Misleading claims in advertising – how to stay compliant without compromising creativity

By Clarion
schedule5th Nov 24

The world of advertising can be complex. In most cases, products and services are created to solve a problem – one that the inventor, be it an individual or an organisation, likely has particularly strong feelings around. It’s that drive and passion that brings the product to life. But when a business is passionate about a product and the impact it can have, that can sometimes lead to falling short of advertising codes in the UK.

In this blog, we demonstrate the surprisingly common errors businesses have made, how easily they can happen, the consequences of these failures, and how Clarion can support you and prevent you from being in the unfortunate position that many other businesses have faced.

Mistakes

Trends and consumer priorities play a tremendous role in marketing. Their evolution can have a dramatic impact on how a product is positioned in the market. Businesses follow these changes closely to ensure their products appeal to their audience, as well as increasing the potential for profitable sales performance. But without the right care and attention, following these trends can sometimes mean innocently intended phrases to keep up with the ever-changing market, may lead to the use of incorrect and misleading terms to communicate the product and its benefits.

“Sustainable”, “Weight Management”, “Substantially Cheaper”, “Zero Calorie”, and “Clears Acne” - these are all widely used examples of words and phrases (many of which you likely recognise from a vast number of products in recent years) that have broken the advertisement codes in the UK. Initially reading this, you may think that the codes and regulations take a rather harsh approach, and in some cases, you may even feel that the UK advertising codes inhibit the potential for creativity in your marketing. But it’s important to note that these codes exist to protect consumers.

The ASA do not just consider the word or phase in isolation, but the inferences that the consumer may take. A phrase claiming to benefit something, or someone, can only be used if there is research and data that can back this claim up. Taking the ’sustainable’ example, sustainability is currently a huge motion of interest, and understandably, businesses want to demonstrate how their product can be seen as sustainable throughout their marketing materials. But great care should be taken to make sure the advert is responsible, true, and not considered Greenwashing. Greenwashing is the act of making false or misleading statements about the environmental performance or impact of a business, product or service. This can occur in explicit ways, such as using environmental buzzwords like ‘natural’ and ‘eco-friendly,’ as well as in implicit ways, such as using nature-based imagery on product packaging. This is an example that many businesses, both large and small, have fallen victim to in recent years.

Some mistakes can be more apparent as to why they have been targeted by the ASA. A recent ruling from the ASA prohibited a company from publishing a customer endorsement on social media where it was stated that their supplement could reduce symptoms of conditions such as anxiety and depression. Health claims are those which state, suggest or imply that a relationship exists between a food category, a food or one of its constituents and health. The use of health claims seems to be an area of particular focus for the ASA at the moment. General health claims, i.e. those which reference a general health benefit of a food/ingredient such as “healthy” must be accompanied by a specific health claim that is authorised on the GB NHC register and meets the requirements specified in that register to make the claim.

Consequences

The Advertising Standards Authority (ASA) is an independent regulatory body with its key focus on ensuring advertisements are not misleading, or likely to be misleading to consumers.

The ASA have various powers to limit misleading advertisements. Often where the ASA rules that an advertisement has breached the advertising codes, it will require that the advertisement in question is either removed or amended so that it complies. It is important to note that the ASA’s rulings are published on their website. The ASA do have the power to refer cases to Local Authority Trading Standards (known as the legal backstop), but this is generally reserved for repeat offending where advertisers fail to heed the ASA’s rulings.

In competitive markets, where there is pressure to meet sales targets, the consequences of advertising errors may lead to significant time and money spent on corrections. In addition to consuming resources, the fact that the ASA’s ruling is published can have reputational consequences as well as affecting consumers’ trust and confidence in the brand.

Solution

You now may be thinking, how do you still have creative freedom to advertise, without the possibility of a sanction from the ASA? We understand the pressure that businesses face, especially in today's economic climate. We want businesses to continue encouraging the creative world of advertisement and marketing.

Our dedicated Regulatory team can navigate this complex area for you to ensure your advertisement is fully compliant without lacking excitement or creativity. We can review your proposed advertisement and flag any possible issues that could be problematic with the ASA and guide you on how to adapt the advertisement to still stand out in a competitive market. Where the ASA has already been in contact, we will support you through this process, by advising you on a possible strategy either to challenge the ASA where appropriate or mitigate the failures. Finally, we can support and work with you and your marketing teams to prevent this from happening again.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

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