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Clifford Chance

Clifford Chance

Media & entertainment

Talking Tech

The Advertising Brief

Issue One: July 2022

Advertising Intellectual Property Consumer 28 July 2022

Welcome to the first edition of the Advertising Brief in which we bring you updates from the world of advertising regulation. Each quarter we will bring you concise summaries of the most interesting cases from the UK's Advertising Standards Authority (ASA) with our key takeaways for brand owners to be aware of.

Covering all sectors from food to fashion, tech to telecoms, energy to pharmaceuticals, we're closely following the latest trends and changing regulatory landscape in relation to advertising and marketing. Whether you want to know more about how social media adverts should be disclosed or what regulations apply when marketing medical products, we've got you covered.

In this first issue we look at issues such as: the use of humour;  making clear your ad is an ad; and much more ...

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Another one bites the crust.

Tesco Mobile's recent attempts at humour in the face of rising household costs have fallen flat with over 50 complaints about offensive and socially irresponsible adverts. Tesco published adverts in different media on various platforms including newspapers, social media and public billboards, using thinly veiled references to expletives: "what a lot of shiitake", "what the fettuccine" and "they're taking the pistachio".

The ASA upheld the complaints in relation to most, but not all, of the adverts. The advertising body ruled that the adverts which used words that looked and sounded very similar to the expletives they were implicitly referring to, such as shiitake and pistachio, were offensive. In contrast, the phrase "for fettucine's sake" was not considered to be offensive as "fettucine" is not as closely linked to an expletive.

In some cases, the adverts concealed parts of the word, making it more obvious as to which expletives these vegetable names relate. For example, one video showed the words "what a load of shiit" followed by a picture of a mushroom. The mushroom then rolled away to reveal the word "shiitake". The ASA noted that use of the word "shiitake" in this manner was equivalent to using an expletive and was therefore offensive.

The second complaint related to whether it was socially responsible to display adverts containing "expletives" where they can be viewed by children. This complaint was upheld only in respect of the adverts which had no restrictions on who could view them, such as public billboards that anyone (including children) could walk past. The complaint was not upheld in relation to the adverts that appeared in a newspaper, which proved its demographic was mostly 35+ years old.

Key takeaways:

  • Adverts should avoid references to expletives, or words which are clearly linked to expletives.
  • Adverts that are not suitable for children should be limited to spaces that are restricted and predominantly viewed by adults.

Laura Hartley, Associate in the Intellectual Property team

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Very necessary or Very extravagant?

The ASA has ruled that a radio advert released by online retailer Very was in breach of the BCAP Code in relation to responsible advertising and the advert must not be broadcast again in the same form.

The advert in question, which was released in 2021, featured a fictional mother speaking about her daughter Bella. She states "My Bella is logo mad. I tell you what, she’d rather go to school in her socks than in trainers that aren’t Adidas or Nike. But, I wanted to treat her, so I went to Very and got all the stuff she wanted, and I was able to spread the cost. This was a really big year for Bella, and I want her to smash it …". The statement was followed by a voiceover that said "With Very Pay, you have a choice of ways to pay for this very big school moment. Life is this very moment".

Complainants argued that the voiceover encouraged the use of credit to finance excessive spending on branded goods and argued that the advert was irresponsible. Very responded that the scenario in the advert involved a mother purchasing necessary items for her child. The ASA disagreed and upheld the complaint on two counts.

Firstly, "Very Pay" includes a "Buy now Pay Later" functionality, which allows consumers to delay repayment by up to 12 months. Any monthly balance remaining after the 12 months would incur interest at 39.9 APR representative. Therefore, the adverts messaging explicitly connected the use of a form of credit to buying more expensive goods.

Secondly, the mother in the advert stated that her child would “rather go to school in her socks than in trainers that aren’t Adidas or Nike”. Some listeners may have seen these comments as disparaging the purchase of non-branded items for their children to wear at school, thus putting pressure on parents to purchase expensive items on the basis that they could affect their child's success at school.

Key takeaway:

  • Adverts should not encourage excessive spending, or the use of credit to facilitate this, as this is socially irresponsible.

Uche Eseonu, Associate in the Intellectual Property team

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Hay fever jab adverts shot down

An advert published by The Skin Clinic Faversham on its Instagram and Facebook accounts were removed following an upheld complaint that the posts advertised prescription-only medical treatments to the public.

The adverts promoted a steroid injection, Kenalog, which can be used to alleviate symptoms of hay fever. Kenalog is a prescription-only medicine, which by the ASA's rules, cannot be advertised to the general public.

The advert, which was publicly posted on The Skin Clinic Faversham's Instagram and Facebook pages, featured text stating, “If you have a history of hay fever and other allergies, have tried prescription and over the counter medication, please book in to see if you are suitable for an intramuscular steroid injection (Kenalog) that can surpress [sic] inflammatory and allergic responses”.

The ASA, being of the view that the adverts promoted prescription-only medicines to the general public, upheld the complaint and therefore deemed that The Skin Clinic Faversham had breached advertising rules.

In response, the Skin Clinic Faversham agreed that they should not have promoted this medicine to the public on their Instagram and Facebook accounts and informed the ASA that they had since removed the adverts.

Key takeaway:

  • Adverts must not promote prescription-only medicines to the general public.

Molly Margiotta, Associate in the Intellectual Property team

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Google taken to task

Three Google adverts were made with Channel 4's 'Taskmaster' and were shown during the TV gameshow's ad breaks. In the adverts, two comedians used 'Google Translate' and 'Google Lens' to complete tasks in the style of the show. The ASA considered whether the adverts complied with the BCAP Code by being obviously distinguishable from editorial content.

