Clifford Chance

Just Eat must take care not to target HFSS products at those with a youthful palate

The ASA has upheld a complaint against Just Eat for inappropriately targeting HFSS products (high in fat, salt, or sugar) at children under 16. The complaint challenged a Facebook ad by Just Eat which promoted delivery of McDonalds products via its platform, arguing that it inappropriately directed HFSS products at children through the context in which the ad appeared.

The point of dispute was not the content of the ad, but instead how the ad had been targeted. Just Eat argued that it had targeted individuals aged 18 and over using Meta’s age targeting tools and provided data from Facebook showing the ad was not served to users registered as under 18 on the platform.

However, the CAP Guidance on age-restricted ads online suggests using interest and behaviour-based targeting techniques, in addition to age-based targeting, to target ads responsibly and limit a certain age group's exposure.

The ASA ruled that targeting solely based on age was unlikely to satisfy CAP requirements as younger users may misreport / misrepresent their age or multiple people may share one device. Since interest-based targeting was available to Just Eat and was not used, the ASA ruled that Just Eat had not taken sufficient care to ensure the ad was not directed at people under 16 and breached the CAP Code.

Key takeaway:

• Advertisers should consider multiple targeting parameters for age-restricted ads.

See Also: the ASA's recent guidance on HFSS media placement.

By Hayley Kwan, Associate in the Intellectual Property team in London.

Transparency shake-up for investors and directors featured in ads: ASA challenges Huel and Zoe ads

The ASA upheld complaints against ads by Huel and Zoe. The ads featured endorsements from Steven Bartlett but failed to disclose his commercial interests as either director or investor in the two companies.

Huel ran Facebook ads promoting their Daily Greens drink, with Mr Bartlett endorsing the product, but without mentioning his status as a director of the company. Similarly, Zoe ran a Facebook ad with Mr Bartlett endorsing its product, with no mention of his status as an investor in the company. Both companies contended that consumers would understand there was a commercial relationship between Mr Bartlett and the brands (including the respective products), and that the ads were clearly identifiable as such. The ASA, however, upheld the complaints, noting that Mr Bartlett's directorship and investment in the companies were material information that was necessary for consumers to make informed decisions.

The CAP Code stipulates that marketing communications must not mislead consumers by omitting material information. The ASA concluded that the omission of Mr Bartlett's commercial interests in both ads was misleading, necessitating amendments to these ads and clearer disclosure in future ads. This follows a similar ruling against Grace Beverly, founder and owner of the fashion brand TALA.

Key takeaway:

• Ads featuring popular personalities must clearly disclose any commercial or financial interests those individuals have in a brand, beyond their participating in the marketing campaign, including roles as investors or directors.

By Laura Hartley, Associate in the Intellectual Property team in London.

The Only Way is ASA: Gemma Collins ad for depression treatment banned

The ASA upheld a complaint made against British media personality Gemma Collins for an ad posted on her Instagram account which promoted a device for treating depression.

Ms Collins posted a video on social media accompanied by a text caption advertising a device produced by Flow Neuroscience (Flow). In the video, Ms Collins claimed that the Flow device was a new and medically approved device used for the treatment of depression, and an alternative option to therapy or antidepressants. The accompanying caption underneath the video contained further claims but noted that a person should not stop taking existing prescribed medication before consulting their general practitioner (GP).

A complaint was made on  the grounds that the ad discouraged consumers from undertaking essential treatment for a medical condition for which advice from a medical professional should be obtained.

Flow's response noted that:

• the ad represented Ms Collins' own experience, which is common in the influencer industry, and they had no control over the ad; and
• the ad displayed a clear message for viewers to first speak to their GP before trying Flow or changing their medication, and at no point did Ms Collins recommend that viewers should not consult a medical professional.

Ms Collins supported Flow's comments, explaining that the ad clearly stated, "consult your GP without fail", and that the ad contained only "personal observations" and did not discourage any essential medical treatment.

