Marketing Matters | Review of July 2024

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 July's ASA rulings.
• Other top ASA stories; and
• CMA news for the same period.

ASA rulings – key takeaways for your A&M departments

There were 12 ASA rulings in relation to misleading advertising.

Misleading advertising

A restaurant chain claimed on its website that "25% OFF FOOD" was available if customers joined their app and signed up as a member. However, it was later advertised to website users that this was "25% off mains on your next visit" so the offer was a one-time-only deal only, and limited to main courses, rather than a wide-ranging, long-term benefit of becoming a member. 

The chain responded that the voucher contained the full terms and conditions of the offer which the customer could view prior to using the voucher, but not before downloading the app or registering as a member.

Consequently, the ad of "25% OFF FOOD" was deemed to be misleading and emphasises that promotions must accurately convey exclusions and qualifications to avoid consumer confusion.

Food supplements

This month, there were ten ASA rulings in relation to misleading food and health supplements adverts. We have identified a sharp upwards trend of these types of rulings. This might be for several reasons, including the rise of social media and 'influencers' promoting various health and welfare supplements, and long waiting lists for physical and mental health support services causing consumers to seek quicker treatments online at a cheaper price.

In June's Marketing Matters, we looked into how any health-related advertising claims should be substantiated with supporting results-led data. Therefore it should come as no surprise that adverts claiming to cure, prevent, and treat ADHD and autism, menopause, anxiety, and other medical conditions were targeted by the ASA on the grounds that consumers are likely to interpret these as fact, when, in reality, there is no scientific evidence to suggest they are true.

One supplements retailer released a Facebook ad featuring the text “The secret weapon parents of ASD kids swear by" and “Autism focused, Packed with ingredients that help your child thrive emotionally, mentally and socially”. The ASA challenged the ad on the grounds it promoted food as a cure for human medical conditions.

Environmental claims

There were three rulings in relation to environmental claims this month.

One advert featured in a current affairs magazine and posted on the London Underground for the owners of London Luton Airport stated “If we miss our environmental limits, our expansion will be stopped in its tracks. If London Luton Airport breaks the environmental limits set out in its expansion proposal, it won’t mean an apology, it will mean further expansion is stopped. Our unique Green Controlled Growth framework will introduce limits for the airport’s noise, carbon, air quality and road traffic impacts. These would be legally binding, and independently monitored”.

However, the ASA ruled that the ad omitted material information about the environmental impact of London Luton Airport’s expansion mainly air traffic emissions which accounted for 83.7% of the 2019 LLA’s total GHG emissions of 1,341,235 tonnes CO2e (carbon dioxide equivalent). Consumers would expect environmental limits on carbon emissions to include air traffic emissions their exclusion was likely to affect people’s understanding of the ads’ overall message.

Elsewhere, a cruise company claimed to be "leaders in sustainable expeditions" and notwithstanding the fact steps had been taken to reduce the environmental impact of its cruises, those steps did not cover all aspects of their holiday packages and were not referred to in the ad so the claim was unsubstantiated. Meanwhile, a water company advertising its commitment to storm overflow improvements had to remove its advert as it implied that the company was acting more widely to tackle water pollution and environmental damage which was untrue because of the recent harmful sewage spills caused by their storm overflow infrastructure.

Other claims worth noting

A natural deodorant company released an advert showing a breast cancer survivor with visible scarring and bruising around her breasts endorsing their product because “As a breast cancer thriver I’m prioritising my health and I’ve decided to finally go [Company Name]." The ASA upheld that the ad implied a link between non-natural, competitor's deodorants and cancer which in turn promoted the company's natural alternative as a safer option. This breached various CAP Code rules including Comparisons with identifiable competitors, misleading advertising, and medical claims without substantive evidence.

Meanwhile, a water filter company sent round an email with the subject line: “UPDATE: It’s gotten worse” while the body of the email stated, “Hi all, 100 people have fallen ill in Devon now. We can't standby [sic] and watch this happen. […] We have made [Company Name] just £99 today. USE CODE: URGENT at checkout. Every home in the UK needs a water filter. UK tap water is broken”.

