This week we discuss the ASA's rulings on: unhealthily thin models (including how posing may exacerbate the issue); a reminder on identifying the presence of in-game purchases; and factors influencing how partial nudity will be assessed by the ASA.

Responsible advertising and a reminder about unreasonable delay

What was complained about? A product listing via Mango's app for a model in a short sleeve sweater which a complainant challenged on the basis that they believed the model appeared to be unhealthily thin (and therefore was irresponsible).

What was the ruling? Upheld. In regard to the model's appearance, the ASA noted that the model appeared to be unhealthily thin because: (i) “the model’s upper body and hips appeared to be very narrow and there were gaps between her arms and body, accentuating her slender frame”; (ii) “both of the model’s arms, which were visible from above the elbow, were very thin”; and (iii) “her upper arms appeared noticeably thinner above her elbow joints which protruded”. 

In addition, the ASA was concerned that Mango did not respond to the ASA's enquiries, which it considered demonstrated a disregard for the code and was a breach of CAP Code rule 1.7 on unreasonable delay; this breach being found in addition to the breach relating to the issue raised by the complainant.

What are the ramifications? This case provides an interesting comparator to the ruling mid-last year against Warehouse Fashions Online Ltd; a ruling upheld on the same grounds of irresponsible advertising pertaining to a model appearing unhealthily thin. In the earlier case, the retailer was able to argue their model was a size 8 and had a BMI in the “healthy weight” range. However, the ASA pointed to the pose and styling which emphasised the model’s slimness and it was upheld.  In this case, we see a straight on angle shot with less flesh on show than the earlier ruling and no posing to accentuate her thin frame. We do not have a response from the retailer to know the model’s size. Nevertheless, this case shows that even with little flesh on show and no accentuations created by posing and styling, brands can still fall foul of the rules and careful consideration is needed to avoid being found to be irresponsible. 

This case is also a good reminder of the importance of responding to the ASA's enquiries promptly when an ad is being investigated. In our experience this can often lead to cases being resolved informally and whilst in this case, the main complaint was upheld, the rules relating to unreasonable delay can result in a code breach of itself.  

The ASA upholds complaints made against 3 video game publishers for failure to disclose in their ads the presence of in-game purchases and loot boxes the use of loot boxes in video games

What was complained about? The ASA received three complaints from an academic researcher in game regulation who challenged the paid-for social media ads of three video game publishers in each case alleging that the ads were misleading (CAP Code 3.1 and 3.2) because they omitted material information. Namely, failing to disclose that each of the video games in question contained in-game purchases including in the form of random-item purchasing (commonly known as ‘loot boxes’). 

What were the rulings? All three complaints were upheld.  Applying the CAP Guidance which states that “the presence of in-game purchasing, and particularly loot boxes, is material to a consumer’s decision to purchase or download a game, especially for consumers with specific vulnerabilities”.  The ASA considered that each of the ads did not make it clear to consumers, in the ads for the games, that the games and/or webstores for such games included in-game purchases, including loot boxes. The ASA confirmed that this information is material to a consumer’s transactional decision (i.e. to download or purchase the game) and the ads are therefore misleading (breaching CAP 3.1 and 3.2) by omitting this information from the ad.

Like to know more about loot boxes? Navigating the regulatory maze: A global guide to loot boxes in video gaming | DLA Piper

ASA rules on DUSK getting risky with a topless butler 

What was complained about? A TV ad for furniture by DUSK contained a sophisticated woman, sat in a quirky room and enjoying being served tea by her topless male butler (shown with his head out of frame). The woman said that buying a sofa from DUSK had left her with enough money to afford the butler. Forty complainants believed the ad objectified men, and said that they considered the ad to be harmful and offensive. 

What was the ruling? Not upheld. The ASA recognised that some viewers may find the ad distasteful, and that the effect of the butler’s head being out of shot drew viewers’ attention to his bare torso.  Nonetheless, the ASA did not view the ad to be offensive solely because the butler was shirtless, and noted that the butler featured very briefly, and that the ad’s tone was: (i) not sexually suggestive; and (ii) surreal and comical. It concluded that the ad was not irresponsible and so did not breach BCAP Code rules 1.2 (Social responsibility) and 4.2 (Harm and offence).

For our deeper dive into past rulings in this area, see here.