The Advertising Standards Authority’s ‘Big 5’

Copyright - Advertising Standards Agency

Copyright – Advertising Standards Authority

The Advertising Standards Authority (ASA) has published its 2012 Annual Report outlining its activities over the past year and its focus going forward.

At the heart of the report, the ASA sets out the ‘Big 5’ priorities on which it intends to focus over the coming year, all of which concern misleading advertising in one form or another. The focus on misleading advertising is not surprising given that approximately 70% of all the cases which the ASA dealt with in 2012 concerned misleading advertising.

The ‘Big 5’ concerns are:

1. Free trials

Many online businesses are picking up on the practice of luring customers into signing up to a (usually one month) free trial which, if the customer does not cancel, automatically becomes a monthly service.

ASA made it clear that they are alert to this practice, however, they did not say what action they are taking against it. Their recommendation is for consumers to read all small print carefully before handing over payment. Therefore, businesses should be weary when employing this type of sales technique and note that it is best practice to clearly bring your terms and conditions of sale to the buyer’s attention prior to them signing up to the free trial.

2. Daily deals

Daily deal websites are becoming more and more popular amongst the last-minute shopper. Websites and apps such as Groupon all offer last-minute deals to the impulsive shopper. However, ASA has reported that there are “widespread problems” such as:

• failing to conduct promotions fairly;

• not making clear significant terms and conditions;

• failing to provide evidence that offers were available; and

• making exaggerated savings claims.

ASA explains in its report that it has advised businesses on improving their internal processes and that it has received fewer complaints as a result. It would therefore be wise for businesses seeking to use daily deals as part of a marketing campaign to take note of the problems the ASA has highlighted above.

3. Misleading pricing

ASA has picked up on the selling of products using techniques such as ‘bait-pricing’, ‘drip-pricing’ and ‘partition pricing’ structures where subsequent charges are added to the original advertised price at later stages of the transaction.

An example they provide is the hotel that doesn’t include VAT in its room price. This is an obvious additional costs that is payable by all consumers.

Therefore, businesses are advised to be careful when using these methods as the ASA is making it clear that it will be monitoring them closely.

4. Misleading testimonials

ASA has requested that companies provide proof that the testimonials posted on their websites are genuine. Therefore, it is good practice to retain documentary evidence in relation to the source of any testimonials posted on your website.

Also considered misleading by ASA were the tweets of Wayne Rooney and Jack Wilshere:

The tweet from Wayne Rooney stated “My resolution – to start the year as a champion, and finish it as a champion…#makeitcount gonike.me/makeitcount”.

The tweet from Jack Wilshere stated “In 2012, I will come back for my club – and be ready for my country. #makeitcount.gonike.me/makeitcount”.

They held that these were misleading insofar as readers were misled into believing that the tweets were from the footballers and not sponsored tweets and that there was nothing obvious in the tweets to indicate that they were Nike marketing communications. ASA indicated that by using #ad in the post the tweets would not have breached the Committee of Advertising Practice (CAP) Code.

5. Misleading health claims

If you are marketing a health product the ASA has made it clear that you must have evidence to back up any health improvement claims that you suggest the product features.

Handle with care…

The use of some of these advertising techniques is clearly of interest to businesses and marketers looking to advertise in fresh and different ways. The key for businesses to be sure that any such advertising is fair and honest and does not mislead the customer. The ASA is clearly keeping a watchful eye on these 5 areas of concern and therefore it is prudent for businesses to err on the side of caution when implementing any such marketing tools.

New rules for Online Behavioural Advertising

Bulletin on new OBA rules - click to read PDFSince spring last year, websites and advertisers have been getting to grips with the new law on obtaining consent for cookies.

One common use of cookies is for online behavioural advertising (OBA), and from 4 February 2013 websites and advertisers using OBA will have additional rules to comply with.

The Advertising Standards Authority (ASA) is taking over responsibility for ensuring that consumers are made aware of, and can exercise choice over, the collection and use of information for OBA. The ASA’s first step is the introduction of new rules on OBA which will come into force from early February.

I have prepared an article summarising the key elements of the OBA Rules which websites and advertisers should be aware of. To read this article in full please click here (PDF).

ASA uses its power to ban a Twitter campaign for the first time

Speaking at the Cannes Lions Festival of Creativity on 19 June, Coca Cola’s most senior marketer Joseph Tripodi called on marketers to take a “leap of faith” and embrace social media as a brand building tool. However, as Nike discovered the very next day, advertising using social media is not free from constraints.

Since 1 March 2011 the Advertising Standards Authority (ASA) has had the power to oversee businesses’ marketing communications on their own websites, as well as on social networking sites and other “non-paid-for” space online, to ensure that they comply with the CAP (Committee of Advertising Practice) Code.

The first major case that forced the ASA to look at advertising on social media came to light earlier this year when it launched an investigation into tweets by celebrities such as Katie Price and Rio Ferdinand promoting Snickers. The campaign involved celebrities posting a string of bizarre tweets ending with “You’re not you when you’re hungry@snickersUk#hungry#spon” and a picture of them holding a Snickers. The ASA ultimately dismissed the complaints against Mars finding that the inclusion of the #spon hashtag in the final “reveal tweets” made them clearly identifiable as marketing communications.

