MISLEADING ADVERTISING

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Notes of Guidance

3. Misleading advertising

Background
The ASA may take the “Consumer Protection from Unfair Trading Regulations 2008” into account when it adjudicates on complaints about advertisements that are alleged to be misleading. See Appendix 1 for more information about those Regulations.

The ASA will take into account the impression created by advertisements as well as specific claims. It will adjudicate on the basis of the likely effect on consumers, not the advertiser’s intentions.

Other sections of the Code contain product-specific or audience-specific rules that are intended to protect consumers from misleading advertisements. For example, the Children and Medicines sections of the Code contain rules that apply, as well as the general rules, to advertisements that fall under those sections.

If an advertisement encourages consumers to buy a product or service through a distance-selling mechanism, broadcasters should seek legal advice to ensure they comply with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

Rules

General

3.1 Advertisements must not materially mislead or be likely to do so.

CLEARCAST GUIDANCE
'Can' vs. 'Could' - The ASA defines ‘Can’ as meaning ‘in every case’. Care should be taken to only use it where appropriate. Most often, ‘Could’ is a more suitable option.

3.2 Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.

Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the ad is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.


3.3 For advertisements that quote prices for an advertised product or service, material information [for the purposes of rule 3.2] includes:

  1. 3.3.1 the main characteristics of the product or service

  1. 3.3.2 the identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the advertiser is acting

  1. 3.3.3 the price of the advertised product or service, including taxes, or, if the nature of the product or service is such that the price cannot be calculated in advance, the manner in which the price is calculated

  1. 3.3.4 delivery charges

  1. 3.3.5 the arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect

  1. 3.3.6 that consumers have the right to withdraw or cancel, if they have that right.

CLEARCAST GUIDANCE
Additional guidance can be found in the CTSI Guidance for Traders on Pricing Practices, which can be found here:
https://www.businesscompanion.info/en/news-and-updates/new-pricing-practices-guidance-for-retailers

CAP has offered further commentary on the CTSI guidance here:
https://www.cap.org.uk/News-reports/Media-Centre/2016/Insight-Reference-pricing.aspx#.WJsEZlXc5EZ

Clearcast has developed a Retail Substantiation Form which covers much of the information required when confirming sales, promotions and other price reductions. The document is available here.

The ASA has ruled on these issues. Links to some sample rulings are below:

https://www.asa.org.uk/rulings/geo24-uk-ltd-a14-283440.html

https://www.asa.org.uk/Rulings/Adjudications/2013/10/Money-Expert-Ltd/SHP_ADJ_235527.aspx#.VdWievlViHg

3.4 Obvious exaggerations (“puffery”) and claims that the average consumer who sees the ad is unlikely to take literally are allowed provided they do not materially mislead.

3.5 Subjective claims must not mislead the audience; advertisements must not imply that expressions of opinion are objective claims.

3.6 Advertisements must not mislead by omitting the identity of the advertiser.

Rule 8.2 requires broadcasters to give enquirers the identity and geographical address of distance selling advertisers if that information is not included in the ad.

Advertisers should note the law requires advertisers to identify themselves in some advertisements. Advertisers should take legal advice.

CLEARCAST GUIDANCE
If the identity of advertisers is not obvious, Clearcast may require it to be stated, to avoid any misleading impressions.

3.7 Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context.

3.8 No ad may use images of very brief duration, or any other technique that is likely to influence consumers, without their being fully aware of what has been done.

Substantiation

3.9 Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.

CLEARCAST GUIDANCE
Evidence should be comprehensive and well-organised. In order to assist advertisers and their agencies in supporting their claims, Clearcast has devised the Claims Support Model (CSM) to be completed by advertisers. Clearcast strongly recommends its use; particularly for supporting claims of a technical and/or scientific nature The CSM and its Guidance Notes are available here: Clearcast forms


If research is submitted as evidence, Clearcast expects it to be well designed and conducted. Clearcast may require research to be assessed by a qualified researcher where there is doubt about its quality and the conclusions drawn from it.

All substantiation received by Clearcast is held in confidence; it is revealed only to Clearcast consultants in the process of approving claims, to Clearcast shareholder broadcasters in the event of escalation and, on request, to Regulatory organisations during the course of investigations. Advertisers will normally be informed when this is done.

Clearcast recommends that substantiation is supplied alongside scripts with the first submission as this can reduce the time needed for approval.

