Misleading advertising practices in United Kingdom

Misleading advertising

How is editorial content differentiated from advertising?

Editorial content is outside the ASA’s remit and the advertising codes state that any advertising must be identifiable as such. In particular, advertisers should ensure that advertisements are designed and presented in such a way that they can easily be distinguished from editorial content. In particular, advertisers should also make clear that advertorials are advertising content.

The ASA and CAP continue to monitor use of advertorials and ‘native advertising’. There has also been recent CAP and ASA guidance on making advertisements clear on social media, in particular where social media influencers are used. In such circumstances, the ASA considers whether the content is controlled by the advertiser (rather than the publisher) and whether it is disseminated in exchange for payment or another reciprocal arrangement.

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

Puffery (defined by the advertising codes as ‘obvious exaggerations’) and claims that the average consumer is unlikely to take literally are allowed and require no substantiation provided that they are not materially misleading.

The ASA has previously ruled that ‘younger looking skin’ (to advertise collagen) would not be perceived as puffery as this is an objective statement. However, ‘the most comfortable beds in the world’ was considered to be puffery because consumers’ experiences of comfort of mattress types would vary and be based on their individual needs.

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

The general rules under the advertising codes are that advertising must not:

• materially mislead or be likely to do so;
• mislead by omitting material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner; or
• imply that expressions of opinion are objective claims.

‘Material information’ is defined as information that the consumer needs to make informed decisions in relation to a product (eg, the main characteristics of the product, the advertiser’s identity and address, the product price including all taxes and delivery charges, any unusual payment, delivery or performance arrangements and that consumers have a right to withdraw from or cancel the purchase).

In addition, under the CPUTs, a number of misleading commercial practices are prohibited. It is a criminal offence to make false and misleading statements or omissions including about the existence of a product, the main characteristics of a product and the price. Omissions are considered to be ‘misleading’ if taking into account the circumstances of the commercial practice and the medium used to communicate it, it omits, hides, disguises or delays material information so as to cause the average consumer to take a transactional decision that they would not otherwise have made.

Disclaimers and footnotes are permitted in order to further explain or qualify any headline advertising claims. However, advertisers should be careful to ensure that they only clarify and do not contradict those claims. In addition, CAP has introduced new standards for on-screen text on television which requires that:

• qualifying information is presented clearly;
• text in conventional television advertising is kept to a minimum;
• text is in lower case with upper case used only where normal for punctuation and in words or abbreviations commonly capitalised;
• text is held for a duration calculated at the rate of five words per second (ie, 0.2 seconds per word). Where the text concerned contains 10 words or more, an additional ‘recognition period’ of three seconds must be added, or two seconds if the text contains nine words or less; and
• all graphics and text be framed within the 16:9 caption safe area.

The guidance sets out additional factors that are important for achieving legible and comprehensible text.

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?

Advertisers must be able to substantiate any objective claims and hold documentary evidence before publication to prove claims that consumers are likely to regard as objective. Without such evidence, the ASA will consider such advertising to be misleading. Advertisers may provide genuine customer testimonials in their advertising but these alone are unlikely to be considered sufficient to substantiate objective claims.

In relation to medical and scientific claims about health and beauty products (including slimming products, food supplements and cosmetics), evidence used to substantiate should generally consist of trials conducted on human subjects.

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

CAP has provided the following guidance:

• universal claims (ie, people prefer product A) will be difficult to make unless there is robust data heavily in favour of a positive result (the ASA has previously ruled that an 83 per cent positive response was not sufficient to support this type of claim);
• it is not a requirement to state sample sizes in advertising. However, where the sample size is unlikely to be big enough to substantiate a headline claim, then it is advisable to include qualifying text that gives the sample size;
• where consumers are given an incentive to participate in a survey (eg, sample products and a chance to win a large prize), this may undermine the impartiality of the participants; and
• when making claims based on extrapolated conclusions (eg, 80 per cent of British consumers prefer Flora, based on 500 British consumers), the advertising should make it clear that this is the basis of the claim to ensure that the advertising does not mislead by exaggeration.

In addition, the ASA has previously provided some guidance on what survey information should be provided when making a comparative claim. The ASA has advised that advertisers should provide information on the following:

• the methodology of the survey;
• the group of respondents represented in the survey sample;
• which competitors had been included in the comparison; and
• any factors that the respondents were required to consider when answering the question on which the claim was based.

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

Comparative advertising is regulated by the BPRs. Advertisers are permitted to identify a competitor by name, product or a trademark (implicitly or explicitly) provided that the comparative advertising:

• is not misleading;
• compares products meeting the same needs or intended for the same purpose;
• objectively compares one or more material, or relevant, verifiable and representative features of those products (including price);
• does not create confusion between the advertiser and their competitor (or their trademarks or products);
• does not discredit or denigrate the competitor’s trademark, name, product or activities;
• does not take unfair advantage of the competitor’s trademark, name or product; and
• does not present products as imitations or replicas of products bearing a protected trademark or name.

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

There is no requirement to provide a higher or special degree or type of proof in superiority claims. However, advertisers must follow the general rules to ensure any such claims are objectively accurate and can be substantiated.

