Marketing Matters: Review of May 2025

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 May's ASA rulings.
• Other top ASA stories.
• CMA news for the same period.

ASA rulings – key takeaways for your A&M departments

In May, the ASA handed down 17 rulings. We have highlighted some of the key rulings we think you and your A&M departments should be aware of.

As noted in last month's edition, on 7 April 2025, the BCAP and CAP Codes were updated in light of the introduction of the Digital Markets, Competition and Consumers Act 2024 (“DMCCA") to reflect changes introduced by the new legislation. While the ASA will continue to consider complaints made prior to 7 April 2025, the old versions of the Codes will be applied to such complaints, with the new Codes being applied to complaints made on or after that date. May's rulings are therefore a mixed bag using both the old and new rules.

Know the pricing history and unit figures for your products

The ASA continue to receive complaints regarding misleading and unsubstantiated savings claims. An interiors retailer, selling their product on a department store's website, stated “Kitchen 2-Tier Metal Dish Drainer Rack […] £18.99 … Save 83%”. The webpage also highlighted a "£113.33" price struck through next to the current £18.99 price.

The ad was challenged for making a misleading savings claim, as the product had not been previously sold for £113.33. The retailer confirmed that the original price of the product was based on market pricing strategies and aligned with the prices of similar products on the market. The heavily discounted price was said to be the result of a clearance strategy due to high inventory levels. The company was unable to provide recent sales records showing units sold at the original price because of an IT issue, but maintained the product had been sold at £133.33 for an extended period before it was discounted.

The ASA considered that consumers would understand the 83% saving to be a genuine saving of 83% against the usual selling price of the listed product and concluded that for the savings claim to be substantiated, the provision of a products pricing history, including the number of units sold at each price, was required to substantiate a claim. The company had failed to provide the necessary evidence to determine the usual selling price.

'Unlimited claims'

A telecommunications company's website featured a webpage headed "PAY MONTHLY SIM ONLY DEALS", which advertised nine SIM-only plans of varying lengths. All of these plans were titled "Unlimited". In a section at the bottom of the same webpage, a heading "Frequently asked questions" included an expandable subheading called "The legal bit". Once expanded the text stated that the nine 'unlimited plans' were for “personal, non-commercial use only" and that the telecommunications company considered usage above 600GB/month to be non-personal use, and they would have the right to apply traffic management controls to deprioritise mobile traffic during busy periods or to move plans to a business plan if this usage was exceeded.

The ad was challenged on two grounds. Firstly, that describing the data plans as 'unlimited' was misleading because a Fair Use Policy of 600GB per month applied and, secondly, for not making the Fair Use Policy sufficiently clear.

In its response to the first complaint, the company referred to the CAP Advertising Guidance (the Guidance) on making “unlimited” claims in advertising for telecommunications services. As per the guidance, they noted that legitimate users who exceeded the Fair Use Policy of 600 GB per month would not incur an additional charge, nor would they have their service suspended. The company considered the limitation imposed, being that their traffic was deprioritised at busy cell sites from the time they exceeded the threshold until the end of that month's billing cycle, was moderate. Replying on the most recent Ofcom report, the company highlighted that the average fixed line broadband data consumption for a UK household was around 535 GB per month, and average mobile data use was 9.9 GB. Additionally, the telecommunications provider explained that the measure applied only to the 4% of cell sites across the UK that were congested, and that even those sites were not busy all the time.

In support of the above argument, the company provided excerpts from the T&Cs for unlimited plans from 13 key mobile broadband providers. They pointed out that all except one applied a Fair Use Policy to their unlimited plans, and that even the one provider who did not would need to manage traffic at busy times.

In response to the second challenge, the company noted that the policy was displayed with sufficient prominence and the T&Cs appearing in a drop-down box was in line with industry practice.

The ASA did not uphold the first challenge. In its ruling, the ASA considered that unlimited claims were likely to be acceptable only when:

1. A legitimate user incurred no additional charge or suspension of service as a consequence of exceeding any usage threshold associated with an FUP traffic management policy; and
2. When a provider imposed limitations that affected the speed or usage of the service were moderate.

The telecommunications provider did not charge users for exceeding the data allowance and users would not have their service suspended. Additionally, the ASA noted that the Ofcom report suggested that a legitimate user was very unlikely to exceed the 600 GB limit. For those reasons, the ASA concluded that advertising the data plans as 'unlimited' was not misleading.

The second challenge was, however, upheld. The main body of the ad did not state that a Fair Use Policy applied, and did not feature any signposting within the plan details to indicate that qualifications might apply. The ASA noted that consumers would not necessarily be aware that a provider might apply traffic management to the advertised data plans. Further, the terms of the Fair Use Policy were detailed at the bottom of the webpage within a section entitled “Frequently asked questions”. That section was not visible when viewing the SIM-only plans. Consumers were required to navigate further down the webpage. Consumers could easily overlook the existence of the policy because of its placement in an expandable section situated beneath the main body of the ad and, therefore, the ad did not clearly present the qualification to the “unlimited” claim. The ASA concluded that it was misleading.

Takeaways

The key takeaways from the ASA rulings this month are:

• Know your product figures: It is advisable to keep a record of the pricing history of your products, including the number of units sold at each price. This information may need to be relied upon to substantiate a savings claim.
• Take care when claiming something is 'unlimited': Take care to ensure any limitations on 'unlimited' claims are moderate and can be evidenced. Additionally, ensure qualifications are prominent and clearly sign-posted.

Top ASA stories last month

The ASA's quick guide to changes to misleading advertising rules

As noted in our previous edition of Marketing Matters, in April, CAP and BCAP (the bodies that write the advertising Codes enforced by the ASA) introduced amendments to their rules to reflect the new UK consumer law under the Unfair Commercial Practices (UCP) provisions in the DMCCA. The UCP provisions update and replace the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs). However, the key principles of misleading advertising underpinning the Codes remain largely the same.

The key points to be aware of are:

• The new rules related to price dripping
• The ban on fake reviews; and
• The broader 'vulnerable consumers' definition.

The full ASA article on the amendments can be found here.

Recent CMA activity

Interesting development in the CMA's investigation into an Amazon and fake reviews

The CMA opened an investigation into one of the largest online retailers in the world, Amazon, for potential breaches of consumer law regarding fake reviews. The CMA believes Amazon hasn't taken sufficient action to identify, remove, and sanction fake reviews, including those that inflate product ratings or are part of suspicious behaviour patterns.

To address the CMA's concerns, Amazon has given undertakings committing itself to:

1. Rigorous processes to tackle fake reviews and catalogue abuse: Amazon has committed to have in place robust processes to quickly detect and remove fake reviews and catalogue abuse – meaning it can better identify those businesses and reviewers that are breaking the law, and take the necessary action.
2. Sanctions for businesses and reviewers: Businesses selling on Amazon face being sanctioned for catalogue abuse or using fake reviews to falsely boost their star ratings – and can be banned from selling on the site altogether. Users who post fake reviews, positive or negative, risk being banned from writing further reviews, and all their previous reviews being deleted.
3. Easier reporting functions: The undertakings commit Amazon to ensure they have clear and robust mechanisms that allow consumers – and businesses – to report fake reviews and catalogue abuse quickly and easily.

The full press release on the matter can be found here. For the full guidance on fake reviews, please review the CMA's latest guidance.