Clearcast does not generally set detailed requirements for evidence. However there are specific product categories where protocols or guidance have been devised. Those specific categories are:

Nappies – See Appendix 1

Comparative Antiperspirant Performance – See Appendix 2

Anti-Microbial Claims – See Appendix 3

Medical Evidence

Where the advertised products are medical ones, the evidence submitted should usually include a copy of the relevant MHRA Marketing Authorisation and/or the Summary of Product Characteristics (SPC). Where proposed claims are medical or dental in character and go beyond those outlined in the SPC, supporting evidence should be in the form of peer- reviewed published studies or data of equivalent standing. Clearcast, as well as making its own assessment of material, may refer substantiation to one of its panel of consultants. Consultants are tasked with assessing evidence and advising Clearcast on the extent to which claims are supported.

Agencies and advertisers should allow extra time for work that needs consultant input.

The ASA has ruled on this issue. Sample rulings can be found below:

https://www.asa.org.uk/rulings/mead-johnson-nutrition-uk-ltd-a15-298167.html

https://www.asa.org.uk/Rulings/Adjudications/2015/8/The-Hospital-Medical-Group-Ltd/SHP_ADJ_300184.aspx#.VdWmcflViHg


Qualification

3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.


3.11 Qualifications must be presented clearly.

BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule 3.11

CLEARCAST GUIDANCE
The BCAP Guidance is available here

Exaggeration

3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service.

CLEARCAST GUIDANCE
CAP has published a guidance note on the use of production techniques in cosmetics advertising, available here:
https://www.asa.org.uk/resource/cosmetic-production-techniques.html

The ASA has ruled on this issue. Links to sample rulings are below: https://www.asa.org.uk/rulings/microsoft-corporation-a14-287416.html

3.13 Advertisements must not present rights given to consumers in law as a distinctive feature of the advertiser’s offer.

CLEARCAST GUIDANCE
The ASA has ruled on this issue. Links to sample rulings are below:

https://www.asa.org.uk/Rulings/Adjudications/2015/7/Elevate-Credit-International-Ltd/SHP_ADJ_295195.aspx#.VdWr7PlViHg

3.14 Advertisements must not suggest that their claims are universally accepted if a significant division of informed or scientific opinion exists.

3.15 Advertisements must not mislead about the nature or extent of the risk to consumers’ personal security, or that of their families, if they do not buy the advertised product or service.

CLEARCAST GUIDANCE
Any appeal to fear must be justified and proportionate.

Prohibited Claims

These rules apply regardless of any substantiation presented in support of the claims.

3.16 Advertisements must not claim that a product or service is able to facilitate winning in games of chance.

CLEARCAST GUIDANCE
See Section - 17 Gambling.

3.17 Advertisements must not explicitly claim that the advertiser’s job or livelihood is in jeopardy if consumers do not buy the advertised product or service.

Prices

Background
Price statements in advertisements should take into account the Department for Business, Innovation and Skills (BIS) Pricing Practices Guide.

CLEARCAST GUIDANCE
The BIS guide has been replaced by the CTSI Guidance For Traders on Pricing Practices, which is available here:
https://www.businesscompanion.info/en/news-and-updates/new-pricing-practices-guidance-for-retailers

Definition
Price statements include statements about the manner in which the price will be calculated as well as definite prices.

3.18 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product or service depicted in the ad.

CLEARCAST GUIDANCE
Clearcast will ask for written confirmation that prices quoted in advertisements are accurate and that goods are available at the quoted price.

Where price reductions are offered there are legal requirements to be met concerning the circumstances in which price reductions are offered and Clearcast will need appropriate assurances about compliance.

Words or phrases which imply a reduction, such as ‘Now only …’ are also subject to the above linked guidance.

If there is any doubt about the legality of a proposed price reduction Clearcast will ask for a reassurance from a local trading standards officer, lawyer or other appropriately qualified person.

The ASA has ruled on this issue. The rulings can be found here:

https://www.asa.org.uk/rulings/hpas-ltd-a17-376765.html

https://www.asa.org.uk/rulings/dsg-retail-ltd-a14-287173.html


3.19 Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers. VAT-exclusive prices may be given only if all or most consumers pay no VAT or can recover VAT; advertisements that quote VAT-Exclusive prices must prominently state the amount or rate of VAT payable if some consumers are likely to pay VAT.

3.20 If a tax, duty, fee or charge cannot be calculated in advance, for example, because it depends on the consumer’s circumstances, the ad must make clear that it is excluded from the advertised price and state how it is calculated.

3.21 Advertisements that quote instalment costs must state the total price of the advertised product or service and the instalment frequency as prominently as the cost of individual instalments.

3.22 Advertisements that state prices must also state applicable delivery, freight or postal charges or, if those cannot reasonably be calculated in advance, state that such charges are payable.

