Loose talk can result in outlawed adverts

Media law specialist, Paul Renney, examines two recent cases ruled on by the Advertising Standards Authority and advises advertisers and their agencies to check the latest interpretation of the rules.

"Legal, decent, honest, and truthful", is the main principle of the British Code of Advertising, Sales Promotion, and Direct Marketing (CAP Code), the general rule book for non-broadcast advertisements, sales promotions and direct marketing communications, issued by the Committee of Advertising Practice, and overseen by the Advertising Standards Authority (ASA).

Two recent advertising complaint rulings have demonstrated that, depending on particular circumstances, the ASA may take a restricted interpretation or a broader interpretation of the CAP Code.The two cases, detailed below, relate to:

• claims of "as seen on" or "as seen in"; and
• socially responsible advertising.

Advertisers and their agencies therefore need to keep abreast of the latest interpretation by the ASA of the CAP Code, to be aware of the relevant advertising codes and how they are being interpreted by the industry bodies.

Claims of "as seen on" or "as seen in"

"As seen on" and "as seen in" are often used in product advertising campaigns, to give some extra credence to the products being advertised. These claims indicate to most consumers that they have been advertised or modelled in other media, but a recent advice note by the Committee of Advertising Practice (CAP) Executive, has suggested a tightening of the rules around paid-for advertising and product placement.

The advice note followed two recent decisions by the ASA, which upheld complaints against an advertiser, Ergoflex Ltd for making claims that their memory foam mattresses were "as seen in 4Homes" and, "As seen on TV". Following a complaint, the ASA investigated and discovered that Ergoflex had actually supplied their products to the programme makers for use in a home makeover programme. However, there was no specific reference to the product itself, so the ASA concluded that the claim was not justified.

In another instance involving the same advertiser, Ergoflex had stated that the product was "as seen" in some magazines and newspapers. In the instances investigated, it turned out that, aside from one occasion, Ergoflex had actually paid for advertising in the listed publications. In one case, however, the magazine appeared to carry an independent reference to Ergoflex’s half price mattress sale in its "House Beautiful News" section. The conclusion reached by the ASA was that it was acceptable to claim "As seen in House Beautiful" because it appeared in editorial, not advertising, space. Other claims that the product had been seen in other publications were considered unacceptable.

This reflects a tightening up from earlier decisions. The lessons to take away are that claims like "as seen in magazine X" or "… programme Y" are likely to be considered by the ASA to require more than the just the appearance of advertisements in other media. Depending on the particular context, the ASA seem likely to consider that such references imply there has been some form of editorial evaluation, endorsement or independent review. If, however, this is not the case, marketers should change claims to "As advertised in…" or similar.

This may seem a small change, and that an "as seen on" etc., claim is strictly in line with the requirement for truthfulness, but as this body of rulings develop, it is clear that a relatively sophisticated approach is going to be taken to these general phrases.

While the CAP Executive’s advice is not binding on the CAP, the CAP advisory panels or the ASA, it is a good indication of how the ASA are likely to approach similar complaints in future, and advertisers and their agencies would be well advised to study and follow the advice.

Socially responsible advertising

The second recent ruling by the ASA, is an additional clarification of the rules which may have been interpreted in a rather loose way by the advertiser.

It involved a complaint against an advertisement for Paddy Power which appeared in The Sun newspaper for an online gambling website. On 15 October 2011, the advertisement stated "Money-back if Suarez scores. Liverpool v Man UTD. If Suarez scores we’ll refund losing bets". The advertisement pictured the football player Luiz Suarez in an action-style shot wearing a football shirt.

A single complaint was received, that the advertisement was socially irresponsible because it featured prominently Luiz Suarez, who was under 25. The CAP Code, as it relates to Gambling, has a general rule, 16.1, that marketing communications for gambling must be socially responsible, and at rule 16.3.14, that "(such communications….) must not include a child or a young person. No-one who is, or seems to be, under 25 years old may be featured gambling or playing a significant role." (underlining added).

When the ASA investigated, the response from Paddy Power and News International (publisher of The Sun) was that "they did not believe the ad would have particular appeal to young or vulnerable people, or encourage young people to gamble, on the basis of Luiz Suarez’s age or image." They confirmed that Suarez was 24 years old, and said "they featured Suarez in the ad as he was the subject of the bet, and he was featured in his role as a professional footballer, rather than in connection with the act of gambling." They did not believe that featuring him in this way meant that he played a significant role in the advertisement. They believed there was a distinction between featuring someone under the age of 25, who was the subject of the bet, and acting in their capacity as a sports person, and featuring a person under 25 promoting the act of gambling or betting.

The ASA were having none of this rather restricted interpretation and considered that because Suarez was pictured individually and was the focus of the ad, he was likely to be seen by consumers to be playing a significant role." So an understandably broad interpretation was placed on "playing a significant role". The ASA concluded that the advert breached the Code, and they informed Paddy Power and News International that it must not appear in its current form again.

Just a couple of examples of, on the one hand (or on the one mattress), a quite restricted interpretation of the Code, and, on the other hand (or other bet), a broader interpretation of the Code.

It is worth remembering that these investigations can be triggered by a single complaint and, while these may come from consumers with little else to do, they often come from competitors; the effect of an investigation upholding a complaint, results in negative publicity for the advertiser, which of course greatly diminishes the value of the original advertising!