On Tuesday afternoon we held our Advertising & Marketing Law Annual Review. We had a record number of guests tune in to the webinar, so thank you to all those that attended. For all those that weren't able to make it, here are our key takeaways from the event:
- Green Claims: The Competition and Markets
Authority (CMA) published its new Green Claims Code in September
2021 and are now due to begin a full review of green claims
following a grace period. Certain sectors, including fashion, will
be prioritised in the review, but that doesn't mean other
sectors will escape scrutiny. You can find the guidance, including
their principles here. The Advertising Standards Authority
(ASA) has now commenced enquiries into priority areas; e.g. cars.
It is important to note that the CMA covers all commercial
practices, not just advertising and will therefore pick up any
areas that are outside the ASA's remit, such as packaging
claims. The CMA is also able to bring prosecutions, which could
give rise fines. We saw examples of upheld complaints against Hyundai and Alpro, whilst Jaguar Land Rover were able to defend their ad
successfully.
- Influencer Marketing: The Incorporated Society
of British Advertisers published their new ISBA Code of Conduct in 2021. It's not a
new set of rules, but a guide to 'best practice' when using
influencer services. It aims to deliver the transparency consumers
expect and deserve whilst enabling authentic and effective
influencer marketing. Notably, it specifies #ad as it's
preferred method of disclosure in favour of tools such as the paid
partnership handle on Instagram. This year we saw the ASA uphold an
interesting complaint against influencer Emma Louise Connolly in relation to
promotional posts for a brand in which she was an
investor.
- Crypto & NFTs: The ASA has expressed
concern that people are investing in crypto and NFT without fully
understanding what they are, or the risks involved, are. They feel
brands are not using appropriate risk warnings and are instead
trivialising these investments and advertising them in a light
hearted manner. The ASA has decided to issue a number of rulings in
favour of new guidance and we've seen a number upheld
complaints, including this one against Papa John's.
- Data Protection Update: The Information
Commissioner's Office (ICO) had a busy year in 2021, with over
25 rulings and millions in fines. We highly recommend that those
who tend to take a riskier approach to their marketing strategies
revisit their tactic this year. Fines have been issued against
American Express, who were fined £90,000 for sending what
they argued were 'service emails' to users about reward
schemes, but which the ICO decided constituted marketing emails as
they encouraged users to use their Amex card and/or app. The ICO
Adtech investigation was also restarted in January 2021; there
haven't been any major findings or actions but an opinion was released in November that
reiterated the need for consumers to be given a genuine choice when
being engaged with online behavioural advertising.
- Sales Promotions: In 2021, the ASA published
key findings from recent adjudications about online sales
promotions. You must select prize draw winners randomly, ensure you
can independently check the winner has fulfilled the entry
requirements, ensure a bonus entry genuinely increases an
entrant's chance of winning and ensure all significant
conditions are presented to consumers. We saw upheld rulings
against influencer Molly Mae and PrettyLittleThing.com.
- HFSS: From the end of 2022, there will be a
9pm watershed for TV ads for HFSS products, including on-demand
programme services. There will also be a ban on paid-for ads
online. Enforcement will come from the ASA, with Ofcom having
backstop powers to impose fines of up to £250k. Restrictions
on the promotion of HFSS products by volume, price and location are
also due to come into effect from October 2022. These restrictions
will cover promotions such as 'buy one, get one free' or
HFSS products found at the end of aisles in supermarkets or by the
checkouts. You can find the full legislation here. In the meantime, we've seen McDonalds and ITV successfully defend their
media scheduling for an HFSS TV ad (with a little help from
you-know-who).
- Online Harms: The Online Safety Bill aims to
tackle a range of 'harms' on social media platforms,
including those activities that are not unlawful but are
'harmful.' The bill currently excludes paid advertising,
but this may change following a review by the Joint Committee of MPs and Peers
who recommended the inclusion of paid-for advertising, as well as
the suggestion that platforms themselves should conduct risk
assessments of 'reasonably foreseeable threats' from the
harmful impact of algorithms and content. This is something to
watch as it develops in 2022.
- Diversity & Inclusion: In January 2021 we
saw the release of the Governments 'Stay Home. Save Lives'
campaign which portrayed a number of families, with all bar one
showing women in very stereotypical situations, engaging in
cleaning, looking after children etc. The advert was
(unsurprisingly) pulled almost immediately. We also saw upheld ads
against Kai Aviation, Jigsaw and JD Recruitment for all causing serious harm or
offence.
- Covid Related Advertising Issues: In February 2021, we saw an upheld ruling against Ryanair's 'jab and go' advert, with a huge total of 2,370 complaints made to the ASA. The phrase 'jab and go' was found to be misleading and irresponsible. Cignpost Diagnostics' ad advertising their PCR tests suffered an upheld ruling in July. The ASA took a stringent approach and argued the ad was in breach of relatively ambiguous government guidance at the time and therefore found it to be both misleading and socially irresponsible. In December, the ASA received 5,000 complaints regarding the Tesco Christmas ad featuring Santa with a Covid vaccination passport. Despite the huge number of complaints, the ASA announced on Twitter that the advert was humorous and was unlikely to breach the CAP Code, and therefore did not investigate. Arguably a victory for common sense.
Thank you again for all those that joined, and many thanks to my partners Bryony Long, Geraint Lloyd-Taylor and Jo Farmer for joining me as speakers. We will be sending out copies of the slides and a recording of the webinar to all those who registered. Please let me know if you would like to be included.
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