CLEARCAST GUIDANCE
The ASA has ruled on this issue. Links to sample rulings are below:

https://www.asa.org.uk/Rulings/Adjudications/2013/10/Money-Expert-Ltd/SHP_ADJ_235527.aspx#.VdWvCvlViHg

3.23 If the price of one product or service depends on another, advertisements must make clear the extent of the commitment consumers must make to obtain the advertised price.

CLEARCAST GUIDANCE
The ASA has ruled on this issue. Links to sample rulings are below:

https://www.asa.org.uk/Rulings/Adjudications/2013/8/British-Sky-Broadcasting-Ltd/SHP_ADJ_227982.aspx#.VdWvrflViHg

3.24 Price claims such as “up to” and “from” must not exaggerate the availability or amount of benefits likely to be obtained by consumers.

CLEARCAST GUIDANCE
For both ‘up to’ and ‘from’ claims it is widely accepted that 10% of the advertised product or service should be available at the headline price (or, for example, percentage discount).

The ASA has adjudicated on this issue. The adjudication can be found here

ADDITIONAL GUIDANCE FOR PRICE CLAIMS

Refunds

Offers to refund money if merchandise is found at a cheaper price elsewhere are acceptable only if it is easy and straightforward for consumers to take advantage of them. Such offers should offer something in addition to customers’ statutory rights. They are not acceptable if they indicate no more than a willingness to replace or refund the price of defective merchandise.

Retailer Price Comparisons

Particular care is needed in advertisements that include price comparisons between retailers. CAP has produced a Help Note for this area and Clearcast has agreed to have regard for the provisions of it. The Help Note is available here

'Lowest' or 'Best' Price Claims

These types of claims are acceptable if advertisers are able to demonstrate that their prices are lower than those of any of their competitors. Advertisers must also show that they carry out ongoing monitoring to ensure their prices continue to beat, not just match, competitors’ prices. These sorts of claims should be accompanied by a price guarantee which should be mentioned in the ad (see below.)

Rapid reaction in the market place often means that this sort of claim may not remain valid over an extended period. Advertisers should react immediately to remove such claims from the advertisements should they become invalid.

'Unbeatable' Price Claims

‘Unbeatable’ price claims are permitted if advertisers can demonstrate that their prices are as low as, but not necessarily lower than, those of any of their competitors.

Claims in this category are sometimes expressed e.g. 'you can't buy cheaper'. Advertisers must provide evidence that they monitor competitors' prices on an on-going basis to ensure that their own prices remain unbeatable.

Claims of this nature should be supported by a price guarantee (see below), which should be mentioned in the commercial.

Lowest Prices Guaranteed/Lowest Price Guarantees

There is a difference between claims such as ‘lowest prices guaranteed” and “lowest price guarantee”. When lowest prices are guaranteed, Clearcast expects to see evidence that the advertiser has the lowest prices available in the market. A price guarantee (or promise) means advertisers undertake to match or beat competitors’ prices. CAP has produced a guidance note on this issue, which can be found here

Price Promises

Price promises should not be confused with a ‘lowest prices guarantee’ or ‘lowest prices guaranteed’. However, the term 'price promise' should refer to a willingness to reimburse customers if they find an advertised product at a lower price elsewhere. Advertisements should outline the nature of any price promises by stating any limitations to the promise e.g. 'Our price promise means that if you find an item cheaper elsewhere within the next seven days, we’ll refund the difference”.

“Free” claims

Principle
Advertisements must not describe a product or service as “free”, “gratis”, “without charge” or similar if the consumer has to pay anything other than the unavoidable cost of responding to the promotion and collecting or paying for delivery of the item.

3.25 Advertisements must make clear the extent of the commitment consumers must make to take advantage of a “free” offer.

Advertisements must not describe items as “free” if:

  1. 3.25.1 consumers have to pay for packing, packaging, handling or administration of the “free” product or service

  1. 3.25.2 the cost of response, including the price of a product or service that consumers must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion

  1. 3.25.3 the quality of the product or service that consumers must buy has been reduced

CLEARCAST GUIDANCE
If an advertiser offers free samples, Clearcast will require assurances that there is enough stock to meet anticipated demand for the time the ad is on air. Given that demand may be higher than expected ads should state ‘while stocks last’ or ‘limited stocks’. Clearcast will also ask for assurances that advertisements will be removed from air if stocks run out before the end of the planned airtime.

The ASA has ruled on this issue. The ruling can be found here

3.26 Advertisements must not describe an element of a package as “free” if that element is included in the package price, unless consumers are likely to regard it as an additional benefit because it has recently been added to the package without increasing its price.