The CAP Code states that marketers must not discourage essential medical treatment for conditions for which medical supervision from a qualified medical professional should be sought. A non-exhaustive list of such conditions, which includes depression, can be found in the ASA guidance on health, beauty, slimming & medical conditions. The ASA considered that the ad implied people who began using the device could stop their medication and without medical supervision. The text in the caption under the video that indicated a GP should be consulted was considered by the ASA to be insufficient in fulfilling the Code requirement. The ASA did not formally consider or rule on whether the evidence did or did not substantiate the effectiveness of the device, but, according to Flow's website, the device is a Class IIa medical device with CE marking and is has been certified by the British Standards Institution (BSI), amongst others.

Key takeaways:

• The ASA held the ad discouraged essential medical treatment for a condition for which medical supervision should be sought, despite a statement in the text caption underneath the video which stated a GP should be consulted, and therefore breached the Code.
• As a general point, advertisers should carefully consider what language they use in any advertising of medical devices and that it is compliant with both ASA guidance and any applicable regulations, including MHRA guidance.

By Molly Margiotta, Associate in the Intellectual Property team in London

Virgin Atlantic ad grounded by misleading sustainability claims ruling

The ASA upheld a complaint against an ad by Virgin Atlantic Airways for making misleading claims regarding their use of "100% sustainable aviation fuel".

A radio ad by Virgin Atlantic claimed that its upcoming Flight 100 from London to New York would become "the world's first commercial airline to fly transatlantic on 100% sustainable aviation fuel". Virgin Atlantic claimed the ad's wording would be understood by a majority (68%) of surveyed consumers to be a reference to fuel from sustainable sources which reduced, but did not completely eliminate, greenhouse gas emissions. Virgin Atlantic further argued that any information omitted from the ad did not constitute 'material' information, as the ad was showcasing a one-off research flight and was not advertising Virgin Atlantic's products or services.

The decision looked in detail at how the term "100% sustainable aviation fuel" would be interpreted. It noted that the fuel was entirely composed of non-fossil fuel sources (i.e. meaning that 100% of the fuel came from 'sustainable' sources). Virgin Atlantic argued the consumers would understand that such a fuel would not eliminate greenhouse gas emissions entirely, and that it was not claimed to be "100% sustainable".

The ASA acknowledged that the term "sustainable aviation fuel" was widely used in the aviation industry to refer to fuels with reduced environmental impacts but held that many consumers were unlikely to be aware to the extent to which these fuels still had negative environmental impacts. The ASA also cited the results from a survey commission by Virgin Atlantic, where 11% of respondents had understood that sustainable aviation fuel had zero environmental impact. Additionally, in response to a further 'true/false' question, roughly 30% of respondents believed a statement that sustainable aviation fuel had "zero impact on the environment" was true.

Whilst the ASA also acknowledged that the fuel mix for Flight 100 was calculated to have delivered savings of 64% in greenhouse gas emissions, this was not stated in the ad. The omission of this information would have led a significant proportion of listeners to overestimate the environmental benefits of the fuel and was therefore held to be "material".

Accordingly, Virgin Atlantic was found to be in breach of the BCAP Code's rules on misleading advertising and environmental claims and was instructed to ensure future ads referring to "sustainable aviation fuel" included qualifying information about the fuel's environmental impact.

Key takeaway:

• If a product or service has certain environmental benefits, but also significant negative impacts, advertisers should ensure that such benefits and impacts are clearly communicated in order to avoid giving a misleading impression of its overall environmental impact.

By Helene Tao, Trainee Solicitor in the Intellectual Property team in London

The ASA presses pause on NOW TV ad

The ASA upheld a complaint against Sky UK Ltd (trading as NOW) in relation to an ad for an 'Entertainment 6 Month Saver' package, which included access to 'Boost' - a paid-for add-on service that provides ad-free viewing.

The complaint asserted that the ad was misleading as it did not make clear that, without the 'Boost' add-on, NOW TV membership plans included ads.

NOW accepted that the ad did not state that other membership plans would feature ads but argued that the ad was not misleading because:

• the presence of ads was not a main characteristic of the service and therefore was not "material" information;
• omitting the presence of ads as part of a basic membership plan was unlikely to cause an average consumer to make a different transactional decision; and
• an average consumer would reasonably expect basic membership plans to include ads as this was 'commonplace' and 'well established.'

