ThinkHouse Advertising Seminar - ASA update

Zoe Pearman: Hello everyone. I am Zoe Pearman a Senior Associate in the Intellectual Property and Advertising law team here at Gowling WLG.

So as part of our recent seminar "Advertising Law: A Year in Review, I gave an update on some notable Advertising Standards Authority Rulings from 2023. So the purpose of this webinar is just to highlight some of the points from those rulings that I discussed at our own personal event at the end of January but if you wanted to know any more of the detail of these rulings or would like to discuss any of the issues that I raise please do contact myself, Dan Smith or Kate Hawkins.

So my session

The first part of my session was a kind of like a whistle stop tour on some of the ASA rulings from 2023 around social responsibility. I focussed primarily on three topics. The first of which was stereotyping. So I discussed that the ASA has a relatively long-established position on gender stereotypes; being that marketing communications must not include gender stereotypes that are likely to cause harm or serious or widespread offence. So one of the rulings that fell foul of this last year was an out of home advert for rated People. As you will see on the slide that it stated "building work, it's a man's game, a bit like football was". So it was felt that despite the intention being to encourage diversity into the trades profession the ad could be seen as lamenting that football was no longer a woman's game and therefore was likely to cause offence.

While this rule and position is well established, following the recent Calvin Klein FKA Twigs ruling there has been some backlash and calls for the ASA to revisit their rules around gender stereotyping, so this is an area that is one to watch. Following this I looked briefly at the ASA guidance that was issued last year around avoiding racial and ethnic stereotypes which are likely to cause harm or serious or widespread offence. So this guidance was then reinforced by a number of rulings including those against The Ministry of Justice and also Outsourcefull, the latter of which you can see of the slide and as you will see it focuses on the stereotypes that may be seen as complimentary. So for example, being intelligent, hardworking, strong or athletic but nevertheless the complaints were upheld.

So the next topic I then looked at was " use of swear words " so it is clear from rulings in 2023 against, for example, Universal Music Operations and GIRLvCANCER that the ASA do remain relatively conservative around the use of explicit content and swear words. They take the view that swear words should not be used in untargeted media - so that's media and adverts that can be seen by all members of the public including children. So when I was looking through these rulings it reminded me of the ruling against Tesco in 2022. Tesco used words such as like "shiitake, pistachio and fettuccine" in the context when they were intended to allude to as well as you can see from this example on the slide. The ASA concluded that the mere illusion to swear words was sufficient to cause serious and widespread offence. So this is just something that brands need to be aware of. The ASA does have quite a conservative position and if you are looking to make a more irreverent approach to your marketing just take care.

The last topic in this kind of like social responsibility round up was around tagretting. So there are always a number of complaints, and last year was no exception, that just read really really badly. For example, there was a ruling against Wild Cosmetics, so we have got a snip of that here on this slide where the complainant's child was on YouTube, he was watching a channel that featured videos relating to Minecraft and the pre-role ad that was presented to him featured content that was inappropriate for children to view. The ASA's position is clear and they think that the marketer will have ultimate responsibility for ensuring that age restrictive campaigns are targeted in accordance with the rules. They also have really quite high expectations when targeting online media. You are expected to choose the right media and you must use all available tools to avoid targeting children. So simply relying on a self-declaration of age, for example, you ticking a box to say I am over a certain age that's not sufficient, marketers will also be expected to apply appropriate interest based targeting tools so looking for people who are over a certain age with interests that are relevant to that age group.

So following that really whistle stop tour on social responsibility rulings I looked at some rulings on prize promotions, so this is an area where we as a team have considerable experience, we do a lot of prize promotion terms and conditions and advice for our clients and it's where I am going to focus for the purposes of this post event webinar.

So I started this session with a reminder of what happens when prize promotions go wrong. I am sure you will be aware of the infamous BrewDog promotion where all the comms stated that the winner will receive a solid gold can, the can's weren't solid gold and were in fact gold plated and the promotion was therefore misleading, but not only was it misleading from the purposes of the ASA-; BrewDog's mistake was headline news and BrewDog ended up contacting all of the winners and offering them an alternative. They ended up paying about, almost, £500,000 in total to the winners.

