Misleading advertising

Editorial and advertising

How is editorial content differentiated from advertising?

The ASAI Code specifically states that advertising promotions need to be designed in such a way that they can be clearly differentiated from normal, non-advertising editorial content. Such ‘advertorials’ must also comply with all of the other provisions in the ASAI Code.

The Consumer Protection Act 2007 can also have an affect on advertising in the form of editorial content. Section 44(1)(b) of the Act states that a marketing communication can be misleading if it could cause the average consumer to ‘make a transactional decision that the average consumer would not otherwise make’. An advertisement disguised as editorial content could easily fall within that description if the consumer does not understand that it is ‘paid for’ content and enters a transaction accordingly. Section 55(q) of the Act prohibits editorial content from being used without disclosing that it is a paid promotion.

Advertising that requires substantiation

How does your law distinguish between ‘puffery’ and advertising claims that require support?

There is nothing in law specifically distinguishing between ‘puffery’ and advertising claims that require support. The ASAI Code states that substantiation should be available for all claims, although it does state that ‘obvious untruths or deliberate hyperbole’ are permissible provided they do not alter any material facts. There are advertisements run without complaint in Ireland that contain obvious puffery, but, in theory, any claim made in an advertisement should be capable of substantiation.

Rules on misleading advertising

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

Under section 42 of the Consumer Protection Act 2007 there is a general prohibition on misleading advertising. Sections 43 to 46 of the Act set out in detail the circumstances in which a marketing communication can be construed as misleading. Material information (seen as anything that may influence the decision of the consumer) must be disclosed. Footnotes and disclaimers are permissible provided they are clearly visible. The ASAI and BAI Codes also contain specific rules on misleading advertising.

Specific industries will also have rules on the type of information that must be disclosed or the detail of any footnotes or disclaimers (eg, the ComReg provides certain guidelines for the size of small print on advertisements using premium rate numbers).

Substantiating advertising claims

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

This depends on the nature of the claim. As set out in question 16, any claim made in advertising should, in theory, be capable of substantiation. The ASAI Code states that ‘advertisers should satisfy themselves that they will be able to provide documentary evidence to substantiate all claims, whether direct or indirect, expressed or implied, that are capable of objective assessment’.

The standard of proof is generally independent, documentary evidence.

Additionally, section 55 of the Consumer Protection Act 2007 provides a list of some 25 prohibited commercial practices that traders (and, by extension, advertisers) simply cannot engage in. As noted in question 17, there is also a general prohibition on misleading advertising. It is likely that a claim made that is not capable of substantiation will breach the provisions in the Act with consequences of possible fines, criminal convictions and, in extreme cases, imprisonment.

Survey results

Are there specific requirements for advertising claims based on the results of surveys?

There are no specific requirements other than general prohibitions (both by law and in the self-regulatory codes) on misleading advertising.

Comparisons with competitors

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Comparative advertising is permissible and is governed by law by the European Communities (Misleading and Comparative Marketing Communications) Regulations 2007. The legislation permits comparative advertising provided it is not misleading or confusing. The advertisement must be fair and compare ‘like for like’ as regards products and services. It is permissible to identify a competitor by name (or by its trademark) provided the advertisement or marketing communication does not simply take advantage of that trademark or denigrate or discredit the competitor. The Consumer Protection Act 2007 also includes some protection in that it places a prohibition on advertisements that simply seek to cause confusion between the product being advertised and a competitor product.

Comparisons are also permissible under the ASAI Code, subject to compliance with its requirements.

Test and study results

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

Again, this is simply a case of substantiation. There is no specific requirement for a higher degree of proof, but the claim does need to be capable of independent verification.

Demonstrating performance

Are there special rules for advertising depicting or demonstrating product performance?

The BAI Code does contain specific rules on teleshopping and interactive advertising that could be applied to advertisements demonstrating product performance. Essentially, this Code states that such segments must operate on a policy of separation whereby they are clearly distinguished from programme content.

All of the provisions in the Consumer Protection Act 2007 relating to misleading advertising and prohibited commercial practices can be applied to advertisements demonstrating product performance without the need for any specific reference to such forms of advertising in the Act.

Third-party endorsements

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?

