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The Advertising Brief - Issue 4

Media & Entertainment Energy 23 August 2023

Welcome to the fourth issue of the Advertising Brief in which we bring you the latest updates and rulings from the world of advertising regulation. Each quarter we bring you concise summaries of the most interesting cases from the UK's Advertising Standards Authority (ASA) with our key takeaways. We also provide an update on any key regulatory developments that brands and marketers need to be aware of.

In this issue we look at a variety of different issues including the ASA's latest guidance in relation to greenwashing, age-appropriate advertising, the use of footballers, navigating the cost-of-living crisis and more. On the regulatory side, we summarise developments in relation to advertising to children and an advertising initiative dubbed the "AI Accountability Act".

 In Issue 4:

  1. Gorillas' cheeky campaign banned for double-entendres
  2. BetVictor bets wrong on its Facebook ad campaign
  3. Inappropriate mobile game ad leaves consumers puzzled
  4. Misleading savings claims during cost-of-living crisis deemed irresponsible
  5. Wildly misleading claims get deodorant manufacturer in a sweat
  6. ASA asks for displays of positive and negative energy
  7.  Ogilvy launches an initiative dubbed the "AI Accountability Act"
  8. Commons briefing note on advertising to children
  9. Government response to UK Online Advertising Programme
  10. Ofcom statement on Regulation of advertising for less healthy food and drink

Recent ASA rulings to note

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Monkey business: Gorillas' cheeky campaign banned for double-entendres

Gorillas, a grocery delivery service, faced complaints about their tongue-in-cheek advertising campaign which used double-entendres to try catch viewers' attention. The ads, which appeared on TV, VOD, and social media platforms, made reference to "hitting the bottle", "getting smashed", "blow", "poppers" and more. They were referring to baby bottles, smashed avocados, sneezing and champagne corks, of course.

The ASA received a total of 26 complaints in relation to six issues, and all six were upheld. Complainants took offense to the content, alleging that the ads normalized and condoned drug use, excessive drinking, and made references to sex. Additionally, concerns were raised about the appropriateness of the content for children, particularly in relation to the TikTok ads.

In response, Gorillas argued the double entendres used in the ads were not offensive but rather served to describe the accompanying visuals. Gorillas stated that their primary goal was to promote the wide range of products they offered through their grocery delivery service.

Clearcast, the agency responsible for pre-approving TV ads, supported Gorillas' position and explained that the ads were intended to be light-hearted and humorous, with adults being the primary audience who would understand the underlying meanings.

Addressing concerns about targeting, Gorillas confirmed that their app required users to be over 18, and they used specific targeting criteria on social media platforms to reach the appropriate age group. They argued that their ads were a visual depiction of a shopping list, similar to placing alcoholic products on the shelves of physical or online supermarkets, and they only targeted individuals who were of legal drinking age. Advertising rules aside, however, TikTok's own T&Cs do not permit the promotion of alcohol, so the ads were removed from that platform.

The ASA ultimately upheld all six issues raised by the complainants. Despite Gorillas' arguments, the ASA found that the references to sex, drugs, and excessive drinking breached advertising rules regarding irresponsibility and the promotion of alcohol and so the ads must not appear again in their current form.

Key takeaways:

  • Ensure adverts do not feature references to drugs, sex or unhealth drinking that are likely to cause offence or be seen as irresponsible.
  • In addition to the Code, consider advertising restrictions in any platform's own T&Cs.

By Laura Hartley, Associate in the Intellectual Property team.

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BetVictor bets wrong on its Facebook ad campaign

The ASA has ruled against the betting company BetVictor for featuring images of two FC Barcelona footballers, Jordi Alba and Serio Busquets, in a paid-for Facebook ad, on the basis that that these figures would have a strong appeal to under 18-year-olds, and therefore broke strict gambling rules, and the ASA Code.

BetVictor argued that despite Barcelona being a top-flight team, their players are not necessarily known in the UK, particularly as Alba and Busquets are not star players compared to the likes of Messi, Rolando or Mbappe. They argued that due to the games they've played and their position on the pitch, they fell into the "medium risk" category of footballers.

They further argued that neither player had a high-value, personal sponsorship deal with a major UK-brand, nor a strong social media presence with under-18s. As well, data from Facebook showed that 100% of the post's viewers were over the age of 25.

However, the ASA held that football is an activity that a significant proportion of under-18s participate in daily, with international elite players likely to appeal strongly to children. It considered that FC Barcelona was classified as a "top" European club under CAP guidance, given that it has competed in Spain's top league.

