Over the last month we saw the ASA: (i) reinforce responsible advertising in relation to sun protection, (ii) remind advertisers of the need to be open about the terms of promotional offers, and (iii) ride the CurrencyWave towards greater transparency over introducer-broker ads.

SPF is no joke, says ASA 

What was complained about? An advert from a cosmetics brand promoting a skincare product which claimed it was "clinically proven to reverse visible signs of sun damage" with on-screen text encouraging retrospective corrective action was challenged by several complainants arguing that it condoned not using SPF (and “reversing” the damage later) and was irresponsible and harmful, particularly due to the risks associated with skin cancer.

What was the ruling? Upheld. Despite Clearcasts' support of the advert and its purported efforts to imply that not wearing SPF was historic fact and something that shouldn't be encouraged today, the ASA concluded that the light-hearted and flippant tone used and the claims that visible signs of sun damage could be reversed were ultimately irresponsible and harmful. 

What are the ramifications? This ruling continues the ASA's recent efforts to protect consumers and uphold advertisers' social responsibility. This example also further highlights the risks associated with making any claims with medical or healthcare implications and the heightened risk of harm in this area. Finally, we note that the advert's small on-screen disclaimer that SPF should be used was also insufficient to rebut the complaint. The ASA require advertisers to be clear and unambiguous, ensuring they are not (whether intentionally or otherwise) promoting harmful messaging. 

Bargain blunder backfires on Eurostar 

What was complained about? Earlier this year, Eurostar International Limited posted a series of ads that promoted discounted fare prices: while a paid for Instagram post encouraged prospective customers to “Book now – London > Amsterdam from £39 each way* […] *T&Cs apply”, a post on Eurostar's Facebook page offered the same savings for journeys to Brussels. The complainant queried whether the ads were misleading as (i) only a few tickets were available for £39 and (ii) the ads did not clearly explain that the discounted tickets were only applicable to certain travel dates.

What was the ruling? Upheld. In respect of issue (i), the ASA felt that the phrasing of the ads suggested significant quantities of tickets priced at £39. As a result, customers would likely think that they had a "reasonable chance of obtaining a seat " at this price. Despite Eurostar's provision of some historical data regarding the number of tickets sold to the ASA, the evidence did not confirm the amount of £39 tickets available for purchase at the time the ads were posted. The ads were therefore found to be "exaggerated" and ultimately, misleading. With regards to issue (ii), the ASA held that the ads failed to include adequate qualifications regarding the travel dates that the offer applied to. To obtain such information, the consumer had to first access the landing page, scroll to the bottom of the page and then click on an arrow next to the terms and conditions. In the ASA's view, the absence of the qualification in the ad itself amounted to a breach of the CAP code. 

What are the ramifications? The ASA has reminded advertisers to ensure that promotions and discounts are not exaggerated or overstated. Where offers involve prices "from", such prices should be readily available across a range of dates, times and/or products and advertisers should be prepared to provide evidence that this is the case. Moreover, if a qualification is required - for example, in respect of the offer's restrictions - such information must be immediately visible to the consumer and ideally included in the ad itself. The ASA is likely to find an ad misleading where consumers would need to take active steps to discover material information.

CurrencyWave muddies the waters

What was complained about? CurrencyWave's website advertised foreign currency payment services. Near the top of the page, one of their ads included the wording ‘Powered by: CurrencyCloud A Visa Solution’. CurrencyWave also displayed an animated video stating that it offers direct access to the wholesale currency market. The video also included on-screen text stating that payments would be made through a fully FCA authorised platform. CurrencyWave used exchange rates from 2022 to highlight lower costs in making international transfers. Small text at the bottom of the page mentioned that services for CurrencyWave were provided by The Currency Cloud Limited which was authorised by the FCA. The ASA's Transparency Task Force challenged whether the ad misled consumers to believe that CurrencyWave (i) provided the payment services, (ii) were regulated by the FCA, (iii) could obtain unsubstantiated cost differences compared to other providers. 

What was the ruling? Upheld. While the ASA acknowledged that CurrencyWave acted as an introducer for CurrencyCloud (which was in fact handling all exchange payments and financial transactions), it stated that consumers should have been aware that their contract for financial services was with CurrencyCloud, not CurrencyWave. The ASA considered that CurrencyWave repeatedly associated themselves with the services provided. Notable mentions were (amogst others) the headline ‘CurrencyWave for Individuals’, and the statement that ‘We can offer you a simple way of transferring money’. The ASA concluded that such wording gave the impression that CurrencyWave was facilitating the transactions. Although CurrencyWave stated that they were ‘powered by' CurrencyCloud, this was too ambiguous to reveal the nature of their relationship. Similarly, the small text at the bottom of the page indicating that payments were provided by CurrencyCloud was likely to be overlooked and insufficient to override the impressions created. The ASA also concluded that in the context set out by the advertisements, claims referencing FCA authorisation would be understood to refer to CurrencyWave, not CurrencyCloud, thus misleadingly implying that CurrencyWave was FCA authorised. Lastly, the ASA considered that cost comparisons to other platforms were misleading and unsubstantiated as CurrencyWave used exchange rates from 2022, more than 12 months prior to the date of the ads being shown. 

What are the ramifications? Suggesting that your business is providing services of another business, particularly in a regulated industry is likely to be considered misleading. Here, it is clear that introducer-broker businesses should distinguish their services from those of their partners in a prominent manner. One way to avoid associations would be to abstain from using words such as ‘we’ in relation to the provision of the services. Similarly, the greater the ambiguity for the average consumers with respect to the provider of the services, the greater the effort required to override it. Businesses ought to include clear and prominent disclaimers regarding the introducer-provider commercial relationship, and ensure these are placed in areas not easily overlooked by consumers; material information should not be reserved for small, far-down website footers. Lastly, businesses comparing themselves to competitors should use information that is up-to-date and is not older than 12 months.