Iain Garfield, Partner at BPE Solicitors, looks at the issue of companies making vague or unsubstantiated claims about their products and services.
Unfounded claims and misinformation in advertising leads to penalties from Advertising Standards Authority.
A number of recent decisions by the ASA (Advertising Standards Authority) should act as a stark reminder for companies who want to promote their products or services with fancy-sounding marketing slogans, with claims that are vague or uncertain, with promises that cannot be guaranteed, or using terminology that isn’t entirely clear.
Alpro is a well-known brand of healthy and often plant-based alternatives to dairy products – you can buy their soya, coconut and almond milk in most supermarkets. They ran an advert which claimed their milk products were “good for you” and “good for the planet”.
A member of the public disagreed with the latter claim, arguing that commercial almond farming was actually bad for the planet due to the environmental damage caused in the process. Alpro argued that the public would generally understand that plant-based milk had a lower environmental impact than the animal-based equivalent, and that their almonds were cultivated in a sustainable manner in the Mediterranean using wild bees (rather than ‘commercial’ bees) for pollination purposes.
The ASA decided that any environmental claim must be absolutely clear, and that generic claims (such as that made by Alpro) could be misleading if they omitted significant information. And because Alpro’s advert failed to explain how their products were “good for the planet”, the advert was misleading and had to be withdrawn.
Not necessarily one to shy away from publicity, Brewdog were rapped over the knuckles by the ASA after suggesting that “10 solid gold Punk IPA cans are hidden in Punk 12 packs which will ship from our online shop over the next four weeks. Winners received a gold can worth £15K…”
It turned out that the prizes were merely gold-plated beer cans, rather than solid gold, and 25 customers complained. Brewdog attempted to row back from their original position by arguing that the claim that the cans were made of solid gold was simply an error. They argued that a solid gold can would have cost around $500,000 to make, and therefore it was not reasonable for a customer to assume they’d win half-a-million dollars of gold, particularly when the advert said the prize was only worth £15,000.
The ASA were not convinced, and had little trouble in finding that the advert was misleading.
As part of their advertising material, Gemporia claimed that their ProLife CDB Oils could “help with” the likes of anxiety, arthritis, kidney and heart disease, skin conditions, mood disorders, OCD and various other physical conditions. Following a complaint, the claims were challenged by the ASA and Gemporia were unable to demonstrate that the claims were supported by any credible evidence, research or trade body. Perhaps not surprisingly, the ASA found the advert breached the rules against making unsubstantiated health claims, and that only health claims authorised on the Great Britain Nutrition and Health Claims Register should be used when advertising food products.
And finally, Ethica Diamonds operated a web-based shop selling “diamond jewellery” under the slogan “introducing carbon-neutral diamonds, just a diamond, minus the mining”. Clicking on the website image would take the user to a separate page explaining “The story of our lab-grown diamonds”. And on the FAQ page, it said that “The Ethica Diamond is grown in a laboratory utilising advanced diamond technology which creates a unique gemstone optically identical to diamond”.
A competitor complained to the ASA, which decided that the average consumer would assume anything advertised as a “diamond” would mean a naturally-created mineral. The ASA referred to the trade association’s guidance which advised that lab-grown diamonds be described as either “imitation diamonds” or “diamond simulants”. Ethica Diamonds were ordered to change their descriptions to make it clear that their products did not consist of naturally-created diamonds.
All businesses who advertise their products and services, including those caught by the ASA above, are required to comply with the UK Code on either Broadcast or Non-Broadcast Advertising (known as the BCAP and CAP Codes). These require businesses, amongst other things, to ensure that:
- Adverts are not materially misleading (although obviously exaggerated claims are permitted where the consumer is unlikely to take them literally)
- Adverts do not omit important information
- Adverts are clear, intelligible, timely and unambiguous
- Adverts do not express opinions, and pretend they are facts
- All claims made in adverts can be substantiated by documentary evidence
- Adverts include any and all exclusions, limitations or qualifications
And that is before we even get anywhere near the rules regarding pricing and price-based claims, which is a subject all on its own.
Understandably, businesses want to promote their products and services in the best way possible, trying to create eye-catching campaigns that will boost sales. However, the ASA is there to receive and deal with complaints from the public. And because all of their decisions are a matter of public record, businesses are well-advised to ensure their adverts, promotions and marketing campaigns are accurate, complete, clear and supported by evidence before entering the public domain. That can often be easier said than done, as the ASA’s decisions are littered with businesses who made what they thought were perfectly innocent and harmless statements.
If you are in doubt as to whether the claims and information within your own advertising is correct or would like to discuss any other commercial law matters, contact Iain Garfield, Partner in the Commerical team at firstname.lastname@example.org or call 01242 248246
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