SECTION 5: MISLEADING ADVERTISING

Background:

Television advertising can be a powerful medium for communicating advertising messages but is unsuited to providing consumers with detailed, permanent information about products and services. The rules in this Section are therefore designed (amongst other things) to ensure that advertising does not misrepresent the nature, benefits and limitations of advertised offers.

 

5.1 DEFINITION OF MISLEADING ADVERTISING

 

No advertisement may directly or by implication mislead about any material fact or characteristic of a product or service

 

Notes:

(1) See also 7.1 (Misleading advertising and children) for additional rules about advertising for products and services likely to be of interest to children.

(2) Advertising is likely to be considered misleading if, for example, it contains a false statement, description, illustration or claim about a material fact or characteristic. Material characteristics include price, availability and performance. Any ambiguity which might give a misleading impression must be avoided.

(3) Even if everything stated is literally true, an advertisement may still mislead if it conceals significant facts or creates a false impression of relevant aspects of the product or service.

(4) Scientific terms or jargon, statistics and other technical information should not be used to make claims appear to have a scientific basis that they do not possess. Equally, statistics of limited validity must not be presented in such a way as to mislead, for instance by implying that they are universally true.

(5) An advertisement may be misleading even if it does not directly lead to financial loss or a misguided purchasing decision. The ASA and BCAP may also regard an advertisement as misleading if, for example, it causes viewers to waste their time making enquiries, only to find that offers are unavailable or that there are important limitations. This could involve encouraging viewers to visit shops, or to make lengthy telephone calls (including freephone calls).

(6) When assessing whether an advertisement is misleading, the ASA and BCAP consider the overall impression likely to be conveyed to a reasonable viewer. They do not consider the intentions of the advertiser, nor simply whether the advertising meets legal or other regulatory requirements.

(7) In addition to its delegated powers under the Communications Act 2003, the ASA has a duty to enforce the Control of Misleading Advertisements Regulations 1988 (as amended).

An advertisement is misleading if:

            (a) it is likely to deceive those who see it and

            (b) as a result of that deception, is likely to affect consumers' economic behaviour or

            (c) for the reasons given in (a) and (b), it injures or is likely to injure a competitor of the person whose interests the advertisement promotes.

 

5.2 CLAIMS

 

5.2.1 Evidence

 

Licensees must obtain adequate objective evidence to support all claims

 

Notes:

(1) Where a claim is based on scientific research or testing, that work should have been conducted in accordance with recognised best practice. Where licensees lack the specialised knowledge to assess the adequacy of evidence, they must consult independent experts.

(2) Licensees must make their own independent assessment of evidence submitted in support of advertising, and of any advice they have commissioned.

(3) Absolute claims – eg ‘best on the market’, ‘lowest prices guaranteed’ – should be avoided unless they are backed up by clear evidence and are based on a formula on which an advertiser can completely deliver. In particular, licensees should be alert to the fact that such claims may be invalidated by sudden changes in the market or the actions of competitors while the advertising is still on air. For this reason, absolute price claims should be treated with great caution.

(4) Under the Control of Misleading Advertisements Regulations 1988, the ASA is empowered to regard a factual claim as inaccurate unless adequate evidence of accuracy is provided to it when requested.

(5) A claim can be implied or direct, written, spoken or visual. The name of a product or service may in itself be regarded as a claim.

 

5.2.2 Implications

 

Descriptions, claims and illustrations must not imply attributes, capabilities or performance beyond those that can be achieved in normal use

 

5.2.3 Qualifications

 

All important limitations and qualifications must be made clear

 

Note:

Important limitations and qualifications include those on availability, particularly where failure to mention such conditions is likely to lead viewers to assume that an advertised offer is available on equal terms to all who might see it. Such restrictions might include geographical restrictions, limited numbers of purchases per person, age or sex restrictions etc.

 

 

5.2.4 Use of the word ‘free’

 

(a) Advertisements must not describe an offer as ‘free’ if there are costs to consumers other than actual postage or carriage, non-premium rate telephone charges or reasonable travel required to collect the offer. Advertising must make clear the extent of the consumer’s liability for any costs

 

Notes to 5.2.4(a):

(1) Trials can be described as free even if the customer has to pay the costs of returning the goods, provided this is made clear in the advertising.

(2) Making clear the extent of liability would include, for example, explaining the need to collect tokens, or to travel a considerable distance to redeem an offer.

 

b) No element of an offer may be described as ‘free’ if viewers are likely to be misled as to whether it is genuinely additional to the offer

 

5.2.5 Guarantees

 

Advertisements must make clear significant limitations to an advertised guarantee

 

Notes:

(1) This rule applies equally to ‘warranty’ and similar terms.

(2) This does not prevent the colloquial use of the word ‘guarantee’ where there is no risk of it being construed as part of an offer. For instance ‘guaranteed to make you laugh’.

 

5.2.6 Environmental claims

 

Advertisements must not make unsubstantiated claims about environmental impact

 

Note:

Best practice on environmental impact claims is contained in ISO 14021 and the Department for the Environment, Food and Rural Affairs’ Green Claims Code. Licensees must satisfy themselves that any departure from this best practice is justified.

5.2.7 Animal testing

Claims that a product has not been tested on animals are unlikely to be acceptable

Notes:

(1) Even though a finished product has not been tested on animals, it will normally be very difficult to prove that none of the materials used in its manufacture have ever been tested in that way.

