Marketing Matters | Review of August 2025

Welcome to this month's edition of Marketing Matters, where we look at advertising and marketing (A&M) trends in the retail and consumer sector.

We will be looking at:

• Some of the key takeaways for A&M departments following August's ASA rulings.
• Other top ASA stories.
• CMA news for the same period.

ASA rulings – key takeaways for your A&M departments

In August, the ASA handed down 40 rulings. We have highlighted some of the key rulings we think you and your A&M departments should be aware of.

As noted in previous editions of our Marketing Matters articles, on 7 April 2025, the BCAP and CAP Codes were updated in light of the introduction of the Digital Markets, Competition and Consumers Act 2024 (“DMCCA") to reflect changes introduced by the new legislation. Whilst the ASA will continue to consider complaints made prior to 7 April 2025, the old versions of the Codes will be applied to such complaints, with the new Codes being applied to complaints made on or after such date. August's rulings are therefore a mixed bag, using both the old and new rules.

Green heating and insulation – an eligibility

August marks the end of summer for many consumers and preparation for the colder months ahead. Many energy companies are, therefore, advertising their energy saving products/services. In a recent ruling against a loft and wall cavity insulation installation company, the ASA challenged whether an advertisement misleadingly omitted material information about the government funding available for its installing insulation products.

The ad in question, published in a local Northern Ireland newspaper, stated "INSULATION GRANT FUNDING AVAILABLE". The text beneath the heading read "Fully funded cavity wall and loft insulation grants are currently available". The company's website address and phone number also appeared on the ad along with the logo for the Northern Ireland Sustainability Energy Programme.

The company responded by stating they expected consumers to interpret the ad as meaning that there were grants available to pay for cavity wall and loft insulation. The word "grant" implied that there were specific sums available, for certain people, for a particular purpose. The ad, which was space constrained, included their website and phone number which outlined that consumers should contact them or visit their website for further information regarding the grant. As the ad was published in a local newspaper, it was clear that the grants were only available in Northern Ireland. A section of their web page set out the full eligibility criteria necessary to obtain the grant, which was aimed at consumers experiencing fuel poverty and limited to those of a certain income.

The ASA referred to the section of the CAP Code which makes clear that marketing communications must not mislead the consumer by omitting material information. It also highlighted guidance provided by the CMA, which advised that marketers referring to government funding anywhere in their ads should be clear that access to funding was subject to a consumer meeting certain criteria. The grant, being the Thermal Comfort Grant, which could be used to fully cover the cost of cavity wall or loft insulation, LED light bulbs, or a hot water tank jacket was subject to an eligibility criteria. Consumers would have to be owner occupiers of a property in Northern Ireland who either had a single person annual household income or pension less than £28,000 gross, or to couples or single parent families with an annual income or pension less than £40,000 gross.

The ASA held that the ad omitted material information and was likely to mislead consumers. Stating "Fully funded cavity wall and loft insulation grants are currently available" did not include information about the eligibility criteria having to be satisfied in order to receive the funding. The absence of the crucial information was considered to have given consumers the impression that all consumers were eligible for the cavity wall and loft insulation funding.

The ASA is continuing the crack down on greenwashing claims, as noted in previous editions of our Marketing Matters articles. This ruling is no different and forms part of a wider piece of work on advertising for greener heating and insulation products, identified for investigation by the ASA through the use of its own AI system.

Subscriptions and minimum periods

A health and fitness company was challenged by the ASA for failing to make clear that their subscription has a minimum commitment period of 12 months. The company's website featured pricing information which indicated that consumers could "Pay monthly [at] £7.99" or "Pay once £79.99 (Annual)". A button stated, “Buy now” under each option, which linked through to a checkout page.

The ASA received 4 complaints challenging whether the ad made it clear that the subscription had a minimum 12 month term. The company responded by stating that they clearly presented the commitment term to consumers on their website. Before customers were able to complete the check-out process, they had to tick a box confirming that they had read and accepted the Terms and Conditions which included the 12 month minimum term. Consumers who did not select the box were presented with a warning message.

The ASA ruled that consumers would understand the claims “Pay monthly £7.99” and “Pay once £79.99 (Annual)” to mean they had the option to pay either £7.99 on a rolling monthly basis, or a one-off payment. They considered that in the absence of any information on the pricing page itself, consumers were likely to interpret the £7.99 monthly option as something which could be cancelled at any time. Consumers who selected the monthly plan were therefore committed to a minimum total payment of £95.88. The ASA held that this was significant information which consumers needed upfront to make an informed decision about whether or not to proceed with the subscription. The pricing page made no reference to the minimum commitment term of 12 months and only appeared at the check-out phases in small subtext beneath the payment button. As this was material information, including it in the separate T&Cs was not sufficient. The ad was held to be misleading and a breach of the CAP Code.