The first advert was 3.5 minutes long and Google admitted it was "in the style of the show". Google took care to ensure it was distinguishable from editorial content, for example, it was played during a clearly signposted ad break, there was a full-screen appearance of Google's logo at the end, and the superimposed text "#ad" was used throughout. The ASA did not uphold the complaint for this advert, finding that it was obviously distinguishable from editorial content and would be quickly recognised as an advert.

The other two adverts were each 30 seconds long and more closely resembled the style of a 'Taskmaster' trailer. Although they were played during a clearly signposted ad break and featured Google's logo at the start and end, the ASA upheld the complaint because "#ad" was only featured for 3 seconds.

Google argued that this was longer than that recommended in the BCAP's supplemental guidance on the Use of Superimposed Text in Television Advertising for a 30-second advert (2.2 seconds). However, the ASA noted that the guidance recommended a longer recognition period in instances where qualification was particularly significant. This was relevant as the text was needed to signal to viewers, who otherwise may be confused, that they were watching an advert rather than actual programme content.

Key takeaway:

  • Adverts resembling editorial content should use superimposed text throughout their duration if viewers would otherwise be confused.

Jonathan Coote, Associate in the Intellectual Property team

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Lack of support for Adidas' new advert

Adidas UK's recent campaign to promote and celebrate the diverse nature of women's bodies has instead caused several complaints claiming that the advert's use of nudity objectifies women's bodies, causes offense and is inappropriate for children.

Adidas launched a campaign in February 2022 featuring a poster and a tweet containing the bare breasts of 20 women representing a diverse range of skin colours, shapes and sizes. The campaign also included a third poster containing the same series of photographs but with the models' nipples obscured by pixilation.

The campaign aimed to promote their brand-new range of 43 sports bras made in varying styles. With this new range, Adidas aims to dispel the historically incorrect assumptions around the homogeneity of the female body by accommodating for a range of different body types.

Adidas iterated to the ASA that the campaign was intended to promote a positive message, with all models being "supportive of its aims". The advert propelled this message by accompanying the posters and posts with slogans such as "We believe women's breasts in all shapes and sizes deserve support and comfort", "the reason we didn't make just one new sports bra" and the hash tag "#SupportIsEverything". Despite this, the ASA received 24 complaints which could be categorised into the following two types.

The first type of complaint claimed that the campaign was harmful and offensive as it used nudity to objectify and sexualise women's bodies.

The ASA found that the women featured in the poster and the Twitter post were not sexually objectified in a manner that went against the regulator's guidelines, but the ASA did consider that naked breasts are likely to be seen as explicit nudity which may cause harm and offence. This is amplified by the fact that the advert's focus, the sale of sports bras, was only featured in the text and not in any of the imagery.

The ASA also deemed the pixelated version of the poster to be "less immediately explicit", but as still recognisably depicting naked breasts, the concluded the effect is therefore the same.

The second type of complaint challenged whether Adidas' poster, which was displayed in untargeted spaces, was appropriate for display in areas where it could be seen by children.

The ASA noted here that considering the advert was deemed to have explicit nudity, care must be taken to avoid placing them in areas where offence might be caused to those who view it. The posters that Adidas had commissioned were placed in public spaces where it was likely to be seen by people of all ages, including children which could cause widespread offence.

Key takeaway:

  • Adverts must not contain nudity, particularly when displayed in spaces that can be viewed by children, as this may cause harm and offence.

Yousif Alawoad, Trainee in the Intellectual Property team

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The Fast v the Furious: What does it take to be the UK's fastest broadband provider?

The ASA has again made a ruling on broadband advertising as part of a series of complaints by UK broadband providers against one another's advertising practices, dubbed by some the "Broadband Wars".

In 2021, Virgin Media included on its website two adverts including a claim to be the UK's fastest major broadband provider, based on average fibreoptic speeds. BT challenged this claim before the ASA on the basis that (a) the statement was misleading; and (b) it was not verifiable by consumers (as required of comparisons with identifiable competitors under the CAP and BCAP Codes).

The first prong of BT's challenge was made on the basis that Virgin's Gig1 Fibre service was only available in certain areas of the UK. BT were concerned because their full fibre service was available in some locations where Virgin Media’s Gig1 Fibre service was not, and so for those consumers, the fastest major broadband provider was not Virgin Media but BT.

The ASA reviewed the information Virgin Media had provided to substantiate the average download speeds stated in the adverts. ASA found the methodology used to calculate the average download speed of their Gig1 Fibre service was in accordance with Ofcom’s Voluntary Residential Broadband Speeds Code of Practice and the CAP Advertising Guidance for broadband speed claims. ASA agreed that for a minority of consumers the fastest broadband service available from a major provider would be from BT rather than Virgin Media, but the advert made clear Virgin's Gig1 Fibre service was not available in all areas and this was sufficient to qualify the claim. The ASA therefore determined that the advert was not misleading.

However, on BT's second claim regarding lack of verifiability, the ASA held that although the advert included a table describing average download speeds of a number of providers, Virgin should have provided further information about the methodology used to calculate the figure for Virgin Media’s own speed, and to clarify the source of information for the download speeds for the other broadband providers.

As such, the adverts breached the CAP and BCAP codes and should not appear again until amended to include sufficient information to allow consumers to verify the comparison.

Key takeaway:

  • Advertisers must be prepared to substantiate their claims with a high level of detail, including any relevant methodologies used to calculate statistics. 

Roland Scarlett, Associate in the Intellectual Property team