The Advertising Standards Authority (ASA) is responsible for investigating complaints made by the public about misleading advertising, as well as issuing guidance to consumers and businesses and monitoring compliance with its guidelines.
Falling foul of the ASA’s advertising codes and other consumer law can result in your ads being removed, fines being issued against you and/or your influencer (if you used one), and negative publicity. You might also be required to provide official undertakings to comply with the rules in future. Other consequences could include termination of social media accounts, disqualification from receiving industry awards, and in extreme cases, even imprisonment (although this is very rare).
Our latest newsflash highlights two recent complaints that were upheld by the ASA last week, and provides guidance on how to avoid your business falling foul of the ASA in similar circumstances.
1. Express ‘next-day’ delivery promised by Gymshark
What happened?
The clothing retailer Gymshark provided various delivery options on their website, including promising ‘EVRI Express
Delivery – £4.50… Free Delivery available for orders above £65…Order by 9pm Mon-Fri for next day delivery, 7pm Saturday or Sunday for next day delivery’.
A member of the public complained that they didn’t receive their items the next day, despite ordering within the required timeframe. Gymshark advised them that orders could take one to two days to be shipped, which was calculated from the date shipped (not the day ordered). Gymshark pointed out that their terms and conditions, FAQs and social media included the caveats that the delivery timeframe started once the order had been shipped, and that next day delivery wasn’t available to certain postcodes.
What did the ASA decide?
The ASA agreed with the member of the public that the ad was misleading, as the information contained in the fine print and FAQs wasn’t enough to override the main wording of the ad. The ASA told Gymshark not to use the advertisement again in its current form.
How can you avoid this happening to your business?
Don’t hide terms in the fine print
The ASA will look at the context and overall impression of your advertising, and its effect on consumers, when determining whether it is misleading. Even if you didn’t intend to mislead customers, the ASA may find that the overall effect was misleading. You need to make sure your ads include all key information in a clear way.
If any exclusions apply to your promotion or sale, make these clear in your headline claim, not in the fine print. For example, if you simply claim ‘Free UK delivery’ you must be able to deliver the product to all postcodes in the UK with no minimum spend.
If space or time for your ad is very limited, you should include as much information about significant conditions as possible in the main ad. You should also include an easily accessible link to the additional terms and conditions. Space on your own email marketing or website is not considered limited by the ASA, so make sure all significant terms are in the original email or on the same page of the website as your ad.
Make delivery fees and conditions clear
Ensure that you always make delivery fees and terms clear to customers. If you don’t allow a customer to collect the item themselves, you need to include delivery charges in the price of the product or, if you can’t calculate delivery in advance, make it clear how delivery will be calculated. Your delivery charges should be fair and reasonable.
See our Q&A on advertising, labelling and pricing for further guidance, and our terms and conditions templates to ensure you cover the legally required information in your T&Cs.
2. Influencer for Vodafone didn’t make her ads clear
What happened?
Influencer Alexandra Felstead posted various images and stories from the Vodafone lounge and living walls at Wimbledon, tagging Vodafone in her posts as well as featuring the Vodafone logo and commenting “Thank you @Vodafone UK for being such incredible hosts #feel the connection.”
The ASA received a complaint that these posts were not identifiable as marketing communications. In response, Vodafone said they didn’t have a contract in place with Ms Felstead, but agreed that the free Wimbledon tickets and access to their hospitality suite could be considered payment. However, they also argued that they did not have editorial control over Ms Felstead’s posts and therefore the posts weren’t advertising under the CAP Code.
What did the ASA decide?
The ASA upheld the complaint, noting that Vodafone’s Head of Social Media asked Ms Felstead to share her Wimbledon experience by “uploading stories and photos throughout the day, tagging @VodafoneUK and using the hashtag #FeelTheConnection on Instagram”. The ASA decided that this instruction showed an expectation by Vodafone that their influencer would promote their brand, and therefore the posts should have been labelled as an ad.
The ASA said that the ad and posts can’t appear again in their current form, and that Vodafone and Alexandra Felstead must ensure that their future ads are obviously identifiable as marketing communications.
How can you avoid this happening to your business?
If you’re planning to work with an influencer (any person who promotes products or services on their own social media account), you both need to comply with advertising and consumer law. The key message from the ASA is that influencers must make it clear to the public when they are advertising products (whether they have been paid cash, given free products or received other types of benefits). This can be done by using appropriate hashtags and labels such as #ad, #advertisement, #advert, #advertising, and Advertisement Feature. Social media platforms also have certain tags you can use to show influencer relationships (such as ‘Paid partnership with’ on Instagram).
Hashtags and other labels need to be clearly visible before a potential customer clicks on or engages with the content. For example, labels should appear at the beginning of a post (unless the post is very short in which case they may be at the end). Your influencer should not bury the labels within or at the end of a list of hashtags or directly after the name of a brand (eg #sparqalegalad), or put the label under the fold (ie the ‘See more’ tab).
You can find more guidance about working with influencers in our Q&A on marketing methods.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.