The Consumer Protection Act 2007 prohibits claims of endorsements by traders and advertisers in circumstances where they are not accurate. In particular, claims of adherence to certain codes of practice or quality marks can be advertised, but only provided those claims are accurate. The making of such claims in circumstances where they cannot be substantiated would be a prohibited commercial practice and a breach of the legislation, which could lead to criminal prosecution, fines and even imprisonment.

The ASAI Code also has a specific section regulating the use of testimonials and endorsements. Advertisers need to have documentary proof, the said proof has to be signed and dated, and available on request, and advertisers must only use individuals with their express permission. Endorsements must also be current. If the person making the endorsement is being paid for that endorsement, that message should be clear.

Guarantees

Are there special rules for advertising guarantees?

Section 43(1)(3) of the Consumer Protection Act 2007 warns that information regarding warranties or aftersales service will be misleading if it is advertised and induces a consumer to make a transactional decision that he or she would not otherwise make.

The ASAI Code states that if an advertisement refers to a guarantee, then that guarantee must be available for consumers to inspect before they commit to the purchase, and any conditions in the guarantee or warranty (such as time limitations) must be clearly advertised. Additionally, the use of such guarantees cannot be used to limit the statutory rights of the consumer under the Consumer Protection Act 2007 or the Sale of Goods and Supply of Services Act 1980.

Environmental impact

Are there special rules for claims about a product’s impact on the environment?

The ASAI Code contains a specific ‘environmental section’ that details the rules for claims concerning a product and the environment. Essentially, unqualified claims can only be used if there is a high level of documentary evidence in support of those claims. The basis of any claim must be explained and the claim qualified if necessary. Such claims are frequently contested as intra-industry complaints. In 2009, Bord Gáis (a natural gas company) challenged a rival company, Airtricity, through the ASAI complaints process on the content of its advertising relating to the environment. The complaint was upheld and Airtricity agreed to change its advertising content.

Free and special price claims

Are there special rules for describing something as free or a free trial or for special price or savings claims?

Yes, the Consumer Protection Act 2007 again refers to such claims in its list of prohibited commercial practices. Section 43 of the Act states that providing information on previous prices (which may give an impression of higher reductions to the current price) can be misleading and a breach of the Act. The Act further states that any court or body deciding on such price claims can look at whether the product or service was actually offered at that higher price in good faith and for a reasonable period of time. Section 51 of the Act prohibits the use of the word ‘free’ unless the consumer must only pay the cost of responding to the promotion and reasonable delivery charges. This would also apply to ‘free trial’ or ‘special price’ claims.

The ASAI Code also contains similar provisions regulating the use of ‘free’ claims. ComReg have regulations concerning the use of premium rate numbers in collecting such ‘free’ gifts.

New and improved

Are there special rules for claiming a product is new or improved?

Again, this would be covered under the misleading commercial practices provisions of the Consumer Protection Act 2007. There are no specific provisions regarding such claims.

Similarly, the ASAI Code and the BAI Code do not contain specific provisions but such claims are covered under their more general provisions that claims must be legal, honest, decent and truthful.

Claims of origin

Are there special rules for claiming where a product is made (such as country of origin)?

Aside from the general provisions of the Consumer Protection Act, 2007 regarding misleading commercial practices and the provisions of the ASAI Code there are also specific regulations relating to county of original claims on food products. These are generally based on EU directives then signed into Irish law.

The European Union (Origin Labelling of Meat) Regulations 2015 cover the rules regarding country of origin for meat products. ‘Origin: (name of member state or third country)’ can be used only on the meat of pigs, sheep, goats and poultry if the food business operator proves to the satisfaction of the competent authority that the meat referred to has been obtained from animals born, reared and slaughtered in one single member state or third country.

If the meat does not originate in one single EU member state or third country, then the indications required are:

  • ‘reared in: (name of the member state or third country)’;
  • ‘slaughtered in: (name of the member state or third country)’; and
  • the batch code identifying the meat supplied to the consumer or mass caterer.

EU Regulation 1169/2011 places an obligation on food business operators to indicate the country of origin or the place of provenance of a food whenever its absence is likely to mislead consumers as to the true country of origin or place of provenance of that product.