Both players were also considered "star" players as they had captained Spain in major world or European championships, with Busquets captaining the Barcelona team at the time of the advert. Given this, the ASA considered the players to be "high-risk" under CAP guidance, and thus likely to be of strong appeal to under-18s.

Finally, as Facebook relies on self-verification for age when a user signs up, it is not a robust medium that allows for all under-18s to be excluded from the audience. The ASA therefore concluded that the BetVictor ad was irresponsible and had breached the Code.

Key takeaway:

  • Marketing of gambling products must not include characters or people, nor be associated with or reflect youth culture, such that it would be likely to appeal strongly to under-18s.

By Molly Margiotta, Associate in the Intellectual Property team.

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Mobile game ad leaves consumers puzzled

An advertisement for mobile app game, Match Tile, has caused complaint after showing an animated female character who appeared naked whilst partially covered by tiles with animated images on them. The ad showed an on-screen hand removing some of the tiles with the text 'Can you do better?' superimposed on the video. The complaint claimed the ad, which was shown in another mobile app game, Puzzle Page, sexualised and objectified women and challenged whether the ad was irresponsible and offensive.

The group behind Match Tile did not respond to the complaint or the ASA's inquiries. The developers of Puzzle Page, the game in which the ad was shown, did respond and said that while they work with ad networks to ensure that ads shown are appropriate for their users, they were unable to confirm which ad network had served the ad without further information.

However, they did confirm that since the Puzzle Page game was targeted at a broad audience, they had asked ad networks to filter out ads containing inappropriate themes, including gambling, sex, politics, alcohol and medicines. They also confirmed that they had not received any complaints about the ad and understand that it only appeared briefly before being removed, likely by the ad network.

The ASA expressed concern about the lack of response from Match Tile, in breach of the CAP Code, and reminded them of their responsibilities going forward. When considering the ad, the ASA considered that, because of the partial nudity and the implication that the goal of the player was to remove all the tiles and expose the animated woman fully, the ad was objectifying women by presenting them as sexual objects for the sole purpose of titillating players.

Given this, the ASA also considered the ad was likely to cause serious and widespread offence, and perpetuated harmful gender stereotypes. The ASA therefore decided that the ad was irresponsible and breached the Code, and the complaint was upheld.

Key takeaways:

  • Advertisers have a responsibility to respond promptly to ASA enquiries under the CAP Code.
  • Adverts sexualising women are likely to attract complaint, particularly if out of context and irrelevant to the product or service being advertised.

By Lauren Royers, Senior Associate in the Intellectual Property Team

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Wildly misleading claims get deodorant manufacturer in a sweat

An advert promoting the absence of aluminiums or harsh chemicals in Wild deodorant products has been deemed misleading by the ASA. The YouTube ad showed a model looking uncomfortable when applying – and then throwing away – a variety of spray-on deodorants. The voice over stated that most deodorants stop people from sweating properly, causing pores to "get clogged with all the sweat and toxins that your body is supposed to release", resulting in uncomfortable rashes, body odour and itchy armpits. After the model tries Wild's deodorant, she smiles, and a caption appears stating “No Aluminiums or other harsh chemicals”.

Wild's website provided further information claiming that whilst most antiperspirants use these alumnium salts, they are "perhaps not the safest option". The website referred to studies linking aluminium salts to some undesirable effects on health, for example, the salts being absorbed into the body and disrupting the hormonal balances in the endocrine system.

The ASA ruled that the ad and webpage were misleading as it was likely that consumers would interpret them to mean:

  • many competing deodorants prevented the body from releasing toxins which could lead to rashes or other health problems not specifically referenced in the ad
  • antiperspirants containing aluminium salts could be harmful through interfering with hormonal balances, and that there was a significant body of preliminary evidence to support this.

The ASA stated that the scientific evidence available in relation to the above in 2023 is inconclusive and Wild would have needed much more robust scientific evidence to substantiate its claims to avoid misleading viewers.

Key takeaway:

  • Advertisers should ensure that any claims are corroborated by strong evidence, particularly if related to human health.

By Katie Buckton, Trainee Solicitor in the Intellectual Property team

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Misleading savings claims during the cost-of-living crisis deemed irresponsible

The ASA has upheld complaints against adverts for Huel products on the basis that they were (i) irresponsible and misleading, and (ii) contained an unsubstantiated general health claim.

The first complaint was directed at adverts which misleadingly implied that Huel products contained the same nutritional benefits as, and could be eaten instead of, "traditional" meals. This was misleading, as in order for consumers to meet average daily recommended calorie intakes an adult woman would need to consume five portions of Huel per day and an adult male would need to consume slightly over six portions per day.

