Marketing Matters: November 2023

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, with a few puns thrown in for good measure in the lead up to the festive season.

As usual, we will be looking at:

• The ASA's November rulings and their relevance for your A&M departments.
• The other headline ASA development of the month.
• What the CMA has been up to in the same period.

ASA rulings – key takeaways for your A&M departments

December is here – where did the time go!? The ASA certainly had a busy November, handing down no less than 45 (!) rulings, with only two not being upheld. Below, we've picked out some of the key rulings to help inform your A&M departments about what they should be looking out for over the festive period.

Misleading claims

In top place, yet again, on the ASA's naughty list were misleading claims. In November, the ASA found 21 advertisements to be misleading – the highest number in the history of Marketing Matters. Below, we have selected some of the ones we thought might be most useful for your A&M teams to bear in mind when planning future marketing campaigns.

One ruling concerned a retailer of water softeners advertising on its website that customers could "Save up to £1,100*" and "reduce [their] bills by up to 30%" by purchasing their water softener. When asked by the ASA to provide evidence, the company was unable to do so to the satisfaction of the ASA and, as such, the ad was found to be misleading.

Another ruling concerned a multinational consumer goods corporation and its TV ad for an incontinence pad. The ad showed two women practising yoga and discussing the "Always Discreet Ultimate Day" and its ability to protect and be discreet. The ad also stated that 95% of 146 women surveyed favoured it, and it went on to make a visual comparison with another incontinence pad by a 'leading brand'. The suspected 'leading brand' challenged the ad, saying that the comparison was misleading because the pad was not compared to the most appropriate pad in their arsenal. Additionally, because of the way on-screen text had been placed in the ad, it suggested that the 95% of women surveyed preferred the Always Discreet Ultimate Day pad over the 'leading brand's' pad, whereas this was never a question in that survey. The survey related to whether women agree that the Always product protects and is discreet, without comparing it to other products. The ASA agreed on both points and found that the ad breached the broadcasting code.

Our third ruling of interest relates to a theme park operator making 'rainy day guarantee' statements, suggesting that customers could return to the theme park in question for free where a ride was closed due to weather on the day of their visit. The ASA took issue with the fact that the terms and conditions surrounding the guarantee were not clear enough. They did not include important information about how long rain had to be ongoing or how long a ride had to be out of commission for the guarantee to work and, therefore, the ad was found to be misleading.

Unsubstantiated claims

Unsubstantiated claims in advertisement came in as the runner-up this month, with the ASA upholding 15 challenges against ads during November.

The ASA has its sights set on adverts for long-Covid treatments. Two of its rulings (here and here) concerned claims made in support of hyperbaric oxygen therapy (HBOT). The ASA was not convinced that the claims made about HBOT being a suitable treatment for long-Covid were correct and ultimately found the claims made to be unsubstantiated.

Irresponsible, harmful and offensive advertising

Once more, irresponsible advertising has made an appearance, up to 10 instances in November. Below are some of the things to look out for:

Thought Halloween was over and done with? Wrong. A film production company showing two video on demand (VOD) ads for the horror film "Evil Dead Rise" got in trouble because their content was simply too frightening. Despite getting clearance to show the content after 9pm (when children are less likely to be watching TV), the ASA found that "the ads contained images and a level of jeopardy that was not suitable for general audiences, even after 9 pm." A further reason for the decision was that the VOD ads were shown to viewers whilst watching non-horror content – a bit of an unexpected interruption to any Rom-Com!

An indoor gardening and artificial lighting retailer featured, in their app, an image of cannabis plants being grown and included text such as "Summer Sale" and "kits for indoor growing". When approached by the ASA, the company did not reply. The in-app ad was found to be socially irresponsible, because it appeared to condone the cultivation of cannabis, which is illegal in the UK.

Other types of claim worth noting

Some of the ASA's other rulings dealt with comparisons, as well as availability and environmental claims all of which are worth noting, for example...

An events business made availability claims on their website, advertising a witchcraft and wizardry tour through Stratford-Upon-Avon. Their site said that only 14 tickets remained, but this was incorrect. The company noted that there had been an issue with their inventory tracker, leading to the site in question showing that there were 14 tickets, rather than 44 left to buy for the event. Nevertheless, this was found to be false and misleading and therefore in breach of the CAP Code.

Environmental claims came up again with one car manufacturer telling consumers to "RETHINK HYBRID" and that their car could provide "up to 80% electric driving in the city." The claim was unclear and therefore in breach of the CAP Code. The ASA stated that "there were numerous possible interpretations of the claim, including that it reflected the proportion of an individual journey, regardless of distance, that the vehicle was able to cover without having recourse to using petrol or diesel."

Takeaways

The key takeaways from the ASA rulings this month are:

• Check your claims and check them twice: It's all about not being naughty, but rather being nice when it comes to not misleading your customers. You have to get into their shoes and consider what they will understand from the claims you are making.

• May your ads be merry and bright – and not extremely frightening: A&M departments should think about the imagery in their ads and how that might affect their audience.

• How lovely are your green claims?: They might be lovely, but are they clear and accurate? If not, expect to hear from the ASA in future.

Top ASA stories for November

A cup of seasonal cheer

CAP announced new rules on alcohol alternative product advertising, with these new rules coming into force next year in May. The ASA have done a piece on what the guidance accompanying the new rules will cover, including ABV limits (i.e. 'alcohol-free' products at or below 0.5% ABV), clarification of what 'alcohol alternatives' are, rules around cross-promotion and shared branding, as well as what advertisers should make sure to highlight when advertising alcohol alternatives in circumstances that would – in the event of actual alcohol – be seen as unsafe consumption habits.

Tchaikovsky anyone?

It won't just be nutcrackers and toy soldiers coming to life this Christmas – soon, AI will take on even more of a life of its own, when the ASA look to invest further in its ad-regulation capabilities. At the end of November, the ASA held a talk entitled "Greenspeaking with Confidence", focussing on some of the environmental ambitions it has for the future. During this talk, it announced the release of its new five-year strategy (AI-assisted collective ad regulation) which it stated has "ambitious targets to make sure all ads are responsible and people are protected from being misled, harmed or offended by them." The ASA's aim is to invest further in AI to support its regulatory function, as well as work on a more preventative and proactive (rather than reactive) approach to complaints casework. The ASA have been using AI in specific context already, which we have looked at in previous Marketing Matters editions, including gambling ads.

CMA activity last month

Driving home for Christmas? Watch out at the pump.

The CMA expressed concerns over fuel prices in November, stating that it is possible that competition regulations are not working effectively. This comes after an RAC spokesman highlighted that drivers are still "being taken advantage of at the pumps" and lamenting the CMA's findings that major fuel retailers are still benefitting from bigger margins than they did in the past. Despite the costs for fuel falling, this cost decrease has not been translated to the cost at the pump, with consumers still paying a higher retail price than before this year's unprecedented increases.

If you haven't got a penny, a ha'penny will do – time to rethink baby formula pricing?

Infant formula came up a little while ago in one of the ASA's rulings against Boots. Now, it's in the CMA's sights. The regulator has announced that it will be investigating the baby formula market after finding that "manufacturers raised prices by 25% in two years and managed to increase profit margins during the cost of living crisis." Danone and Nestlé account for 85% of sales of baby formula, leading to the CMA having concerns that there is too limited a choice in the current market. Whether there has been a case of 'greedflation' here will become clearer, once the regulator's investigation is complete.