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

Advertising must not exaggerate the capability or performance of a product or service, for example, in visual representations (eg, depicting a surface cleaner easily removing difficult dirt) or in before and after photos. Advertisers are required to hold signed and dated proof that the photos are genuine and have not been manipulated. The photos should not exaggerate the efficacy of the product and advertisers need to ensure that they have relevant evidence to substantiate the impression created by the images.

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

Under the advertising codes (Rules 3.45 to 3.48), third-party endorsements and testimonials cannot generally be used in advertising unless permission is obtained from the relevant third party. The following additional rules apply:

• advertisers must hold documentary evidence that a testimonial or endorsement used in advertising is genuine;
• advertisers must hold contact details for the person or organisation that gives the endorsement or testimonial;
• testimonials must relate to the advertised product (rather than, for example, the advertiser generally); and
• claims that are likely to be interpreted as factual and appear in a testimonial must not mislead.

Further, advertising must not display a trust mark, quality mark or equivalent without the necessary authorisation, nor claim that the advertiser or the product has been approved, endorsed or authorised by any public or other body if it has not.

Are there special rules for advertising guarantees?

The advertising codes set out specific rules on guarantees that are defined to include warranties, after-sales service agreements, care packages and similar products. Advertisers should ensure that the word ‘guarantee’ is not used to cause confusion about consumer rights and, for example, it should be made clear if a guarantee is in addition to the statutory consumer rights protection. Advertisers should also ensure that full terms of the guarantee are provided to consumers before they are committed to taking it up and clearly state any significant limitations. If the guarantee is a money-back guarantee, advertisers should refund consumers who make a valid claim promptly.

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

The advertising codes do have specific rules relating to environmental claims (section 11 of the CAP Code and section 9 of the BCAP Code).

Environmental claims must be substantiated and based on the full life cycle of the advertised product. ‘Greener’ or ‘friendlier’ can be used if the advertised product provides a total environmental benefit over that of the advertiser’s previous product or competitor products and the basis of the comparison is clear. Advertisers should also consult the Green Claims Code published by the UK Department for Environment, Food and Rural Affairs.

The advertising of certain electrical appliances must comply with the energy efficiency labelling requirements of EU Directive 2010/30/EU on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products and the Energy Information Regulations 2011 on labelling and standard product information of the consumption of energy.

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

Advertising must not describe something as ‘free’ if the consumer has to pay anything other than the unavoidable cost of responding and collecting or paying for the delivery of the item. As such, an item cannot be described as free if:

• the consumer has to pay additional fees, such as for packing, packaging, handling or administration charges;
• the cost of what the consumer has to pay to take advantage of the offer (eg, if the consumer has to buy product A to get product B for free), has been increased to make up for the cost of the free item. In conditional-purchase offers particularly, the advertiser must ensure that the ‘free’ item is genuinely separate from and additional to the item being paid for;
• the quality of the product that the consumer must buy to take advantage of the free offer has been reduced; or
• the item constitutes an element of a package unless consumers are likely to regard it as an additional benefit (eg, because it has recently been added to a package without increasing the price).

Advertisers must make clear to consumers the extent of commitment they must make to take advantage of the free offer. Advertisers should also be careful to ensure that there is sufficient availability of the free items. It is advisable to make a reasonable estimate of demand beforehand. With regards to describing something as a ‘free trial’, marketers must not use the term to describe ‘satisfaction or your money back’ offers or offers for which a non-refundable purchase is required.

In relation to special price and savings claims, the advertising codes state that ‘up to’ and ‘from’ pricing claims must not exaggerate the availability or amount of benefits likely to be obtained. When using ‘up to’, at least 10 per cent of the products should be available at the maximum saving. In addition, when making pricing claims based on the recommended retail price (RRP) or a previous ‘was’ price, the RRP or previous price must represent the genuine normal selling price. Savings claims must be genuine (eg, the product must not have been sold at an artificially higher price beforehand). 
Advertisers should also consult the Chartered Trading Standards Institute Guidance for Traders on Pricing Practices in more detail when making such pricing or savings claims.

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

Guidance from CAP indicates that ‘new’ should only be used where a product is sold for 12 months or less, although this will depend on the nature of the product being advertised and the specific market. In a fast-moving market (such as technology), it is advisable to stop the ‘new’ claim after a shorter time period. Equally, in slow-moving markets, it may be possible to use the ‘new’ claim for over a year. It is also possible to use a ‘new’ claim where the product itself is not new but there is a new subset of it (eg, a new flavour). There is no specific guidance on ‘improved’, although any such claims should not be misleading, should not exaggerate the extent of improvement and should be substantiated.

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

Marketing communications for any product should not give a misleading impression about the country of origin of that product. In addition, the ASA has issued specific guidance in relation to the country of origin of alcoholic drinks. The guidance provides that advertisers should not mislead about the location of production when making claims that convey origin or heritage. For example, an advert for Kronenbourg lager stating ‘the French are famous for many things, hurrying isn’t one of them. So naturally a beer from Strasbourg, Eastern France is made rather slowly’ was held to be misleading as it implied that the lager was brewed in France whereas it was in fact brewed in the United Kingdom. In addition, ‘geographical or commercial origin of a product’ is listed in Regulation 5 (5) of the CPUTs as one of the ‘main characteristics’ of a product as to which the giving of false information will likely be a ‘misleading commercial practice’ in respect of which enforcement action can be taken.