CLEARCAST GUIDANCE
Clearcast accepts that a new element to a package can be described as ‘free’ for a maximum of six months after which time the element becomes an intrinsic part of the package. For weekly supplements in newspapers the period for which the supplement can be called ‘free’ is three months, for monthly supplements it’s six months.

3.27 Advertisements must not use the term “free trial” to describe a satisfaction or your money back” offer or an offer for which a non-refundable purchase is required.

CLEARCAST GUIDANCE
BCAP and CAP have published joint guidance on the use of “free”. The guidance is here

Availability

3.28 Broadcasters must be satisfied that advertisers have made a reasonable estimate of demand.

CLEARCAST GUIDANCE
The ASA has ruled on this issue. The ruling can be found here

3.29 Advertisements that quote prices for featured products must state any reasonable grounds the advertisers have for believing that they might not be able to supply the advertised (or an equivalent) product at the advertised price, within a reasonable period and in reasonable quantities. In particular:

  1. 3.29.1 if estimated demand exceeds supply, advertisements must make clear that stock is limited

  1. 3.29.2 if the advertiser does not intend to fulfil orders, because the purpose of the ad is to assess potential demand, the ad must make that clear

  1. 3.29.3 advertisements must not mislead consumers by omitting restrictions on the availability of products; for example, geographical restrictions or age limits.

CLEARCAST GUIDANCE
If advertised products may not be available at all stores, Clearcast will ask for a disclaimer stating e.g. ‘subject to availability’ or ‘selected stores only’.

If advertised products are widely available in all stores but stocks may be limited, advertisements should include a statement to indicate that e.g. ‘While stocks last’.

If an ad’s offer ends less than 14 days before the ad’s last air date (7 days for grocery) an ‘offer ends’ date should be included in the ad. This is so viewers seeing the ad on its last air date have enough time to take up the offer.

If an ad includes an end of offer date, Clearcast will seek assurances that the offer will not be extended without good reason. The banned practices element of the Consumer Protection from Unfair Trading Regulations (CPRs) 2008 (schedule 7), which is mirrored in the rule 3.31 of the Code could mean that any ad advertising an extension could render the original ad misleading.

3.30 Broadcasters must be satisfied that advertisers who advertise products at specific prices will not use the technique of switch selling, in which their sales staff refuse to show the advertised product, refuse to take orders for it or to deliver it within a reasonable time or demonstrate a defective sample of it to promote a different product.

3.31 Advertisements must not falsely claim that the advertiser is about to stop trading or move premises. They must not falsely state that a product or service, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice.

3.32 Advertisements must not mislead consumers about market conditions or the possibility of finding the product or service elsewhere to induce consumers to buy the product or service at conditions less favourable than normal market conditions.

Comparisons

Principle
The ASA will consider unqualified superlative claims as comparative claims against all competing products or services.

Superiority claims must be supported by evidence unless they are obvious puffery (that is, claims that consumers are unlikely to take literally). Objective superiority claims must make clear the aspect of the product or service or the advertiser’s performance that is claimed to be superior.

Comparisons with Identifiable competitors

3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.

CLEARCAST GUIDANCE
Advertisements containing comparisons with other advertisers, or other products, are acceptable in the interest of competition and public information.


3.34 Advertisements must compare products or services meeting the same need or intended for the same purpose.

3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.

CLEARCAST GUIDANCE
Advertisements that include comparisons should also include information stating how viewers can verify their validity. This can be done by the inclusion of a website address where the relevant information can be found or by the inclusion of a postal address from which the information can be sent to enquirers.

The ASA has ruled on this issue. The ruling can be found here

3.36 Advertisements must not create confusion between the advertiser and its competitors or between the advertiser’s product or service, trade mark, trade name or other distinguishing mark and that of a competitor.

3.37 Certain EU agricultural products and foods are, because of their unique geographical area and method of production, given special protection by being registered as having a “designation of origin”. Products that are registered as having a “designation of origin” should be compared only with other products with the same designation.

Other Comparisons

3.38 Advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, consumers. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage.

Price Comparisons

3.39 Advertisements that include a price comparison must make the basis of the comparison clear.

CLEARCAST GUIDANCE
The ASA has ruled on this issue. The ruling can be found here

3.40 Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold.

CLEARCAST GUIDANCE
The ASA has ruled on this issue. The ruling can be found here

The word ‘sale’ should not be used in relation to ‘after event price’ style offers. ‘Sale’ should only be used where the product in question has been offered at the higher price previously in a manner consistent with the BIS Pricing Practices Guide. The ASA has ruled on this issue here.