The ASA acknowledged that ads are increasingly becoming a feature of streaming services but noted that this was a relatively recent change, with streaming services traditionally being ad-free. The ASA considered that the presence (or not) of ads was a main characteristic of the service and would be considered by consumers in their transactional decisions, and therefore was "material" information.

Accordingly, the ASA held that the ad omitted material information that the basic plans included ads and was not sufficiently clear that the 'Boost' add-on was needed for ad-free viewing.

Key takeaway:

• Service providers with different membership tiers should make it clear if paid plans still include ads as this is considered "material" information and may impact consumer decision making.

By Jessie Crabtree, Trainee Solicitor in the Intellectual Property team in London

The ASA clears Hendricks Gin ad of youth appeal concerns

The ASA did not uphold a complaint against an ad for Hendricks Gin, which alleged that the ad was likely to appeal to under 18s. The ad depicted a man in Victorian-style clothing travelling in an underwater vehicle and encountering a winged seahorse, also dressed in Victorian attire. The man followed the seahorse to a vibrant, fantastical setting where he joined animated characters in dancing.

Hendricks Gin defended the ad, arguing that its Victorian surrealism style was inherently adult and old-fashioned. They further asserted that the ad’s monochrome setting, Victorian clothing, and surreal animal representations were unlikely to capture the attention of those under 18 and that the music and voice-over were mature and not designed to attract a younger audience.

The CAP Code stipulates that alcohol ads must not particularly appeal to people under 18 by reflecting youth culture or showing juvenile behaviour. The ASA acknowledged that while some animated content might appeal to children, the specific animation in this ad was unlikely to do so. The characters were mature and dressed in period clothing, and the animals were not child friendly. The ad did not feature juvenile behaviour or youth culture references, and the music was considered not to be appealing to under 18s.

The ASA concluded that the ad did not breach the CAP Code, and the complaint was not upheld.

Key takeaway:

• The ASA will consider the overall impression of the ad, including visual style, music, and voice-over, in determining its appeal to different age groups.  The use of mature themes, period settings, and non-child-friendly characters can help mitigate the risk of an ad being held to be appealing to a younger audience.

By Isabella Savage, Associate in the Intellectual Property team in London. 

CMA approves Meta's proposed addition to data use rules

The Competition and Markets Authority (CMA) has accepted an amendment to commitments from Meta regarding the way it uses advertising customers’ data. Following an investigation launched by the CMA in 2021 in relation to suspected breaches of competition law by Meta, Meta committed to implementing technical controls to ensure that data from competitors of Facebook Marketplace would not be used inappropriately. Competitors of Facebook Marketplace that advertised on Meta platforms could ‘opt out’ of their data being used to improve Facebook Marketplace. These commitments were accepted by the CMA in November 2023, which brought the investigation to an end with no decision being made as to whether the Competition Act 1998 had been infringed.

Earlier this year Meta proposed a variation to those commitments to include the option to extend the technical controls to cover data from all advertising customers, and not just competitors of Facebook Marketplace who have opted out. The practical effect of this variation would be that all advertisers could place ads on Facebook Marketplace with the certainty that their advertising data would not be used to improve the service, without having to opt out.

This variation aims to address broader competition concerns by ensuring that Meta's use of data is fair and does not give it an undue advantage over other advertisers. The CMA reviewed this proposal and found that the variation would effectively address the concerns initially identified.

Meta is allowed to comply with either the original terms of the commitment, or to exceed those commitments by applying these newly introduced terms. It is unclear what steps Meta has taken already to implement these commitments, or which set of commitments it intends to abide by. The CMA's decision noted that Meta was required to notify the CMA and its monitoring trustee within one month of the decision as to which technical controls plan it intended to implement, but no such notification has been made public.

As of today, Meta's public-facing Code of Conduct states "Meta Personnel should not use non-public data or information directly or indirectly derived from advertisers’ use of Meta’s advertising services to develop products in competition with those advertisers, unless approved in advance by Legal".

Key Takeaway:

• Advertisers can place ads on Facebook Marketplace with assurance that their advertising data will not be used to enhance the service, without needing to opt in or out.

By Meg Chiu, Trainee Solicitor in the Intellectual Property team in London