The adverts also suggested that buying Huel could save consumers money on a monthly food bill, stating that a month’s worth of Huel cost less than £50. However, this figure was only based on consuming one Huel product a day and was not the equivalent to a month’s worth of food covering all meals. Whilst the advert did state “34 MEALS FOR £1.51 PER MEAL”, implying that the £50 figure was based on consuming one portion of Huel a day, it was formatted in less prominent text at the bottom of the page which the ASA considered was not sufficiently clear.

These adverts were deemed irresponsible as they were published during the cost-of-living crisis and the ASA considered that food bills would have been a significant consideration to consumers.

The second complaint was directed at a claim in the same adverts that “Huel isn’t just a healthy option …”. The ASA ruled that this was a general health claim, because it referred to the general benefits of Huel for overall good health. However, it was not accompanied by a specific authorised health claim and therefore breached the CAP code.

Key takeaways:

  • Any clarificatory text that accompanies a claim must be sufficiently prominent in order to avoid the claim being deemed misleading.
  • The rule against "general" health claims is broad – avoid using the word "healthy" unless you also have obtained a specific authorised health claim.

By Isabelle Savage, Trainee Solicitor in the Intellectual Property Team

energy-mix-600x210px-4

ASA asks for displays of positive and negative energy

In a recent decision, the ASA has upheld a complaint raised against an advertisement by Repsol, a global energy company, on the basis that the advert misled the public.

Repsol's advertisement was displayed on the FT online and featured several images of leaves with text stating that Repsol was "developing biofuels and synthetic fuels to achieve net zero emissions", following which a car was shown parked in a wooded area with text stating "renewable fuels for more sustainable mobility". The complainant raised a complaint that the advert was misleading because it omitted significant information about the overall impact of Repsol's business activities on the environment.

In its response, Repsol asserted that additional information about its commercial activities was available to consumers on its website, which consumers could access by clicking a link at the end of the advert. This included detailed information about its investments in renewable energy projects as well as its fossil-fuel based activities.

The ASA upheld the complaint that the advert was misleading on the grounds that it omitted material information. In particular, the regulator held that the content of the advert would leave both consumers and business readers with the impression that Repsol's development of biofuels and synthetic fuels formed a significant element of their current activities and that it was making meaningful progress towards achieving net zero emissions. Further, whilst consumers could access information about Repsol’s general business activities on their website, further information to contextualise how and when Repsol would achieve net zero emissions, and the role that the development of biofuels would play in that plan, was material to consumers’ understanding of the advert’s overall message and should have appeared in the advert itself.

Key Takeaways

  • This latest decision suggests that energy companies seeking to promote their green initiatives will need to simultaneously provide information about the impact their business as a whole (including references to any fossil-fuel related activities) has on the environment. Such information will need to be clearly displayed in the advert itself. Failure to do so may result in the advert being held as misleading on the grounds of omitting material information, regardless of the consumers' pre-existing knowledge of the company's larger operations outside of the renewable energy sector.
  • Advertisers may also wish to read the updated guidance on greenwashing claims from the Committee of Advertising Practice (CAP) which consolidates the ASA's position on misleading environmental claims and social responsibility. The guidance was updated in June 2023.

By Alex Walker, Senior Associate in the Intellectual Property team.

Recent regulatory updates to note

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Commons briefing note on advertising to children

A recent Commons briefing paper has looked at the current advertising regulatory system in the UK, with specific reference to advertising to children. This is an area of increasing scrutiny for regulation in the UK, both from the self-governing ASA as well as the UK Government.

The briefing paper sets out the advertising framework in the UK and its applicability to advertisements to children (see Rule 5 of the Broadcasting (BCAP) Code and the Non-Broadcasting (CAP) Code). It also sets out the special responsibility that advertisers have to protect children. For example, the "social responsibility clause" in both the BCAP and CAP codes allows the ASA to withdraw adverts which run contrary to the spirit of the codes (even if they adhere to the letter of the Rules). Since March 2011, the online remit of the ASA has been extended to cover marketing on social media and companies' own websites. This gives the ASA very broad scope to regulate advertising to children.

The briefing covers a number of specific issues, such as sexualised imagery, advertisements close to schools, betting and gaming, age-restricted products and advergames (games used in advertising).