The business explained that the current cryptosporidium contamination in Brixham drinking water, and the 34 E.coli and Enterococci breaches in 2022 highlights the poor quality of UK drinking water. Moreover, they claimed that UK water testing is outdated and only tests for two types of per- and polyfluoroalkyl substances (PFAS), despite the existence of other manmade chemicals with reported health effects if consumed. The advertiser justified their email because they wanted to ensure clean water was accessible to consumers in need.

However, the ASA held that the ad's alarmist language was likely to cause concern amounting to fear, distress, and harm to consumers because the email implied that tap water was no longer safe and may cause disease, when in the fact, UK drinking water has a quality rating of 99.96% and the Brixham contamination issue is temporary and contained.

Takeaways

The key takeaways from the ASA rulings this month are:

• Be upfront and clear with your promotions – it is advisable to state the terms of qualifications of any offer as early as possible to avoid disgruntled consumers who have received less than they signed up for or cannot locate the promotions they have been promised.

• Your claims should be fact, not miracle – food supplements must only advertise authorised medical claims. The ASA is cracking down on products exploiting consumer's worry and claiming to treat neurological disorders, anxiety disorders, and menopausal transition.

• Don't exclude or exaggerate environmental claims – whilst it is encouraging that more businesses are considering the environmental impact of their services, this should not be at the expense of fact or honesty. Support your green claims with comprehensive evidence of your environmental credentials and avoid omitting essential information which hides the clearer picture from the consumer.
  

Top ASA stories last month

Dialling up price transparency

Following a consultation in December 2023, Ofcom has introduced new rules ensuring telecom providers clearly set-out any in-contract price rises before customers sign up to a contract. This information must be prominent and accessible (including during a sales call or other verbal sale such as an in-store sale).

These rules will take effect from 17 January 2025 and aim to reduce telecoms providers from including inflation-linked or percentage-based price rises that apply to the Core Subscription Price.

For further information, visit the ASA's website.

Artificial integrity: scrutinising accurate AI claims

As artificial intelligence becomes more readily available and a bigger part of our everyday lives, the ASA has released advice for marketers using AI terminology to promote their products.

The guidance starts by telling businesses not to claim AI capability when none exists nor exaggerate AI features. Whether a product has AI in it, or how AI might impact and improve its performance, should be clearly substantiated. Businesses should avoid overpromising AI technology beyond what is currently available on the market.

Businesses should also proceed with caution when comparing AI and non-AI products. Claims that AI products outperform over products should be supported with adequate evidence but if none is available, these types of claims should be avoided.

For further information, visit the ASA's website.

CMA activity in July

CMA weighs in on grocery pricing

Back in November 2023, the CMA opened an investigation into supermarket loyalty schemes over concerns that the bulk of promotions were exclusive to members and that signing up to such schemes, required a smartphone and data sharing. The UK’s largest supermarkets were met with scrutiny when food prices rose in 2021.

This analysis is ongoing, but they have announced they are "unlikely to find widespread evidence" that supermarkets are unfairly and artificially inflating non-loyalty pricing to make member prices more appealing.

Find out more about the CMA's review.

Fuelling concern: drivers feeling the pinch of high petrol prices

The CMA said that weakened competition in the fuel sector is disadvantaging drivers with supermarket fuel prices doubling since 2019. The official investigation started last year with the CMA setting up fuel finder schemes to help consumers identify cheaper fuel. However, drivers are still paying £1.6bn more than they should and a new fuel finder scheme which could save drivers up to £4.50 each time they refuel has been put forward.

Several major retailers now voluntarily contribute to price data sharing scheme, however, this scheme only covers 40% of fuel retail sites and cannot bring live data to drivers on the road through their satnavs and smartphones.

The CMA is calling on the government and Energy Secretary Ed Miliband to put a compulsory system in place through the Digital Information and Smart Data Bill.

Read the government's press release to find out more.