There has since been a noticeable increase in the number of sponsored tweets or “tweeting for money” and this looks set to continue. However, in the first case of its kind, the ASA has taken action to “ban” a campaign which features them. As part of its “Make it Count” campaign, Nike UK used the personal Twitter account of footballer Wayne Rooney to post the following tweet:

Nike posted a similar tweet on the account (subsequently deleted for unconnected reasons) of Arsenal footballer Jack Wilshere:

Jack Wilshere – “In 2012, I will come back for my club – and be ready for my country. #makeitcount gonike.me/Makeitcount”.

Responding to a complaint that the tweets were not clearly identified as advertising, Nike claimed that both footballers were well known for being sponsored by Nike and argued that Twitter users would not be misled about its relationship with the players. Nike took the view that the presence of the Nike URL and campaign strap line #makeitcount within the body of the tweets, indicated that the purpose of the tweets was to direct followers to the Nike website and made it sufficiently clear that the tweets were advertising.

The ASA disagreed, finding that the reference to Nike was not prominent and could be missed, making the tweets not obviously identifiable as advertising and putting them in breach of the CAP Code. The ASA held that as not all Twitter users would know about the players’ sponsorship deals with Nike, the tweets should have featured an indication hashtag, such as #ad or #spon, to make it clear that they were marketing communications.

Just the one complaint?

It is interesting to note that the Nike campaign was banned by the ASA despite only receiving one complaint. To coincide with its 50th anniversary, the ASA has recently released a list of the most complained-about ads of all time.

Top of the list was a TV advert for Kentucky Fried Chicken which aired in 2005 and featured call centre workers singing with their mouths full of food. The ad received a record 1,671 complaints with many people considering that it could encourage bad manners among children. However, despite the record number of complainers, the complaint was not upheld by the ASA, which ruled that the ad was unlikely to change children’s behaviour or undermine parental authority.

The other ads to make the top 10 were:

2. Auction World (2004): Shopping channel – 1,360 complaints – referred to Ofcom

3. Paddy Power (2010): Cat being kicked by blind football player – 1,313 complaints – not upheld

4. The Christian Party (2009): Poster saying “There definitely is a god” – 1,204 complaints – not upheld

5. British Safety Council (1995): Condom advert featuring Pope – 1,192 complaints – upheld

6. Marie Stopes International (2010): TV ad offering sexual and reproductive healthcare advice –  1,088 complaints – not upheld

7. Volkswagen (2008): Depicted an engineer fighting multiple versions of himself – 1,070 complaints – partially upheld

8. Yves St Laurent (2000): Poster of naked reclining Sophie Dahl – 948 complaints – upheld

9. Department of Energy and Climate Change (2010): Press and TV campaign about climate change – 939 complaints – upheld in part

10. Barnardo’s (2008): TV campaign about domestic child abuse – 840 complaints – not upheld.

Breaching advertising guidelines? You’re not when you’re #spon

A marketing campaign by confectionary giant Mars has been cleared by the Advertising Standards Authority (ASA) in its first investigation involving social networking site Twitter.

The ASA launched its investigation after receiving complaints regarding a chain of bizarre economy and knitting-related tweets sent in January from the official accounts of the footballer Rio Ferdinand and model Katie Price followed by a final Snickers tweet and a photograph.

On January 24 the Manchester United defender tweeted “Really getting into the knitting!!! Helps me relax after high-pressure world of the Premiership”.  In further postings, he added “Can’t wait 2 get home from training and finish that cardigan”; “Just popping out 2 get more wool!!!”; “Cardy finished. Now 4 the matching mittens!!!”

His fifth tweet read “You’re not you when you’re hungry @snickersUk #hungry #spon”.

In Price’s tweets she wrote about subjects such as the eurozone debt crisis, China’s GDP figures and the economic concept of quantitative easing before finally tweeting a picture of herself holding a Snickers bar with the same message as Ferdiand’s “You’re not you when you’re hungry @snickersUk #hungry #spon”.

In making its decision, the ASA considered two points: (a) whether it should have been stated in the first four ‘teaser’ tweets that they were marketing communications and (b) whether the hashtag “#spon” in the final ‘reveal’ tweet made it clear enough that that tweet was a marketing communication.

Responding to the complaints, Mars said that it had “considered in detail” the extent to which the tweets were marketing communications and believed only the last one needed to be identified. Mars argued consumers could not have been misled into making a purchase by the first four tweets as their meaning only became apparent once the campaign was revealed with the fifth message.

The ASA accepted Mars’ argument that the tweets contained the hashtag “#spon” to indicate sponsored content but it disagreed with Mars that the first four only became marketing communications after the final tweet was posted and stated that all five tweets should be considered to be part of an “orchestrated advertising campaign”.

However, the ASA said the final tweet was clearly highlighted as an advertising campaign and that having seen the final ‘reveal’ tweet consumers would understand that the series of tweets were part of a marketing communication. It held that it was acceptable that the first four tweets were not individually labelled as being part of the overall marketing communication and concluded that the ads did not breach the CAP code.

This investigation highlights the importance of disclosing paid-for promotions in all forms of advertising media including blogs, posts and microblogs like Twitter. Whether this is by using hashtags such as #spon, #paid-promotion or #advert or some other statement, in order to avoid breaching advertising legislation, promoters should ensure that consumers understand when they are reading paid-for promotional content regardless of the media through which that content is being displayed.