Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
CAP may sometimes suggest that products and services are advertised on an availability-only basis.
Efficacy claims
Marketers should hold evidence to support all objective claims made about their product. If the product is a health, beauty or slimming product, marketers should ensure that they hold rigorously controlled clinical trials that, if possible, have been conducted on humans (Rules 3.7, 12.1 and 13.1). This CAP Advice on Substantiation explained the position in more detail and this CAP Guidance explains the types and levels of evidence that the ASA and CAP would expect to marketer to hold for claims for health, beauty and slimming products and services.
If no evidence is held or the evidence submitted to the ASA or CAP is considered to be unconvincing, marketers are often advised to amend their claims. If no persuasive or strong evidence exists for the efficacy of the product, marketers might be told to advertise their product on an “availability-only” platform. That means ads for the product should contain no direct or implied claims about the efficacy of the product. In its most basic form, an availability-only marketing communication may contain only the product name, its price and where it can be bought.
Factual claims
If the product contains ingredients, marketers may include descriptive information about them.
Claims such as “This product contains garlic, ginseng and aloe vera” are likely to be acceptable in availability-only marketing communications. Similarly, marketers of products that have component parts or ‘added extras’ may be able to give factual information as long as no efficacy is implied; claims such as “This product contains magnets” are probably acceptable whereas claims such as “This product contains magnets, which have been used for thousands of years in the treatment of ailments” are not. As long as they do not refer to healing, marketers may claim “This product contains magnets, which have been included in bracelets/ necklaces for thousands of years”. Marketers may also include descriptive information about the product, i.e. “This product is made of high tensile steel” or “This product is available in four colours”.
Claims in product names
Some product names imply efficacy. If the product name contains a claim, for instance, ‘Slim While You Sleep’, ‘LawnQuick’ or ‘TestoBoost’, and the efficacy of the product remains unproven, the claims are likely to be considered misleading.
Testimonials
Marketers sometimes include testimonials in availability-only ads. The Code states that testimonials alone do not constitute substantiation and the opinions expressed in them must be supported, if necessary, with independent evidence of their accuracy (Rule 3.47). If the efficacy of the product remains unproven, testimonials should not be used to imply that the product works or exaggerate its usefulness; testimonials may not circumvent the availability-only platform.
It is easy to identify some testimonials that do not follow that advice, for example “I’ve suffered from arthritis for years. Taking product X has improved my mobility and eased my pain” is a clear claim of efficacy which would be problematic if insufficiently robust evidence was held.
Marketers may include general information about other aspects of the product or service. That could take the form of a testimonial that praises the customer service or delivery time, for example “It was delivered really quickly”, “I loved the customer service” or “The operators on your ordering phone line have been informative and helpful”.
See also: CAP Advice on Claims in testimonials and endorsements