was found at the bottom of the page and was not displayed prominently enough to counteract the misleading impact of the ad.

A similar ruling was handed down by the ASA to Mercedes-Benz in December 2023. The ASA found the ads were misleading with regard to range and again noted that drivers were advised to charge their cars to 80%, not 100% of battery capacity, indirectly inflating the car's purported range.

ASA Ruling on Procter & Gamble UK t/a Always

  • Date of ruling: 29 November 2023
  • Decision: upheld 
  • Number of complaints: 1

A TV ad for the Always Discreet Ultimate Day incontinence pad featured a side-by-side comparison of the product against a much thicker pad from the "Leading Brand".  A competitor challenged whether the basis of the comparison was misleading because the ad did not compare against the most appropriate product from a leading competitor (believed to be the Tena Discreet Maxi pad), and that the ad's sequencing of text and images misleadingly attributed a favourable statistic to Always.

The ASA considered that consumers would believe that Always had chosen to compare its incontinence pad with the closest equivalent absorbency from a rival brand, to showcase the similar protection it offered in a slimmed down size. The grading system of absorbency was not standardised across different brands so actual absorbency was not necessarily comparable. The ASA further noted that a Tena pad, not featured in the ad, outperformed the Always pad based on a universal standard for measuring theoretical absorption, and this pad was also thinner.

In addition, the sequencing of image and text was also found to be misleading in certain instances: the on-screen statistic "95% of 146 women agree it protects and is discreet" was followed by on-screen text reading "Always Discreet Day Pads vs Maxi Pad from the leading brand". In the absence of explanatory information, it was ruled that consumers would understand this as a qualifier of the preceding statistic, falsely implying that 95% of users preferred the Always pad to its Tena counterpart.

ASA Ruling on Viagogo AG

  • Date of ruling: 10 January 2024
  • Decision: upheld 
  • Number of complaints: 1

The ruling concerned two ads for Viagogo, seen on the NME website. The first ad detailed a list of summer gigs at BST Hyde Park, tickets for which were available on Viagogo. The second was a guide for how consumers could get tickets to Taylor Swift's "Eras" tour, again presenting Viagogo as a marketplace for tickets. FanFair Alliance, a campaign group against industrial-scale online ticket touting, alleged the ads were misleading as resale of tickets through secondary ticketing websites like Viagogo was prohibited by the events being advertised.

The ads did not clarify that the BST Hyde Park and Taylor Swift Eras tour terms and conditions did not accept resale tickets and that consumers who purchased them might be refused entry on the door. This was material information which was likely to affect a consumer’s decision to purchase tickets through Viagogo. Viagogo's guaranteed refund upon refused entry policy did not, in addition to the relatively small percentage of customers who had been refused entry, in the ASA's assessment, negate the misleading effect of the material omission of information regarding the events' ticket resale policy.

ASA Ruling on Supreme CBD Ltd t/a Supreme CBD

  • Date of ruling: 14 February 2024
  • Decision: upheld
  • Number of complaints: 3

Four X (Twitter) posts made by former footballers, John Hartson and Matt Le Tissier, and the founder of Supreme CBD, Anthony Fowler, promoted the brand's CBD gummies.

The posts were not obviously identifiable as marketing communications. The posts featured personalised codes which the footballers received commission for under the financial agreements they had respectively entered into with Supreme CBD. Both footballers had also been brand ambassadors for Supreme CBD and some of the posts featured the tag @Supreme_CBD, however, there was nothing in the content of the posts such as ‘ad’, which made clear the commercial intent behind them.

The post by the brand's founder was a response to a tweet about whether a Supreme CBD product worked for anxiety and insomnia. Despite being a direct endorsement of the product's functionality, the post did not disclose the owner's commercial interest nor make it clear on the face of it that it was an ad. This lack of transparency was deemed a breach of the advertising code.

ASA Ruling on Space NK

  • Date of ruling: 28 February 2024
  • Decision: upheld 
  • Number of complaints: 1

A competition shared on beauty company Space NK's Instagram account was challenged by a complainant who questioned whether the prize was administered according to the laws of chance and whether the promotion was handled fairly. The ASA further questioned whether the ad had omitted significant conditions of the promotion.

For this promotion, the criteria to enter was to follow, tag and comment on the post (and maintain zero likes on the comment) and to qualify for a bonus entry required the posting of an Instagram story tagging the brand. Space NK manually reviewed the validity of the entries before putting the usernames of participants into a piece of online software to randomly select the winner.

While the selection software was randomised, there was not enough evidence that all valid entries were included in the competition and that invalid entries had been excluded at the manual stage. Space NK did not monitor the zero likes comment criterion, nor could it verify that every disappearing story had mentioned the brand to secure a bonus entry. There was no policy in place to prevent this abuse and ensure fair chances for all participants, so the promotion was deemed to have been unfairly managed.

