This week we discuss: pant posing problems; how you can BPerfect with #ad; and electric charging confusion.

BPerfect in following the rules on #ad

What was complained about? A TikTok video on an influencer's (Stephanie Vavron's) account featured her holding up a BPerfect bag where she said, “Get ready with me using my BPerfect collab …". The complainant (who may or may not have had it in for Ms Vavron) challenged whether the ad was obviously identifiable as a marketing communication and whether its commercial intent was clear. 

What was the ruling? Upheld: Even though some followers knew of the collaboration and the influencer had said she had a “collab” with BPerfect in the video, it was still not clear to TikTok users that the video concerned a marketing communication and that the influencer was promoting her own product with BPerfect. The influencer had confirmed that she did not receive any profits from the sale of the collaboration with BPerfect, and the only exception was affiliate links, labelled on separate videos.

What are the ramifications? The ASA have again made clear that even where a promotion is not specifically planned or paid for, if there is a commercial relationship between the brand and the influencer: this must be made sufficiently clear to viewers - “collab” was not enough to identify it as a marketing communication. See our influencer marketing guide for further information on the rules for ads for influencers. 

Outdoor Media Advertising – revisiting the line between promotion and offence. 

What was complained about? Three poster ads for women's underwear were in the ASA's cross hairs. The first poster featured a model wearing a denim shirt that was drawn halfway around her body, leaving the side of her breast and bottom exposed. Appearing alongside the first poster was a second and third poster featuring a widely known model and media personality topless, with her arms folded across her chest in one poster and wearing underwear and holding a pair of jeans part-way up her thighs in the other. The complainants challenged whether the ads were offensive and irresponsible because they objectified women and inappropriate for display in an untargeted medium.

What was the Ruling? Not upheld/Upheld: The ASA assessed the content of each ad individually and accepted that all three poster ads contained imagery of women that were sexualised to a degree. However, in relation to all three of the poster ads, the ASA concluded that the images were not sexually explicit as the ads presented women who appeared relaxed, confident and in control. As a result, the ads were unlikely to be seen as irresponsible or cause serious or widespread offence. The ASA did note however, that the combination of the model’s seductive gaze, pouting lips and positioning of the shirt in the first ad was not suitable for display in an untargeted medium. On that point, ad (a) breached CAP Code rule 1.3 (Responsible advertising).

What are the Ramifications? Sexualised imagery is likely to be considered by the ASA as having the potential to cause serious or widespread offence (see DLA Piper's previous post here). In addition to further clarification on how less sexually suggestive poses can be deemed acceptable, the ruling is particularly interesting in relation to the ASA's response. The ASA partially rowed back its ruling in the face of public pressure which, variously, claimed the ASA was sexist (similar advertisements featuring men were not found to be in breach - although the ASA has not yet had a chance to investigate the most allegedly lascivious of these), racist (the model in question is a person of colour and another ad in the series which was held to be acceptable is white) and did not respect the model's claims to empowerment (the ASA previously held that she was treated as a "stereotypical sexual object", but now accepted that “the ad presented [the model] as confident and in control and, therefore, that she had not been objectified”. The ASA explained its revised decision on the basis that it was concerned that its "rationale for banning the ad was substantially flawed”. This revised ruling demonstrates that the ASA may take a more nuanced view of sexualised images in the future and not presuppose that a woman in similar states of provocative undress unrelated to a product will be representative of objectification (although they should be appropriately targeted).

Do you know what WLTP means?

What was complained about? An advert for an electric car featured on-screen text stating: 

1. “Charge in approx. 31 minutes” as small footnote text appeared “10-80%, 350kWh charger (limited in UK: motorways only, not available in NI, most of Sco/Wal). Test data for comparison – actual times vary (depending on e.g. spec, battery/charger condition & temp.). Longer in cold weather”; followed by
2. "330 miles maximum range” while small footnote text stated, “Max range up to 330 miles (Official WLTP range for the [car]). May not reflect real life driving results. Model shown is not UK specification and features optional equipment”. The car dashboard was seen, where the ‘Range’ was shown to be 330 miles; and
3. before the ad ended, “The new, fully electric models” was shown. 

The complainant (possibly a rival car manufacturer - always be wary of competitors!) challenged whether the ad's claims “Charge in approx. 31 minutes” and “330 miles maximum range” were misleading.

What was the Ruling? Upheld: Despite qualifying text (advertisers are always required to substantiate their claims), the ASA felt that ordinary consumers would:

• see the sequential claims in the main (non footnote) text (“Charge in approx. 31 minutes” and “330 miles maximum range”) as being read together, so that a 31 minute charge would get you a 330 mile maximum range, when the two claims were based on different and conflicting data which would not produce such result. The ASA felt that this was reinforced by the on-screen appearance of 330 miles on the car's dashboard;
• not understand what WLTP stood for (Worldwide Harmonised Light Vehicle Test Procedure - and well done if you did know that!) and so would not understand that the 330mile range in WLTP tests referred to factory testing; and
• not clock that the claims were limited to a specific model when the ad was for the whole range.

What are the Ramifications? The advertisement was cleared by Clearcast, so advertisers should remember that while a great service, Clearcast cannot guarantee that the ASA will not adversely rule against an ad. This is particularly true with claims relating to ‘green washing’ and overstating the effectiveness of green products, which seems to be a particular area of focus for the regulator. In addition, while substantiating claims is always to be encouraged, advertisers should avoid technical jargon/acronyms and be aware that presenting two claims after each other when such claims are based on different and incompatible test data will not be deemed sufficient substantiation.