This week we see the ASA: (i) remind businesses to be cautious around claims made which relate to a business before it was taken in to administration; (ii) explain when a video game ad displaying a violent image is permitted; and (iii) highlight the importance of statements in ads not contradicting terms and conditions. 

Can a business that has gone into administration refer to its previous trading history in ads? 

What was complained about? Ads on two social media accounts and the website of an online bathroom retailer included the following statements: “since we were founded in 2001”, “with over 140,000 reviews, our customers on independent review site Trustpilot rate us ‘Excellent” and "2M+ customers served”. The complainant challenged whether these statements were misleading because the retailer had entered into administration on 29 September 2023, and was purchased by another company through a pre-pack purchase.

What was the ruling? Upheld. The ASA considered that the statements in the ads would be interpreted by consumers as meaning that the brand had “over 22 years of uninterrupted trading from then up until the present day”, implying it would fulfil orders and secure payments. The references to excellent ratings and reviews implied longevity and stability of the brand. However, the ASA was not provided evidence as to whether customer contracts prior to the administration had been satisfied and the website noted that orders made prior to the administration could not be fulfilled. In addition, the online bathroom retailer was not sold as a ‘going concern’ but rather certain assets including its Intellectual Property rights and goodwill were instead purchased. This meant that the transaction did not fall within the CAP guidance that permits the new company (the buyer) to adopt the brand's heritage and refer to the brand's trading history.

What are the ramifications? The ASA have made clear that ads referring to the trading history of a business must reflect the reality of the business' position. An ad implying longevity and uninterrupted trade is likely to be viewed as misleading where: (i) there has been an administration and pre-pack sale (rather than sale as a ‘going concern’) and (ii) orders prior to the administration were not fulfilled. 

Influencers - can consumers tell when an ad is #myownbrand?

What was complained about? Two Instagram reels were jointly posted by the Instagram accounts of influencer Grace Beverley and TALA (her own clothing brand) featuring a caption stating “with a waitlist as long as the list of things this coat can do, she’s finally back after a year. This Thursday, 12pm on @wearetala. Ps. Watch till the end for a chance to win a puffer”. During the video Grace Beverly went on to promote the jacket, ending it with “I’m going to give away three of the short line ones, one in each colour, just tell me how much you want it.” The various complainants challenged whether the posts were obviously identifiable as marketing communications. 

What was the ruling? Upheld. The CAP Code states that marketing communications must be obviously identifiable as advertisements, and that their commercial intent must be clarified if it is not obvious from the context. While the ASA accepted that whilst the ads suggested that Grace Beverly and TALA had a commercial connection, the fact that the posts were made jointly by Ms Beverly and TALA as co-publishers was not sufficient to make the posts obviously identifiable as adverts. 

What are the ramifications? The ASA once again clarified that vague contextual references to the commercial intent behind ads will not suffice to make any publication obviously identifiable as an ad. Instead, publications on social media should ensure that this intention is made clear through the use of clearly and prominently displayed identifiers such as the use of "#ad" (or the influencer favourite '#admyownbrand') within the post.

Guns and bones - violent imagery and targeting in video games

What was complained about? An ad for the video game seen on an online store featured an image of a soldier wearing a skull mask and holding a gun. The complainant, whose child saw the advert, challenged whether the ad had been irresponsibly targeted. 

What was the ruling? Not upheld. While the ASA agreed with the complainant that the ad was displayed in untargeted medium, they noted that parental control settings, once set up, would not permit the child from viewing any further content about the video game other than the game's cover. Additionally, the ad itself was not considered to be particularly graphic. While it featured skull imagery and a gun, the ad contained no images of violence, making it suitable for an untargeted medium. The ad was therefore not considered to have been irresponsibly targeted.

What are the ramifications? Video games ads clearly identified as being for users aged 18+ will be considered to be suitable for an untargeted audience as long as they do not feature imagery that is particularly graphic or violent. As the ASA has made clear in previous rulings, this is especially so if such ads are published on platforms that feature parental control options, hence limiting the accessibility of the ads content to under 18s. 

The ASA cracks down on hidden fees

What was complained about? A website for Pink Storage headed “YOUR QUOTE” included text that stated “Get 50% off your storage for up to 8 weeks” and included quotes for a 160 square foot storage unit. There was qualifying text further down the page that stated “The prices you see above are the prices you pay, No Hidden Fees”. The complainant challenged the ad for being misleading after they were informed that the weekly price of their storage unit had been increased.

What was the ruling? Upheld. The ASA noted that consumers would understand the claim “no hidden fees” to mean that the initial quoted price would be the price  they would pay for the time they used the storage unit. This was the case despite Pink Storage's terms and conditions stating that they may alter their fees at any time by giving the consumer written notice. Since this was not explained in the ad itself , the ASA found it to be misleading. 

What are the ramifications? This ruling stands as another warning to advertisers to ensure that terms and conditions are insufficient to counter false impressions made in their adverts. As such, it is prudent for advertisers to ensure that any claims are properly caveated in the ad itself to ensure that consumers are not misled.