(2) Some statements about, for example, an advertiser’s opposition to animal testing may breach rule 4 (Political and controversial issues). This requires television advertising to be impartial on matters of political controversy and public policy.

 

 

5.3 PRICE CLAIMS

 

5.3.1 Accurate pricing

 

Indications of actual or comparative prices, or the manner in which a price is to be calculated, must be accurate and must not mislead by omission, undue emphasis or distortion

 

Note to 5.3.1:

The Consumer Protection Act 1987 and supporting regulations lay down the statutory framework for indications of price, price comparisons and reductions. In addition the DTI has issued guidance in the form of a Code of Practice for Traders on Price Indications and licensees are advised to refer

to this.

 

5.3.2 Pricing requirements

 

(a) Quoted prices must be inclusive of all non-optional taxes, duties and fees which apply to all buyers

 

Notes to 5.3.2(a):

(1) Areas where this is particularly relevant include flight and cruise advertising.

(2) If a non-optional charge is variable and therefore impossible to quantify, advertising should make clear that it is excluded from the quoted price.

(3) Television advertising is regarded by the ASA and BCAP as generally being a business-to-consumer medium. Advertising quoting only VAT exclusive pricing would be appropriate only in exceptional circumstances.

 

(b) Where goods are available on an instalment basis and the individual instalment costs are given, the total price of the goods must be equally prominent. If the instalment frequency is other than monthly, this must be made clear

 

 

Note to 5.3.2(b):

In practice, this is likely to apply only when goods are to be paid for in four or fewer instalments. Advertising for schemes involving more than four instalments is likely to be subject to the Consumer Credit (Advertisements) Regulations 2004. 

 

(c) Where the headline cost of goods and services available by mail order or other distance selling means does not include delivery, the delivery charge must be clearly indicated beside the headline price.

 

Note to 5.3.2(c):

Rule 11.2 deals specifically with distance selling. Licensees should also refer to the Consumer Protection (Distance Selling) Regulations 2000. 

 

5.4 CREATIVE TREATMENTS

 

5.4.1 Visual techniques and special effects

 

Advertisements must not use any technique that is likely to give a misleading or unfair impression of the product or service

 

Note:

This does not prevent the use of techniques to overcome technical problems in filming: for example, the use of a visually identical material as a substitute for ice cream which would melt under lights. But it would prevent the use of glass sheeting to exaggerate the effects of floor polish.

 

5.4.2 Superimposed text

 

(a) Text in advertisements must be legible and must comply with BCAP Guidance on On-screen Text and Subtitling in Television Advertisements

 

(b) Whilst text may expand or clarify a claim, or add minor qualifications, it must not contradict the claim

 

Notes to 5.4.2:

(1) Advertising can mislead if text intended to qualify a claim or offer is too long, complicated or obscurely expressed to be easily absorbed by viewers in one viewing.

 

5.4.3 Denigration

 

Advertisements must not discredit or unfairly attack other products or services, advertisers or advertisements either directly or by implication

 

5.4.4 Testimonials

 

Testimonials or endorsements used in advertising must be genuine and be supported by documentary evidence. Fictitious testimonials must not be presented as genuine. Any statement in a testimonial that is likely to be interpreted as a factual claim must be substantiated

 

Note:

In ambiguous cases it may be necessary to indicate, for example, that an advertisement features actors presenting the advertiser’s opinion, or that those giving testimonials are employees or relatives of employees of the advertiser.

 

5.4.5 Subliminal advertising

 

No advertisement may use images of very brief duration, or any other technique which is likely to influence viewers, without their being fully aware of what has been done

 

5.4.6 Comparative advertising

 

There must be no realistic likelihood that viewers will be misled as a result of any comparison, whether about the product or service advertised or that with which it is compared

 

Notes:

(1) Comparative advertising is regulated by the Control of Misleading Advertisements Regulations 1988 (as amended).   They state that an advertisement is ‘comparative’ if it explicitly or by implication identifies a competitor or its goods or services.

(2) For the purposes of this Code, however, ‘comparative advertising’ extends beyond the narrow definition contained in the statutory regulations and covers comparisons of a more general kind where a competitor is not identified.

(3) Whilst only the courts can decide the precise meaning of the law, the following points may be helpful:

A comparative advertisement is acceptable if:

            (a) it is not misleading

            (b) it compares goods or services meeting the same needs or intended for the same purpose

            (c) it objectively compares material, relevant, verifiable and representative features (which may include price)

            (d) it does not create confusion between the advertiser and the competitor, or between their respective

            trade marks, trade names, other distinguishing marks, goods or services

            (e) it does not discredit or denigrate

            (f) it does not take unfair advantage of a competitor’s trade marks, trade names or other distinguishing marks, or of the designation of origin of competing products

            (g) it does not present goods or services as imitations or replicas.

In addition:

            (h) products with designation of origin may only be compared with other products with the same designation

            (i) comparisons relating to special offers must indicate when the offer ends or, where appropriate, that the offer is subject to availability.

 

5.4.7 Identification of the advertiser

 

The identity of the advertiser must be made clear if advertising might otherwise be misleading

 

Note:

Viewers could be misled if, for example, advertising by a commercial company appeared to be part of a charity or public service campaign.