Marketing Matters | January 2024

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

We will be looking at:

• The ASA's key January rulings and their relevance to A&M departments.
• The biggest ASA stories of the month.
• The CMA's A&M related activity for the same period.

ASA rulings – key takeaways for your A&M departments

In January, the ASA handed down 27 rulings. Below are some of the ones we think you and your A&M departments should be aware of:

Misleading claims

It came as somewhat of a surprise, this month, when misleading claims came out as the main bugbear of the ASA. We take a look at some of these below.

An online retailer of phones and computers had advertised a smartphone on their website, stating that it could be pre-ordered with "stock exp. Aug '23". It turned out that the company had experienced delays with their suppliers, and as a result there was no real prospect of stock arriving by August 2023 (or even January 2024). Given that the company could not substantiate its availability claim, the ad was deemed likely to mislead customers and, therefore, breached the CAP Code.

Another ad, this time by a second-hand ticket sales platform, was found to be in breach of the advertising rules by promoting second-hand tickets for the Taylor Swift Era's tour. Although reselling tickets wouldn't necessarily constitute a breach, it did in this instance, because the terms and conditions of the specific tour stated that resold tickets would be automatically invalidated. As such the associated ad was held to be misleading.

Irresponsible advertising

The ASA ruled that 15 ads were socially irresponsible in January.

A well-known fashion retailer had an ad on a poster banned showing singer FKA Twigs modelling a denim shirt that was draped across her shoulder and drawn across her body. The placement of the denim shirt meant that parts of the singer's body were highly exposed. The text at the top of the poster stated “Calvins or nothing”. The ASA considered that the way the ad was presented drew viewers' focus to the singer's body, rather than the advertised product and therefore presented the singer as a "stereotypical sexual object."

As a result, the ad was found to breach the CAP Code, as it was irresponsible and likely to cause serious offence. Interestingly, two other posters (including one by the same retailer, which included an image of the male actor, Jeremy Allen White) were not found to be in breach, despite nudity and hints of a sexual nature. This was, the ASA says, because the focus was not on the models' bodies, nor were the models being objectified.

Baby safety was also an issue this month, when an ad posted on the website of a retailer of children and baby products was banned by the ASA. The ad showed an image of the retailer's "Baby Elephant Hug Pillow" and a sleeping infant, lying on its side between the elephant's legs, cuddling said pillow. The issue here was the fact that the infant was shown in an unsafe sleeping position associated with Sudden Infant Death Syndrome (SIDS) and there was a danger that it might encourage unsafe practices by anyone who purchased the pillow.

Despite the company responding and arguing that (i) no cot was featured on the image, so sleep was not suggested and (ii) the retailer advised against leaving children unsupervised with the pillow, the ASA still found that the overall impression of the ad (including the use of the word "hug" in the product description) encouraged unsafe sleep practices and banned the ad.

Harmful and/or offensive advertising

This month, harmful and potentially seriously offensive advertising made up nine of the ASA's rulings.

A charity got in trouble when the ASA found that, despite the worthy cause of their campaigns, some of the adverts had an overly sexual focus and used the F-word, leading ultimately to the finding that the ads would be harmful and potentially offensive to consumers.

In another case, an online clothing retailer was found to have sexualised a young child (between 7 and 10 years old), due to the fitting of the swimwear the child was modelling, as well as the mildly seductive tone of the advert (due to the child's pose and use of red lip gloss). Further, the ASA noted that the ads focussed too heavily on the child's body, with her face being cut out of the picture. As a result of all of this, the ASA found the ad to be harmful and in breach of the CAP Code.

Other types of claims to be aware of

Eight ads were found to lack substantiation. These included claims made by a broadband provider that customers would be able to save a certain amount of money by switching from BT broadband, even though they were unable to substantiate any such claims, as well as claims being made by a Swedish range cooker manufacturer which stated that its cooker had "the lowest running costs for any heat-storage cast-iron range cooker." Although it sounded impressive, the company was unable to substantiate the claims.

Interestingly, in light of a suspected rise in green claims in breach of advertising rules over the last few months, not a single environmental claim got banned by the ASA in January's rulings. This is certainly positive, and it will be interesting to see if this is the start of a trend of compliant green claims. We will keep monitoring the position.

Takeaways

The key takeaways from the ASA rulings this month are:

• Be certain about your stock – Availability claims can go wrong if you end up not having the stock you have promised consumers at the times promised. If you say you will have stock and you don't, this would be seen as misleading consumers and be in breach of the advertising codes.

• Back it up – In the same vein as above, make sure you can back up the claims you make. Keep records and evidence about what you are telling consumers, so you can substantiate your claims if asked by the ASA to do so.

• Cool it – Be careful with the use of strong language and sexualised advertising. Think about whether your ads are properly targeted and suitable for your target audience. If your audience is likely to be offended by what you are saying, you may wish to tone it down.

Top ASA stories last month

Dry January, anyone?

If not, that's fine too, but the ASA has pointed out some of the things that A&M departments want might to watch out for if they bring Dry January into their advertising. The key words are: "Social responsibility" – and they're fairly important ones.

Nothing in your advertising should "lead people to adopt styles of drinking that are unwise", such as excessive drinking. It is also not OK to exploit the young immature or vulnerable groups of people. Lastly, suggesting that alcohol is indispensable and a good way of overcoming boredom, loneliness or other problems would be a blatant breach of marketing rules. So, if you are thinking of suggesting Dry January is a bad idea – according to the ASA, that is probably not a good idea.

In terms of non-alcoholic drinks – or indeed "alcohol alternatives" – we took a look at what the ASA is doing in this regard in our November newsletter.

Let's get social

In January, the ASA put out several articles with guidance for advertising on social media platforms, so that anything you do complies with the advertising codes. Guidance ranges from Facebook to X (formerly Twitter) and covers LinkedIn and YouTube too.

Some of the key takeaways from these articles are:

• Make sure that any marketing communications are identifiable as such. If you have influencers promoting your products, make sure that they know what the advertising rules require (in previous editions, we touched on the ASA looking at putting out educational material targeted specifically at influencers) and that they follow them correctly.

• Make sure your ads are targeted to the right audience. Certain types of advertising have age restrictions and it is important that the tools you use to ensure ad targeting are up-to-date and doing their job properly.

• The usual suspects still apply. Ads must be accurate and not misleading. Watch out for marketing that might be socially irresponsible or likely to cause serious offence or harm. You know these... Even so, there's never a bad time to be extra vigilant.

CMA activity in December

The good stuff

Following our comments on the CMA's investigation into the baby formula market in November, it appears that several supermarkets have cut prices on the Aptamil baby formula, after producer Danone cut the price charged to the majority of retailers by 7%. This is good news for parents who have also been hit by the ongoing cost-of-living crisis.

No use faking it

Following the Department for Business and Trade's consultation on ‘Smarter Regulation: Improving consumer price transparency and product information for consumers’, the government has now published its response.

In this response, the government has said that it "will work with the CMA to publish guidance to explain the law and set out what ‘reasonable and proportionate’ steps traders are expected to take to remove and prevent consumers from encountering fake reviews; and to prevent any other information presented on the platform that is determined or influenced by reviews from being false or in any way capable of misleading consumers." The CMA will be consulting on and developing detailed guidance as part of the government's plans to protect consumers both online and offline.