Marketing Matters | Review of December 2024

Welcome to the final 2024 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 December's ASA rulings.
• Other top ASA stories.
• CMA news for the same period.

ASA rulings – key takeaways for your A&M departments

In December, the ASA handed down 38 rulings, we have highlighted some of the key rulings we think you and your A&M departments should be aware of.

Misleading Black Friday saving claims

A company which advertised its compression sleeve via a Facebook ad claimed customers would receive a £300 saving during their; Black Friday sale event. The ad included "£599", alongside further text whichstated "£299 SAVE £300". The caption of the Facebook advertisement read, "ONLY £299 THIS BLACK FRIDAY. SAVE £300."

The ASA challenged the saving claims, specifically whether the £599 struck-out price represented a genuine reduction against the price at which the product was usually sold. Customers would understand, as presented, that they would achieve a genuine £300 saving against the typical price. The ASA noted, the Black Friday reference reinforced the customer's impression of this saving and that it would only be available for a short period of time.

The higher price referenced in the ad could not be determined as the usual price of the product, as the company in question failed to provide any pricing history. Due to the lack of supporting evidence, the ASA reviewed past reference and promotional prices of the product over a six-month period. In May 2024, the product was advertised with a reference price of £799 and a promotional price of £399. Mid-September 2024, the same compression sleeve was advertised as having a 50% discount at £299.99. These were in addition to the October Black Friday promotion. The ASA noted that the product, though fluctuating in price by £200, appeared to be discounted throughout the entire 6-month period.

It was upheld that the company had failed to demonstrate that £599 was a genuine reference price, and that the savings claims in the ad were misleading.

Health claims

A fitness centre advertisement claimed "just one 20-minute session per week [was] equivalent to 3 one-hour sessions at a regular gym". When this was queried by the ASA, the company's responses stated that their claim was supported by various studies about the impact of electrical myostimulation (EMS) training, which they understated rather than exaggerated. They claimed the whole-body EMS delivered 85 muscle contractions per second, whereas during conventional workouts each muscle takes 1 to 1.5 seconds to contract. Additionally, the fitness company believed that EMS training worked muscles 40% harder.

The ASA upheld that customers would understand the claim to mean that one 20-minute session at the fitness centre in question would provide the same physical results, such as weight loss, as three one-hour sessions at a regular gym. Essentially, customers would understand this to be a time saving alternative to a traditional gym. The ASA recognised the level of evidence and studies supplied by the company however, considered that a substantive body of relevant evidence, consisting of clinical trials conducted on humans, published and peer-reviewed, was needed to substantiate the claims.

The six unpublished diploma theses on whole-body EMS from a university were not considered adequate substantiation for the company's claim, as they were summaries and not full studies. None of the theses has been peer-reviewed. The ASA confirmed that the health claims has not been substantiated and concluded that the advertisement was misleading.

Takeaways

The key takeaways from the ASA rulings this month are:

• Saving claims must be genuine: Any saving claims must use a genuine reference price, which must be the usual price of the product prior to the sale.
• Health claims require significant substantiating evidence: The ASA require significant evidence to support health claims. Any health claim should be supported by robust clinical trial evidence which has been published and peer-reviewed.

CMA activity in December

The Digital Markets, Competition and Consumer Act 2024 (DMCCA 2024)

The Committee of Advertising Practice (CAP) and the Broadcast Committee of advertising Practice (BCAP) have published a public consultation on proposed amendments to their Codes to reflect changes to UK consumer law in the form of the Digital Markets, Competition and Consumers Act 2024 (DMCCA), which received Royal Assent in May 2024.

Please see our full article for further detail on the DMCCA 2024 and the changes coming into effect in April 2025.

We will continue to provide a monthly DMCCA 2024 update in our future Marketing Matters articles. Look out for these updates as the consultation period ends, the CMA publishes its response, and as the changes come into effect.

Top ASA stories last month

Consultation update: Restrictions on advertisements for "less healthy" food and drink products

From October 2025, the Communications Act 2003 will ban ads for "identifiable" less healthy food and drink products (LHF product) from being:

1. Included in Ofcom regulated TV series between 05:30-21:00.
2. Included in Ofcom-regulated on-demand programme services between 5:30-21:00.
3. Placed in paid for space in online media at any time.

The Department of Health and Social Care has published guidance to support stakeholders understand what products may be in scope of the restrictions.

Following the consultation close date on 07 February 2024, the CAP and the ASA have confirmed that they are likely to revise the guidance to clarify the following:

• Even if an advertisement does not explicitly refer to or feature an LHF product, it may still be restricted under law, where people in the UK could reasonably be expected to be able to identify the ad as being for an LHF product(s).
• The assessment will be a question of fact and judgement in each case.

Retailers, traders and advertisers are being encouraged to carefully consider the specific content and media placement of ads, taking into account the wider content and context of each individual advertisement.

Further information can be found on the ASA website.