Imitation and Denigration

3.41 Advertisements must not mislead consumers about who manufactures the product.

3.42 Advertisements must not discredit or denigrate another product, advertiser or ad or a trade mark, trade name or other distinguishing mark.

CLEARCAST GUIDANCE

As a general rule the principal purpose of an ad should be to promote the advertiser’s goods or services, not to damage the reputation of other advertisers.

All comparative advertising and particularly advertising which names or otherwise identifies competitors’ products should not unfairly attack their competitor.

Advertisements whose function or effect is to denigrate competitors are not acceptable even if the comparative claims are true. Clearcast is likely to reject advertisements of this nature.


3.43 Advertisements must not take unfair advantage of the reputation of a competitor’s trade mark, trade name or other distinguishing mark or of the designation of origin of a competitor product or service.

3.44 Advertisements must not present a product as an imitation or replica of a product or service with a protected trade mark or trade name.

Endorsements and Testimonials

Background
Advertisements that include endorsements or testimonials might also be subject to Section 6: Privacy.

3.45 Testimonials or endorsements used in advertising must be genuine, unless they are obviously fictitious, and be supported by documentary evidence. Testimonials and endorsements must relate to the advertised product or service. Claims that are likely to be interpreted as factual and appear in advertisements must not mislead or be likely to mislead.

CLEARCAST GUIDE
The ASA has ruled on this issue. The ruling can be found here

3.46 Advertisements must not feature testimonials without permission.

CLEARCAST GUIDANCE
Clearcast will ask for verification that testimonials are genuine and may ask for a specific form to be signed. A copy of the testimonial form can be found here

Testimonials may be used as expressions of subjective opinion but should not make or imply objective claims that cannot be supported by evidence.

Testimonials should be unsolicited from users of advertised products. This does not rule out testimonials given in reply to a manufacturer's question (e.g. in a survey), provided this is made clear in the ad itself.

Fictional Playlets

Where characters in a playlet are clearly expressing, in dramatised form, the claims of the advertiser, they are not regarded as testimonials. Such playlets should not, however, imply that situations shown are real. If an element in a creative treatment, e.g. use of a documentary-style approach could mislead or confuse viewers, it may be necessary to include some clarification, e.g. 'Based on a real event' or 'Reconstruction using actors'.

It is not possible to lay down hard-and-fast rules about the kind of treatment which might create the impression of a testimonial as this depends on the atmosphere of the advert. Use of obvious fantasy or farce is likely to be acceptable.

The use of any of the following, however, may well give an appearance of reality to which the testimonial requirements would apply:

  • People who are identified, by name or as private individuals, whose addresses are given or who are shown against a realistic background of home, family, work, etc.
  • People shown expressing opinions or reporting experiences in an interview situation.
  • People presented in a way that suggests they are experts or have knowledge which would lend authority to their opinions.
  • Celebrities endorsing the product or being described as users of the product unless they are clearly established spokespeople for the advertised brand.
  • Named real-life settings, e.g. the office of a named manufacturer.
  • Testimonial letters (whether or not the writer's name is given).
  • Actors as Testimonees. Unless advertisements make it clear, actors should not be used to present testimonial on others’ behalf.

3.47 Advertisements must not display a trust mark, quality mark or equivalent without the necessary authorisation. Advertisements must not claim that the advertiser (or any other entity referred to in the ad), the ad or the advertised product or service has been approved, endorsed or authorised by any person or body if it has not or without complying with the terms of the approval, endorsement or authorisation.

3.48 Advertisements must not falsely claim that the advertiser, or other entity referred to in the ad, is a signatory to a code of conduct. Advertisements must not falsely claim that a code of conduct has an endorsement from a public or other body.

Guarantees and After-sales Service

3.49 Advertisements must not use the word “guarantee” in a way that could cause confusion about a consumer’s rights.

3.50 Advertisements must make clear each significant limitation to an advertised guarantee (of the type that has implications for a consumer’s rights). Broadcasters must be satisfied that the advertiser will supply the full terms of the guarantee before the consumer is committed to taking it up.

CLEARCAST GUIDANCE
The ASA has ruled on this issue. The ruling can be found here

3.51 Broadcasters must be satisfied that advertiser will promptly refund consumers who make valid claims under an advertised money-back guarantee.

3.52 Advertisements must not falsely claim or imply that after-sales service is available in an EEA member state in which the advertised product or service is not sold.

3.53 If an ad in a language other than an official language of the EEA State where the trader is located offers after-sales service but the after-sales service is not available in the language of the ad, broadcasters must be satisfied that the advertiser will explain that to consumers before a contract is concluded.