So there are a couple of rulings that I discussed on the day of the seminar that I would like to flag to you now. So in the summer the ASA upheld complaints in relation to a Dominoes promotion where they were offering free pizza. So Dominoes withdrew the promotion because it believed there was a really large redemption rate and that was being brought about by abuse i.e. it thought that the same customer was going over and over again, continuing to redeem it multiple times rather than only the once. However, neither the display materials, the ad itself, or the promotion terms and conditions advised that the offer was limited to one per household and there was also no other limitations flagged in the comms, so by withdrawing the promotion the ASA concluded the promotion had not been administered fairly and that it was likely to cause participants unnecessary disappointment which is contrary to the Advertising Standards Authority Code Rules. So, this ruling very much serves as a reminder that where promotions can only be redeemed once, make sure that's in your terms and conditions, both the long form and the short form and it needs to be clearly stated along with any other limitations on redemption. If you do look to withdraw, update, amend or any other kind of changing a live offer we really recommend you seek legal advice before doing so because it can get you into trouble and can be a tricky situation to navigate. And if you do want to withdraw a promotion then in order to kind of mitigate customer disappointment and potentially the practical risk of a complaint being made to the ASA, we recommend considering honouring the original give away for customers who approach you rather than providing them with an alternative.

So the second ruling that I discussed is one against Princes Foods. So Princes Foods ran an in-store campaign promoting the chance to win gift vouchers, but as you will see here from the display materials there was a lot of information missing so the ASA was concerned that it omitted key information, for example, it didn't say how the promotion worked or how prizes were allocated, it didn't mention that there was a possibility that not all prizes would be won so the ASA very much feels that consumers have an expectation that all prizes referred to will be won. In this instance I think Princes Food ended up giving out one £500 voucher out of a potential advertised prize pot of £125,000, so that needs to be flagged in the terms and conditions. It also didn't mention how likely it was for a consumer to win, sowhich in reality given what I just mentioned was extremely low so the ASA felt that because the comms exaggerated the likelihood that the consumers would win a prize it was misleading and overall the display materials didn't provide sufficient information.

So this just highlights something that we always like to flag. There is an inherent risk when preparing short form terms and conditions to put on your display materials in relation to a prize promotion. You have to make a judgement call as to what are the most important terms and conditions. But it is worth bearing in mind the ASA is clear, significant conditions which are likely to affect a consumer's understanding of the promotion and their decision whether or not to participate should be included on the display materials themselves, so in that short form copy that you see.

The final topic I looked at was on "comparative advertising". I noted that there were a number of decisions and complaints both about and by telecoms providers so this is just kind of a helpful reminder that there are a number of sectors where competitors pay close attention to each other's claims but we are not going to focus on that because it's quite sector specific and I instead focussed on an Advertising Standard Authority ruling against Always.

So Always sought to advertise it's 'Always Discreet' product as against the leading brand. So it's long been established that in order to make a lawful comparative claim you need to compare products meeting the same need or intended for the same purpose. However, in this instance the ASA acknowledged that the Always ad compared a product that did meet the same need but it didn't compare it's product against the leading brand's nearest equivalent product and, therefore, it kind of exaggerated the benefit of it's own product. So this is something that brands should be aware of when they are making comparative claims because it adds an additional hurdle.

So, yeah as you can see the ASA was pretty busy last year. So there were just under 12,000 ads that were amended or withdrawn following ASA action from January to June, so just in the first half of the year, and last year has already provided a number of reminders on what the ASA will expect when it comes to prize promotions, comparative claims, and also where it draws the line on harmful or offensive stereotypes and other content.

If you would like to discuss any of these rulings in further detail or if you have an advertising law query please do reach out to myself, Dan Smith or Kate Hawkins.

Thank you for listening.