ASA advertising guidance during Covid-19

Posted: June 25, 2020

During the Coronavirus pandemic, there has been an increased regulatory focus on limiting the spread of misinformation surrounding the Covid-19 outbreak, and ensuring that consumers are protected from those who seek to exploit the situation unfairly and to take advantage of consumers.

ASA response

A sudden increase in misleading ads promoting treatments for Covid-19 has forced the Advertising Standards Authority (the regulator responsible for the UK’s advertising self-regulatory system) to respond quickly, tightening regulatory responses to deceptive ads and banning ads that are harmful or misleading.  Brands have had to be more careful than ever to comply with the rules without sacrificing creativity and authenticity.  Examples of targeted ads include promotions of IV drips claiming to boost immunity, and face masks and hand sanitisers marketed by unscrupulous sellers on social media sites.

International response

On 1 April 2020, the International Council for Advertising Standards, the European Advertising Standards Alliance and the equivalent Latin American organisation (CONARED) issued a statement  reminding businesses who promote products and services to advertise responsibly, respecting the existing advertising laws and standards, and in particular, to do so in a way that is sensitive to people’s current increased susceptibility to health claims in the current pandemic.  The statement warned brands to make sure all claims made are fully substantiated and to seek advice when in doubt.

ASA approach

The ASA has aimed to balance their approach, taking into account the difficulties faced by businesses as well as the potential for the public to be misled during this uncertain time.  The ASA’s website explains that “in practice, this means applying a lightness of touch in some areas, and, in other areas, an uncompromising stance on companies or individuals seeking to use advertising to exploit the circumstances for their own gain”.

Ads that have been targeted by the ASA since the Covid-19 outbreak have breached various rules under the CAP Code including:

  • Rule 1.3 – Marketing communications must be prepared with a sense of responsibility to consumers and to society.
  • Rule 3.1 – Marketing communications must not materially mislead or be likely to do so.
  • Rule 4.2 – Marketing communications must not cause fear or distress without justifiable reason.  If it can be justified, the fear or distress should not be excessive.  Marketers must not use a shocking claim or image merely to attract attention.

The ASA has also said that it will take a more measured approach in certain areas, including moving towards advising brands in relation to minor complaints, instead of conducting investigations.

In the usual course of the ASA’s work, certain prioritisation principles are adopted to help guide the allocation of regulatory resources.  Those include considering the following:

  • what harm or detriment has occurred;
  • the likely risk of action versus inaction;
  • the likely impact of our intervention; and
  • what resource would be proportionate to the problem to be tackled.

In light of the pandemic, these principles are likely to see Coronavirus-related adverts receiving the most focus from the regulator.  Where investigations are ongoing, the ASA will allow for time restrictions to take account of difficulties caused to businesses by the lockdown.  This will allow for a more proactive approach to making sure that brands are complying with the rules during the pandemic.  Finally, the ASA has created an online reporting form to help the ASA respond to complaints more rapidly.

CMA enforcement

The Competition & Markets Authority has urged traders not to exploit the current situation by inflating prices or exploiting consumers by making misleading claims about products. In response to the pandemic, the CMA has created a task force that would take enforcement action if there is evidence that firms may have breached competition or consumer protection law and have failed to respond to warnings.  An online service enabling consumers and businesses to report unfair commercial activity related to Covid-19 was also set up in early March to help the CMA prioritise and speed up its response.

Comment

It is unclear how this regulatory approach to advertising and marketing will affect brands in the long term, but brands should certainly take a more careful approach to content during the pandemic.  For example, Cadbury made the decision to pull its Easter-egg ad featuring a grandparent and grandchild hugging, as it did not comply with social distancing policy; and 163 complaints were received by the ASA about KFC’s “finger licking good” slogan, as it encouraged touching of the face, in contrast to advice on preventing the spread of Covid-19.  So brands should at any rate be more careful about marketing content in the foreseeable future, and should keep an eye on any regulatory developments as governmental and social responses to the pandemic shift.

Peter Hopton, Associate, Simkins LLP

Alexandra Vyvyan, Trainee Solicitor, Simkins LLP