This week we dive into the ASA’s application of its “average consumer” test through the lens of a recent ruling which concluded that ads for lab-grown diamonds can be misleading if they are not sufficiently explicit as to the diamond’s origin. 

Diamond ads must be crystal clear - ASA ruling on The Sky Mining Company Ltd

What was complained about? The ASA assessed three ads in different media for Skydiamond, all of which included text stating that the diamonds were “made from the sky”. One ad said that Skydiamond “make diamonds using four natural ingredients” and that Skydiamond’s “technology turns a negative into a positive”. The ad also referred to never needing to “mine the earth again” (although the ASA made no reference to green claims in their review).  An Instagram ad included the hashtags “#skygrowndiamonds #ethicaldiamonds #diamondsmadefromthesky”. On Skydiamond’s website, a FAQs page stated that “each Skydiamond is a perfectly formed real diamond". The ad and terminology used in the ads were challenged for being misleading because the diamonds fact laboratory-created diamonds as opposed to naturally forming diamonds. 

What was the ruling? Upheld. The ASA considered that “whether a gemstone was natural or synthetic would be a key consideration for many consumers and was therefore material information” which had been omitted. The ASA assessed whether the ad was misleading in the context of an “average consumer” i.e. a consumer deemed to be “reasonably well-informed, observant and circumspect”. In evidence provided by the brand: 25% of responders had not heard of diamonds grown in a lab and 42% of the brand’s own followers did not think that “made from the sky” meant “man-made”. The ASA felt that this was indicative of a “significant minority” of consumers who, since the ads didn’t refer to their diamonds as synthetic, would be misled by this omission of material information. The lack of clear references to the diamonds being ‘synthetic’ or ‘lab-grown’ also meant that the ads accentuated ambiguity as to where the diamonds were sourced from – for example, references to the diamonds being “mined from the sky" and use of natural ingredients made it unclear if the diamonds were synthetic or natural. Finally, with regard to the FAQs page, the ASA concluded that it was misleading to call a synthetic diamond a ‘real diamond’. 

What are the ramifications? Skydiamond provided a significant amount of consumer research evidence, however the ASA did not see this research as supportive to their defence. It seems that Skydiamond saw the results of their YouGov survey (which showed that 25% of UK consumers were unaware of synthetic diamonds) as being supportive, whereas the ASA saw the results as demonstrating that a “significant minority” may potentially be misled by Skydiamond’s ads. We’ll dive into what ‘an average consumer’ thinks below, but it also seems that brands should be wary of adducing any evidence which indicates that a sizeable minority may be misled. 

Thinking about the average consumer. This ruling can perhaps be contrasted with a previous ASA decision which found that an ‘average consumer’ would not be misled by the use of the term “fibre” for describing both “part fibre” and “full fibre” broadband networks, as “once educated about the meaning of fibre, participants do not believe they would change their previous purchasing decision”. This distinction arises because it appears that the ASA considers the nature of the product being advertised as key. For broadband networks, the ASA found that the term “fibre” was not a “key differentiator" that pushed customers to purchase a particular broadband package, but rather a “generic buzzword”. Whilst with broadband networks customers value the end product received (for example, the speed of internet), a diamond’s value is, arguably, in its status as a ‘veblen good’. Therefore, because of marketing and business strategies keeping demand (and prices high), diamonds have a perceived rarity attached to them and a customer may associate value in how a diamond is sourced and may likely change their purchasing decision based on whether a diamond was synthetically made or naturally sourced. The ASA have not given much shrift to the ethical benefits of synthetic diamonds making them more appealing (possibly looking at the cheaper price of lab made diamonds as a clear indicator). This case is an interesting addition to current public debate about whether synthetic products should be advertised using their more well-known labels. The ASA generally accepts descriptors such as “meat-free chicken pieces” on the basis that although the pieces are not in fact chicken, consumers will understand from the qualifier that the claim refers to a meat-free product. Here, it seems that using the word diamond is acceptable, as long as claims are qualified at the outset with the word “synthetic”, or similar. 

It is worth noting that the High Court previously conducted a judicial review of the ASA's use of the “average consumer” test in the Fibre decision, and confirmed that when applying the “average consumer” test, the reasonably well-informed consumer need not be well-informed about the specific features of the product/ service, but just the product/ service more generally. Applying that to the SkyDiamond’s case, the average consumer does not need to understand the difference between natural and synthetic diamonds and therefore includes the above-referenced “significant minority” of UK consumers who had not heard of synthetic diamonds.