In addition, the post did not state the specific time the draw started, the specific closing time, or that participants could make more than one entry. These were considered significant conditions which were likely to affect consumers’ understanding of the promotion and their decision to participate, so their omission was likely to mislead.

As such the advertising rules regarding promotional marketing, administration and prize promotions were found to have been breached.

The ASA has been active in the regulation of social media-run competitions lately; on 7 February 2024 it ruled against Witcombe Festival which failed to award a prize as described in its marketing communications ("VIP BACKSTAGE EXPERIENCE, TICKETS & MORE!") or to provide a reasonable equivalent.

ASA Ruling on EFL Digital Ltd t/a EFL

  • Date of ruling: 20 December 2023
  • Decision: upheld
  • Number of complaints: 1

The English Football League (EFL) allowed users to sync event information to their e-calendars. Two synced calendar events produced by the EFL and Papa John's promoted a partnership deal which entitled EFL season or match ticketholders to 50% off a Papa John's pizza purchased in-store. The deal elicited a complaint by Sustain's Children's Food Campaign, which challenged whether the ads promoted products high in fat, salt or sugar (HFSS product ads) directed at children, after at least one child under the age of 16 received the promotion. 

The advertising code provides that HFSS products must not be directed at under-16s through the selection of media or the context in which they appear. If 25% or more of a medium's audience comprises under-16s, then it should not be used to advertise HFSS products. In instances where data has been leveraged to create an audience (e.g. a mailing list), CAP Guidance provides marketers should take all reasonable steps to remove under-16s. In the circumstances, users were required to share their date of birth on sign-up. While the EFL had access to this data and could have removed under-16s from the promotional marketing list, the EFL only opted to serve the ad to those aged 13 and over. As such, the brand partnership had not taken reasonable steps to exclude under-16s from receiving the HFSS promotion and had directed the ads at children through the selection of media in which they appeared.

Shortly after this ruling, CAP published advice to remind advertisers of their obligations in relation to HFSS product ads.

ASA Ruling on Kentucky Fried Chicken (Great Britain) Ltd t/a KFC

  • Date of ruling: 20 December 2023
  • Decision: partially upheld
  • Number of complaints: 11

An email and two poster ads for KFC read: "FINALLY F CKIN' GOOD", with the space between "F" and "C" covered with chips. KFC argued the middle word was an allusion to its trademarked slogan "Finger Lickin' Good" – a tagline since the 1950s – reinforced by the fact this slogan was peppered throughout the broader campaign. All 11 complainants thought the ads were offensive because they alluded to an expletive, and some questioned whether the ads were inappropriate for display where they could be seen by children.

The ASA considered that the email ad, which was sent to people who had subscribed to the brand's mailing list, was likely to be viewed by people who were acquainted with KFC's tagline. This ad, and one of the poster ads made several references to "finger lickin'", which made the true meaning of the obscured claim immediately clear. 

Conversely, the other poster ad did not contain references to "finger lickin". In the absence of this brand-centric context, the ASA considered that audiences would more readily associate the wording with an expletive, and as such cause widespread offence – particularly in a location (by a bus stop), where children would likely comprise at least part of the audience. Recent rulings have confirmed that the ASA takes a strict view when it comes to the purported use of the particular expletive at issue in this ruling.

ASA Ruling on Calvin Klein Inc (updated)

  • Date of ruling: 6 March 2024
  • Decision: partially upheld
  • Number of complaints: 2

This recently updated ruling from the ASA takes a second look at a poster ad featuring the singer FKA Twigs.  The ASA reviewed its original decision on its own initiative following widespread criticism, rather than as a result of a request for an independent review. 

The ASA received two complaints that three posters, two featuring Kendall Jenner and one featuring FKA Twigs, were offensive and irresponsible, insofar as they objectified women, and were inappropriately positioned given the posters' untargeted medium.

In the original ruling, the complaints were upheld against the FKA Twigs ad but not against the Kendall Jenner ad. 

In the revised ruling, the ASA acknowledged that the women were sexualised to an extent, but the images were not sexually explicit, and rather presented the women as being in control and confident, so the ads were not irresponsible or likely to cause serious or widespread offence. 

In terms of targeting, one of the Kendall Jenner ads was no more than mildly sexual and the other was subject to a placement restriction already, so these ads did not breach the advertising code.  However, the FKA Twigs ad, which was found to be overtly sexual given the overall combination of "seductive gaze", "pouting lips" and other ostensibly erotic imagery, was deemed unsuitable for display in an untargeted medium.

The ASA's blog post on the revised ruling included an announcement that, as part of its new five-year strategy, the ASA will review the thresholds for intervening against ads on grounds of offence and prioritise the most serious cases.

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