14 June 2012
61% of the complaints the Advertising Standards Authority (ASA) received in 2011 were about misleading advertising. That equates to about 80% of the ads it looked in to. Making sure you don’t mislead people might seem straightforward, but it is a broad area that can require careful navigation by marketers in all sectors. So here we give a quick guide on how to avoid the most common pitfalls.
The rules are broadly the same for both non-broadcast and broadcast advertising, but for simplicity, here we will quote the UK Code of Non-broadcast Advertising.
There are various elements to the Misleading advertising sections in the Advertising Codes, but the overarching principle is captured in Rule 3.1 which says “marketing communications must not materially mislead or be likely to do so”.
The background to that section of the Code explains that the ASA will take into account the overall impression created by an ad, as well as specific claims. The ASA adjudicates on the basis of the likely effect of the ad on consumers, not the marketer’s intentions. So the ASA can find against an advertiser even if it wasn’t their intention to mislead.
How does the ASA judge whether something is misleading?
There are two main tests in the Codes that the ASA applies to judge whether an ad is misleading and both tests must be satisfied. But in making judgments the ASA also considers to whom the ad was addressed and what message the target audience would understand from it.
Marketing communications are considered to be misleading if they:
1. are likely to deceive consumers and
2. are likely to cause consumers to take transactional decisions that they would not otherwise have taken
What is meant by deceive?
Ads can deceive consumers by ambiguity, through presentation or by omitting important information. In short, that is information that the consumer needs to make informed decisions in relation to a product or service. They can, of course, also mislead by including false information.
The transactional decision test essentially means that the misleading claim has to affect the consumer’s behaviour - a “transactional decision”does not only involve the decision of whether or not to make a purchase, but can also be a matter of simply making further enquiries or navigating further into an advertiser’s website, for example.
What does it mean in practice?
You should try to be as clear as possible in your communications with consumers. This means that as well as not making false claims, you shouldn’t hide information from them or exaggerate any claims you plan to make.
You should make sure that you hold evidence for any objective claims you make i.e. those claims that can be proved. Claims that can’t be proved include, for example, opinion: “Our most stylish range ever!” Advertisers must hold the evidence for a claim before publishing an ad.
The best way to make sure you don’t fall foul of the Codes is to check your ad carefully against the Codes, it might help to look at our free online database for advice on particular topics.
To give you an idea of the sort of things you need to think about we’ve compiled a checklist to help you avoid ten common mistakes:
1. Care should be taken to consider the likely message consumers will take from a claim. For example, the ASA found claims on a vegetarian and vegan dating site, where the majority of members were meat-eaters, to be misleading.
2. The capability or performance of a product should not be exaggerated.
3. Make sure your pricing is clear. Our guide to Price statements will help you keep in line with the rules.
4. All relevant information should be made clear in the ad itself. This includes any significant conditions to an offer, which should be stated close, or clearly linked, to the main claim.
5. Qualifying text also known as small print, should only be used to clarify a main claim in an ad, it shouldn’t be used to hide important information or be so great a qualification that it actually contradicts the primary claim.
6. You should hold, before an ad appears, adequate evidence to support all objective claims (i.e. those that are capable of being proven), bearing in mind the impression consumers are likely to take from the ad. Remember that for claims such as those in health, beauty and slimming ads, the level of evidence required is likely to be high. It could take the form of a body of evidence that includes controlled clinical trials on humans, for example.
7. Unqualified environmental claims (e.g. environmentally friendly; zero carbon) should not be used unless you can provide convincing evidence that the product will cause no environmental damage, taking account of the full life cycle of the product from manufacture to disposal. Although less absolute claims (e.g. uses less energy than X) are generally less risky, marketers must hold evidence and make the basis of the comparison clear.
8. If you can’t make a claim yourself (e.g. ‘cures migraines’), you can’t get around the Code by using a testimonial (e.g. ‘it cured my migraines’). Marketers are responsible for substantiating claims that appear in testimonials in the same way as other objective claims. You must also hold documentary evidence and contact details for the person who gave it.
9. It is permitted to make a comparison with a competitor, in the interest of vigorous competition and public information. However you should ensure the basis of the claim is clear, that it is made on an objective, like-for-like basis and, where necessary, that you hold evidence that relates to both your product and your competitor’s. If you can’t gain access to your competitor’s data to confirm the comparison, then you can’t make the comparison.
10. Finally, obvious exaggerations (“puffery”) and claims that the average consumer is unlikely to take literally are allowed and don’t need to be substantiated - provided that they do not materially mislead. For example, the ASA considered, in the context of an ad for a Chinese restaurant, the average listener would understand the claim “world-famous” to be tongue-in-cheek and exaggerated.