Marketing Matters | Review of March 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:

• Some of the key takeaways for A&M departments following the ASA's rulings in March
• Other ASA news
• What the CMA has been up to in the same period

ASA rulings – key takeaways for your A&M departments

In March, the ASA handed down 24 rulings. Three of these rulings were not upheld, whereas two were only partially upheld. Below, we take a look at the types of claims that made it to the top of the list:

Misleading claims

March saw the ASA hand down 10 misleading advertising rulings. This is twice as many claims compared to February. Of those claims…

• "Loot boxes" have made another appearance in the game regulation space, with the ASA handing down a ruling against a large video game company after two of its paid-for Facebook ads promoting the game Golf Clash were found to be misleading. For those who are not familiar with the concept, "loot boxes" are essentially random-item purchasing, which means that a player will purchase a 'chest' or similar and receive random items, based on chance. The ASA found both ads to be misleading because they lacked a disclosure that loot boxes were included in the game and one of the ads made no reference to the fact that there were in-game purchases at all. This was material information consumers needed to know.

• A discount supermarket was found to be in breach of the CAP Code for misleading consumers about whether or not their Christmas dinner was the cheapest around, as well as for making improper price comparisons with a competitor. The advert came in the form of a newspaper article which implied that Which? had awarded the company 'the cheapest Christmas dinner' award, when in fact it had not. This was found to be misleading. The ad also included wording such as "why go anywhere else?" which aimed at discouraging consumers to shop around and included clear price comparisons between competitor supermarkets. The ASA - and Which? for that matter – were not impressed.

Claims lacking substantiation

Yes, you read that correctly. In March, it was not claims that were socially irresponsible that came in as the runner-up for most ruled-on claims types (surprise!). On the contrary, this month, unsubstantiated advertising stole the silver medal with five rulings being handed down in their regard. Below are a few examples:

• A Facebook post and a webpage for an artificial grass supplier contained environmental claims in relation to the recyclability and general environmental friendliness of their products. The statements suggested that the product was fully recyclable, yet the ASA were not convinced that sufficient evidence had been supplied in support of this. As we have touched on in previous editions, the CAP Code requires that any 'absolute' environmental claims – such as calling your product "Eco", as was the case here – to have a high level of substantiation. Unfortunately, that was not the case here, meaning that the claims were in breach of the CAP Code.

• A leaflet for a home broadband provider made various claims about the broadband being offered, including that it was "Full Fibre Speed Broadband", something that the complainant in the case disputed, given that the advertiser did not offer full fibre broadband with corresponding download speeds. The ASA held that the ad gave the overall impression that the product being advertised was full fibre broadband, rather than wireless broadband. Despite the company providing a small sample of 49 customers to seek to prove the speeds they advertised were legitimate, the ASA was not convinced that the data provided was relevant for substantiating the claim.

Other types of claim

Although irresponsible ads did not make the 'top three', it doesn't mean they didn't crop up in March. Below are a couple of examples:

• A fashion retailer's ad for a short sleeve sweater was found to be socially irresponsible, because it featured a model who appeared to be 'unhealthily thin'. In the ruling, the ASA explained that "the model’s upper body and hips appeared to be very narrow and there were gaps between her arms and body, accentuating her slender frame. Both of the model’s arms, which were visible from above the elbow, were very thin. Her upper arms appeared noticeably thinner above her elbow joints which protruded." The retailer in question failed to respond to the ASA's enquiries and were told to remove the ad in its current form. Given the nature of the ad, the ASA also referred it to the CAP Compliance team for review.

• A TikToker's post which included a video of her at a bar, quickly swilling down four cocktails in order to "get lit" was considered to be irresponsible, as it encouraged excessive consumption of alcohol and featured alcohol being served irresponsibly. But aside from that, it was also held that the ad was not obviously identifiable as a marketing communication. Despite the drinks brand arguing that no payment had been made to the TikToker, the ASA considered the fact that she received products for free constituted payment of some sort. Further, the company had editorial control over the videos the TikToker was posting and therefore there was a contractual relationship in place. The ad was therefore in breach.

Takeaways

The key takeaways from the ASA rulings this month are:

• The price is right – or is it? – make sure you have enough evidence to back yourself up if you are advertising price discounts, including an accurate 'reference price'.

• Greener on the other side – although there was a marked decrease in environmental claims being made (or, at least, caught) this month, it is still clear that marketers need to take care with making too broad, unqualified statements when it comes to their products' eco-friendliness.

Top ASA stories last month

"What I told you is true… from a certain point of view"

Misleading claims have topped the ASA rulings charts for many months (the ASA estimates that about 70% of the complaints they receive on a yearly basis relate to misleading ads), so it is only natural that the authority has decided to put together a piece on how to avoid misleading consumers.

The main point to note when looking at the advertising codes is that “marketing communications must not materially mislead or be likely to do so” and that the ASA will take into account the overall impression created by an ad and will consider the likely effect on consumers. The marketer’s intentions are irrelevant for this consideration.

When considering claims, the ASA will apply a two-part test: (i) is a claim likely to deceive a consumer and (ii) will this cause consumers to enter into transactions they may not have otherwise?

So, what can you do? Well, make sure the claims you make are clear and accurate, not exaggerated, and that you hold evidence to back them up if asked to. "Puffery" and opinion are a no-no.

CMA activity in March

Fashion retailers: you've been served… an open letter

On 27 March, the CMA issued an open letter to fashion retailers after having received undertakings from three companies in relation to the making of green claims in their advertising (for more on this, see this month's Retail Reduced round-up by our colleagues here).

The letter calls on businesses in the sector to consider their obligations vis-à-vis green claims, after the undertakings the CMA received from ASOS, Boohoo and Asda promised to change their practices to address the CMA’s concerns about certain environmental claims and commercial practices. The letter explains that:

"One of the CMA’s key aims in publishing the Green Claims Code (‘the Code’) was to give businesses the confidence to make accurate and truthful environmental claims that reflect investment in the environmental performance of their products and services."

Within that Code, there are six principles centred around truthfulness and accuracy, clarity and lack of ambiguity, including all relevant information, make fair and meaningful comparisons, looking at the full lifecycle of products and services, as well as being able to substantiate the claims made. The CMA has explained that it expects advertisers to know these and apply them to their business practices.

But that is not all. No, retailers should also make sure they familiarise themselves with the undertakings made by the above-mentioned retailers, which relate to fabrics, green ranges, the use of imagery, product filters, environmental targets and accreditation schemes. And there will be more guidance to follow in future.

The letter ends off noting that if retailers do not comply with their duties under consumer protection law, enforcement is likely. Considering the 'shadow' of the Digital Markets, Competition and Consumers Bill in Parliament – and the powers it will introduce for the CMA in relation to tough financial penalties for breaches of consumer law – businesses would do well to think carefully about how their A&M departments are handling environmental claims.

If they are not handled properly, now is the time to act. Otherwise, it might just sting a little later down the line.