Know your audience when it comes to HFSS products

A fast food company's video advertisement on YouTube was challenged for directing high in fat, salt and sugar ("HFSS") products to children because of the selection of media or context it appeared in, being during a Minecraft feature on a channel called Milo and Chip. The video imagery showed a cookie being broken apart to reveal the Cadbury Creme Egg filling. 

The company acknowledged that the cookie in question was a HFSS product and had insured that the ad was not directed at under 16 year-olds through the selection of media or the context in which it appeared. They confirmed that the campaign has followed YouTube's policy for HFSS products. Additionally, the ad was only shown to signed-in users, restricted to over 18s, excluded all YouTube Made for Kids channels, and noted that Minecraft has a broad and ageing audience. Worldwide users under 15 years of age made up less than 21% of the game's player base. They acknowledged that the Milo and Chip YouTube channel featured graphics which could appeal to children. However, the channel had a broad audience and was not specifically aimed at children, nor was it labelled a Made for Kids channel.

The ASA iterated that the CAP Code clearly stated that HFSS product ads must not be directed at individuals under the age of 16, through the selection of media or the context in which they appeared. Further, it noted that an Ofcom report, Children and Parents: Media Use and Attitudes Report 2025, stated that Minecraft fell within the most popular type of game among children and was highly popular with under-16s, despite not being exclusively aimed at children. The ASA also took into account the specific channel on which the ad appeared, highlighting that the channel's branding used cartoon-style illustrations of the main characters and characters were voiced in a manner similar to a children's cartoon.

Despite age-based targeting being applied to exclude signed-in users under the age of 18 and being excluded from Made for Kids channels, the ASA considered the exclusions insufficient to prevent the ad being seen by children. The ad appeared during a video which featured content likely to appeal to children and, therefore, the ASA concluded it had breached the Code. 

Takeaways

The key takeaways from the ASA rulings this month are:

• The ASA continues to use their AI system to actively identify greenwashing/green ads.
• Be clear on any minimum commitment terms in subscription: The ASA is likely to consider any minimum commitment term a material piece of information and including the information in separate T&Cs would not be sufficient.
• Take care when advertising HFSS products: Currently, HFSS products are a hot topic as the government is set to open a new consultation on the 'brand exclusion' applicable to HFSS advertisement (see further detail below). The ASA are, therefore, likely to be monitoring these ads closely.

Top ASA stories last month

Consultation on the brand exemption for High in Fat, Sugar or Salt ("HFSS")

In 2022, the UK Government introduced legislation amending the Communications Act 2003 to place additional restrictions on certain food and drink advertising. In 2023, the ASA developed implementation guidance to set out how it would enforce the restrictions. In January 2025, the ASA announced that, having considered the feedback to that consultation and after obtaining further legal advice, some parts of its guidance required revision, particularly those relating to brand advertising.

The new legislation does not provide an explicit exemption for brand advertising, for that reason, the ASA could not give certainty as to whether particular types of brand advertising would be in or out of scope of the restrictions. As this poses significant financial risk to advertisers and retailers, the government considered that there was a need to resolve the uncertainty and provide clarity to businesses. To that end, the government is set to pass secondary legislation to explicitly exempt ‘brand advertising’ from the advertising restrictions.

To allow time to develop and consult on the draft Advertising (Less Healthy Food) (Brand Advertising Exemption) Regulations 2025, secondary legislation was passed on 3 June 2025 to confirm 5 January 2026 as the new date upon which the restrictions take effect.

The consultation, with an aim of gathering views on the draft guidance and focused solely on the nature of the brand advertising exemption set out in the regulations closed on 06 August 2025. We await the results of the consultation and publication of the final guidance in this area.

Recent CMA activity

Newly published guidance on the CMA's enforcement powers

Under the DMCCA 2024, the CMA has the legal power to enforce some consumer laws ‘directly’ – meaning they can decide whether a business has broken consumer law. These powers came into effect in April 2025. On 28 August 2025, the CMA published guidance on how it expects to use its direct enforcement powers to investigate and decide upon suspected breaches of consumer law, which summarises its full guidance available here. The summary offers a high-level overview of the CMA's planned activity and is a good place to start before the more detailed review.

Dynamic pricing guidance

Dynamic pricing is where prices are adjusted frequently depending on demand. It is commonly used in a range of sectors including air travel, hotels, and ride hailing apps. The CMA has recently launched a project to better understand how and when dynamic pricing is used across the economy.

The guidance includes tips for businesses using dynamic pricing, which include:

• Being transparent about pricing;
• Being clear that prices can change;
• Considering what the consumer needs to know;
• Presenting information clearly;
• Explaining important terms;
• Considering vulnerable consumers;
• Avoiding putting undue pressure on consumers to make snap decisions; and
• Not changing prices while consumers are paying.

It is worth noting that under the new enforcement regime introduced by the DMCCA, the CMA now has the ability to decide whether businesses and individuals have infringed consumer law and impose fines for poor corporate practices of up to 10% of worldwide turnover. As part of these powers, the CMA will be actively reviewing pricing practices and using its new enforcement powers to seek compliance.