In the last few weeks, we have seen the ASA: (i) issue further warnings against unclear prize promotions (ii) crack down on influencer ads (iii) reminder advertisers of the rules regarding gambling ads and (iv) rule in favour of an age restricted advert. 

Nasty Gal on the ASA's Naughty List 

What was complained about? In December 2023 Nasty Gal's "12 Days of Christmas Giveaways" festive campaign included a prize promotion Instagram post to win a $1000 cash prize. The caption of the post required users to comment below to enter the competition and stated "winner announced 12.10.23". Nasty Gal announced the winner by directly replying to the winning user's comment on the Instagram post. The complainant who didn’t see this 'announcement' challenged whether the promotion had been administered fairly.

What was the ruling? Upheld. The CAP Code requires promoters to publish information indicating that a valid prize award has taken place. Nasty Gal argued that the algorithm would favour their ‘winner announcement comment’ as they were the publisher of the original post, meaning it would be visible close to the top of the post. However it was held that the volume of comments  and the subjective nature of the Instagram algorithm meant that only replying to the winner directly was not a sufficient way of announcing. It was concluded that the promotion had not been conducted fairly and Nasty Gal had breached the CAP Code. 

What are the ramifications? The ruling is a reminder to all businesses of the strict requirements and potential risks when running prize promotions. It is important that businesses clearly announce the winner of such competitions and that the information is clearly available. In particular, in the context of Instagram, the algorithm "could not be relied upon" and access to information should not be subject to it. When announcing winners advertisers can edit the captions of their prize promotion posts to announce the winner, create another post on their platforms or publish information on their website. For further detailed information and guidance on prize promotions around the world take a look at our guide: DLA Piper's Prize Promotions around the world - Insight Into Legal Requirements (dlapiperintelligence.com). 

ASA's Ad-ventures: the trouble with affiliate links

What was complained about? The ASA has recently issued a number of rulings regarding influencers who direct followers on social media to various marketplaces through affiliate links, without highlighting these as advertisements. 

What were the rulings? Upheld. The ASA acknowledged that affiliate marketing practices commonly involve three parties: the brand benefitting from being featured in ads, the affiliate link provider as a kind of ‘middleman’ between the brand and the affiliate marketer, and the  affiliate marketer (aka the influencer) creating the ads. Social media communications whereby an affiliate marketer receives commission are advertisements for the purpose of the CAP Code, and thus need to feature prominent identifiers such as “Ad” before users clicked on the links. Both the brand and the affiliate marketer are responsible under the CAP Code, whether or not an ad has been created solely by an influencer without any input from the business themselves, or whether businesses stipulate in their contracts with the affiliate link providers that ads must be clearly identifiable.

What are the ramifications? The ruling is a reminder to all businesses of the strict requirements in running advertisement campaigns. Businesses commonly engage third party affiliate link providers to deal with the ads processes, and have contracts in place which require compliance with the CAP Code. The affiliate link providers in turn also have contracts requiring compliance with the CAP code by the individual marketers/ influencers.  However, the ASA will nevertheless hold businesses accountable regardless of the lack of oversight of the process. As such, businesses may benefit from directly monitoring marketing communications in which they feature,  or from improving their contracts to disincentivise marketers from falling foul of the Code. 

Bet-ter luck next time!

What was complained about? A series of TikTok ads posted by five online game providers attempted to entice prospective players with promises of a winning streak. Each ad contained casino imagery and in the cases of Dataverse Co Limited and Mobee Co Ltd, voiceovers  inviting avid gamers to "Get the real Vegas experience and become a billionaire overnight" and to “get that big bonus right now” respectively. The complainant challenged whether the ads implied that tangible prizes and money could be won, which would thereby amount to gambling.

What were the rulings? Upheld. The ASA put an end to customers' chances of hitting the jackpot, deciding that the ads did suggest the possibility of real-life wins. Although each game was (i) free to play and (ii) did not result in any "real-world money or tangible prizes", the use of casino imagery and prize language suggested that the games were at least comparable to gambling. Moreover, direct references were made to payouts (which were stated by Zeroo Gravity Games LLC to be "EXTREMELY HIGH") without clear explanation regarding the money's fictionality. 

What are the ramifications? These rulings form part of the ASA's wider crack down on gambling ads. Online game providers should ensure that their choice of language and imagery does not suggest that the game will lead to real prizes or money. Any ads should contain clear and legible disclaimers - for example, while the ASA recognised SpinX Games Ltd's attempt to warn players that "in-game rewards are not real money", however the text was in "small white font, in contrast to the brightly coloured casino machine" and therefore deemed inadequate. 

Challenge 25 – Are you old enough to advertise? 

What was complained about? Social media posts from an alcohol drinks company advertising consumption of their products: (1) by the sea - was challenged on the basis that it "irresponsibly promoted drinking alcohol in an unsafe location"; and (2) at a music festival - on the basis that it "featured people who were, or seemed to be, under 25".   

What was the ruling? (1) Upheld and (2) Not Upheld. Unsurprisingly, the ASA concluded that advertising drinking alcohol in connection with swimming and jumping into the sea promoted socially irresponsible behaviour and therefore breached the CAP Code. More interestingly however, in relation to the second ruling, the ASA held that the evidence provided by the advertiser was sufficient to avoid a breach. There was evidence that the models featured were, in fact, all over 25 years of age and further evidence showed the average age of attendees at the music festival featured in the ad was over 25 years of age.  Together this evidence led to the conclusion that, although youthful, the overall impression given by the advert was that the people drinking were over 25 years of age.

What are the ramifications? This ruling demonstrates the importance of evidence and its role in successfully responding to complaints from the ASA. Ads containing alcohol must not use models or actors who are under the age of 25, or look under 25. Alcohol ads must also not appeal to under 18 by reflecting “youth culture”. However, it is clearly possible to distinguish between “youth culture” and young adult culture if advertisers are able to provide significantly persuasive evidence.