In the last few weeks, we have seen the ASA: (i) target mid-contract price increases, (ii) clamp down on affiliate marketing practices and (iii) remind business of their social responsibility with regard to both drink driving and harmful gender stereotypes.  

Dialing Up the Fine Print: ASA Rings In Telecom Transparency

What was complained about? Several ASA rulings last week targeted the presentation of mid-contract price increases within the telecommunications industry. Various companies had advertised a headline of their offering, specifying different starting prices. The headlines would also state immediately below that the prices would increase after a specified date, by a specified amount. Scrolling down or by accessing another page, consumers would end up seeing a list of actual deals displaying different data plans and their respective costs. The deals would specify that the costs would increase annually after a particular date, with an asterisk leading to the bottom of the page for further explanation. Down the page, the companies would explain the details and nature of the price increases. The ASA considered whether this presentation was misleading. 

What was the ruling? Upheld. As price increases are material information that consumers need in order to make an informed transactional decision, these need to be presented clearly and prominently. While all companies had specifically displayed the nature, timing and detail of the price increases at different points of the customer journey (both during offer as well as after) the ASA nevertheless found that the listings themselves should have included that information. As the important information was mostly at the bottom of the page, the ASA found that consumers could easily overlook it. 

What are the ramifications? This ruling highlights the importance of including material information no more than one ‘step’ below the price claim in order to give adequate weight to it. In practical terms, the ASA refers advertisers to a ‘Qualifying Ladder’ which should help determine whether information should be in the headline, sub-heading, body copy or footnotes. This analysis will help businesses align with the CAP code while also enabling them to justify their reasoning in the event of a complaint. 

Affiliate Link Marketing Chain Under Pressure From the ASA

What was complained about? An Influencer's Instagram story contained an affiliate link to infant formula on Sainsbury's website. The ASA considered whether this was obviously identifiable as a marketing communication and whether this type of marketing prohibited. 

What was the ruling? Upheld. As the affiliate link to the product generated commission for the influencer based on click-throughs, it should have obviously been identified as a marketing communication. While the Instagram story included ‘Aff’ in the top left-hand corner, this was obstructed by other text and not sufficiently clear to signal commercial intent. The ASA repeated their longstanding advice that ‘Ad’ is the more appropriate label for advertisements. Furthermore, since the CAP code prohibits stage one infant formula being advertised to the general public, this ad clearly fell foul of the code.

What are the ramifications? As we highlighted in our last post on the ASA's affiliate marketing saga, businesses should actively monitor the marketing communications of their affiliate partners. While the ASA acknowledges that multiple parties form part of the affiliate marketing chain, and that ultimately the advertisers do not actively control or consent to influencer created ads for their products, the ASA will hold both the influencer and the advertiser responsible. This is despite the fact that, as Sainsbury's had done here, advertisers commonly include terms and conditions requiring compliance with the CAP Code when engaging with an affiliate marketing chain. To disincentivise breaches of the Code and to bolster the comfort offered by such contracts, advertisers could consider: (i) contractual provisions (e.g. claw-backs of commission) to incentivise conformity with advertising regulations; and (ii) including warranties and representations from their marketing partners that they have adopted and will maintain practical screening requirements and policies to monitor and educate influencers using their services.

The ASA cracks down on drink driving 

What was complained about? An advert promoting single malt whisky in partnership with a luxury car manufacturer was challenged on the basis that the advert linked alcohol and driving and was therefore irresponsible. The advert featured a range of clips of a couple driving around Scottish scenery together with images of a whisky distillery and glasses of the product being poured for the couple.

What was the ruling? Upheld. Whilst the ASA acknowledged that the actors were never seen actually drinking the whisky and the scenes depicted the couple at different times and places; ultimately, there was not a clear separation between the couple driving and the whisky being poured and appraised. The advert created a link between alcohol and driving and as a result was clearly in breach of the Code.

What are the ramifications? This ruling demonstrates the relatively low threshold in respect of the restrictions on advertising alcohol and driving. Any connection, even if indirect or discreet, will likely give rise to a risk of non-compliance as the ASA continue to reinforce the importance of advertisers' social responsibility. 

Dating (app) disaster: The ASA ruling against harmful gender stereotypes

What was complained about? An advert for a dating app "where successful men go to date beautiful women" was challenged on the basis it was sexist and perpetuated negative gender stereotypes. The advert featured a grey-haired man in a business suit sitting on a beach being chased by multiple younger women in bikinis.

What was the ruling? Upheld. The CAP Code states that advertisements must not include gender stereotypes that were likely to cause harm, or serious or widespread offence. The ASA concluded that the advert implied a disparity in status and seriousness between men and women, and perpetuated stereotypes that men held value due to intelligence and business success, whereas women held value as objects, related to their physical appearance and only wanted to date men with wealth and status; therefore, it was a clear breach of the Code.  

What are the ramifications? This is another reminder to advertisers of the need to be conscious of social responsibility, particularly when presenting relationships between men and women. Whilst gender roles are not automatically negative, emphasising misogynistic stereotypes and perpetuating gender imbalances will not be tolerated. For further reading on sexualised imagery in advertising see our helpful flowchart here.