One particular area of focus is advertising of foods high in fat, salt or sugar (HFSS). In 2019 and 2020, the UK Government consulted on proposals to extend restrictions on advertising HFSS foods, with a particular focus being advertising to children. The Government's response to these consultations was published in 2021. Following these consultations, Parliament passed the Health and Care Act 2022, which provides for: a 9pm watershed for advertisements of HFSS foods and a prohibition on paid-for advertising of HFSS foods online. See the separate summary below for further details.

Advertising to children online may also be affected by the forthcoming Online Safety Bill, currently being debated in Parliament, which the Government believes should prevent fraudulent advertising to children.

By Jonathan Coote, Associate in the Intellectual Property Team.

 

Government response to the Online Advertising Programme consultation

The UK Government has published its response to the consultation on the UK Online Advertising Programme. One of the two areas where the government believes legislative reform will be necessary is for regulation to protect children against adverts for products and services that cannot legally be sold to them. This will bolster the existing self-regulatory framework in protecting consumers and children and young people by improving transparency on who is placing advertising, who sees what adverts and why, and what action is taken to prevent bad adverts reaching consumers.

The other area is regulation to govern illegal advertising content. This regime will address the role of platforms and intermediaries and publishers in tackling illegal advertising perpetrated by bad actors. It will build on the stand-alone fraudulent advertising duties set out in the Online Safety Bill and the duties provided for under the Consumer Protection from Unfair Trading Regulations 2008.

The government will shortly be consulting on these proposals. In addition, it will also convene a Ministerial-led taskforce to bring together a range of industry stakeholders over the summer to drive forward non-legislative initiatives to tackle online advertising and increase protections for children and young people.

By Scott Vine, Senior Knowledge & Information Officer in the Tech//Digital and Intellectual Property teams.

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The advertising industry launches the "AI Accountability Act"

AI is a hot topic in just about every sector, and advertising is no different. The UK government recently consulted on AI regulation but noted that it does not plan to introduce new legislation in this area just yet. Instead, it hopes to empower existing regulators, such as the Competition and Markets Authority (CMA), to decide on the best approach in relation to the use of AI in their respective sectors. As such, the CMA is opening an initial review of competition and consumer protection considerations in the development and use of AI.

Meanwhile, Ogilvy, one of the world's leading advertising agencies, has launched what it calls the "AI Accountability Act", an initiative aimed at promoting transparency when using AI-generated influencers. The agency recommends a number of measures to ensure transparency in this arena, including declaring the use of AI with a hashtag like "#poweredbyAI" and the implementation of a watermark on AI-generated content. The idea is similar to the "paid partnership" tag used to show an influencer has been paid to promote a brand.

The campaign has the backing of leading advertising industry bodies, such as the Incorporated Society of British Advertisers, so is something to bear in mind if you are beginning to use AI in your adverts, particularly in influencer marketing where "authenticity" is of paramount importance.

By Laura Hartley, Associate in the Intellectual Property Team

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Ofcom statement on Regulation of advertising for less healthy food and drink

The UK communications regulator, Ofcom, has set out how it will implement new restrictions on advertising and sponsorship for less healthy food and drink products on TV, on demand, and online. The new restrictions were introduced by the Health and Care Act 2022, and will take effect from 1 October 2025 (delayed from the original implementation date in April 2022). From that date, TV services and on-demand programme services (ODPS) will be prohibited from featuring advertising and sponsorship for less healthy food and drink products between 5.30am and 9.00pm. Paid-for online advertisements for these products aimed at UK users will be prohibited at any time.

Ofcom also confirmed that the ASA will be designated as a co-regulator for the new prohibition on online advertising for less healthy food and drink products. The existing co-regulatory arrangements between Ofcom and the ASA for TV and ODPS extend to the new restrictions in these media.

To reflect the new restrictions, Ofcom will amend the BCAP Code (for TV advertising) and the Broadcasting Code (for sponsorship on TV) in a way that is intended to ensure that the rules (and associated definitions) reflect appropriately the legislative requirements.

Responding to comments from major players in the industry on how the changes will affect brand advertising, Ofcom noted:

  • The 2003 Communications Act does not specify that brand advertising is exempt from the new restrictions.
  • BCAP will produce guidance on the application of the TV watershed restriction, which will address the meaning of an ‘identifiable’ product, including in relation to brand references.
  • The approach to brand advertising under the current HFSS restrictions will not apply to the new TV watershed restriction for less healthy products. The new guidance will instead be based on the restrictions set out in 2003 Act that apply to less healthy products.

 

By Scott Vine, Senior Knowledge & Information Officer in the Tech//Digital and Intellectual Property teams.

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