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Advertising

Let’s support small, local businesses this Christmas!

Wednesday, October 17th, 2012

Many British citizens may feel sad that nearly 15% of high street shops across the United Kingdom are entirely vacant – and yet most consumers are guilty of acquiescence by shopping on-line; and many retail businesses owners feel they have no option but to trade on-line, given the cost of overheads from owning a shop on the high street. 

Famous personalities such as Mary Portas and Wayne Hemingway have been championing the cause of the traditional British high street, but what can we actually do to help besides simply talking about the issue amongst ourselves?

It may be a little early to start thinking about Christmas, but you may be interested to know in advance that over the 6 weeks running up to Christmas Day 2012, a new campaign “Celebrate an Independent Christmas” will encourage consumers to dedicate a proportion of their Christmas spending on local independent businesses.

If you wish to participate by either making the consumer pledge yourself, or by using it to help promote your retail business, check the website www.independentretailermonth.co.uk or follow #IndieXmas on Twitter from 12thNovember.

The Customer is Not Always Bright!

Friday, October 12th, 2012

While you need to take care that your products/services are not advertised in a misleading manner, it is heartening to know that UK regulatory bodies protect the rights of consumers with common sense.

Alpro (UK) Ltd, the company best known for its soya milk-based products, has recently launched two new drinks referred to as “almond milk” and “hazelnut milk”.  Its advertisements give the impression that nuts can be “milked”, and feature images of nuts with milky-coloured liquid pouring out of them. 

Complaints have been made by two members of the public, alleging that the adverts are misleading, because the drinks only contain 2% of actual almond (or 2.5% of actual hazelnut).  The Advertising Standards Agency have not upheld these complaints, as they consider it common knowledge that nuts cannot in fact be “milked”, and that therefore most of the liquid is unlikely to derive from the nuts themselves.

If you need any further guidance on advertising law, please contact Jo Tall at jo@offtoseemylawyer.com; and in addition you may wish to consult the ASA website: www.asa.org.uk.

Be careful with advertising your prices!

Wednesday, September 26th, 2012

Last week the Advertising Standards Authority (‘ASA’) upheld two complaints made against an on-line business which sells website domain names.  The advertisement emphasised their discounted prices, but only stated in very small print at the base of the page that “prices exclude VAT”, and “Additional Offer Terms and Conditions apply”.   Prospective customers would need to spot this subtle caveat for themselves, and then follow the link in order to discover that the discount applies only to the first year (after which the customer would be charged full price), and “when you register you will be charged for the first 24 months of your contract”.  Advertising prices

The business in question was not actually penalised by the ASA, but received a stern “ticking off” from them, and was told it may no longer display the advertisement in its current form.  In the future it will be required to quote VAT-inclusive prices (unless they have clearly stated that the deal is only intended for customers who pay no VAT or who may recover VAT); and that the provision that customers are billed for a 24-month contract at the time of registration should be clearly explained in the main body of the advertisement.

Please take care that your own on-line advertisements are not misleading in any way; and if you have any queries relating to advertising law, please contact us.

“Advergames” are subject to regulation too

Monday, June 4th, 2012

As you must be aware, businesses have started to advertise their products via computer games on their websites, and also on social media websites and as downloadable content or apps on mobile devices.  If you too are thinking of developing an “advergame” in order to advertise your goods or services, please note that as with any other on-line advertisement, you must abide by the CAP Code (the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing).

In 2008 for example, The Advertising Standards Agency (ASA) investigated a football game available on the free games website Mousebreaker.  The game in question featured Carling lager branding, and was linked to the Carling lager website.  Carling’s parent company, Coors, had paid for the link.  The game, it turned out, was effectively an advert for an alcohol brand, and because over 25% of Mousebreaker’s audience is under the age of 18, it was held to breach Rule 18.15 of the CAP Code.

If you have any concerns or queries regarding the legality of your marketing strategies, please contact Jo Tall at jo@offtoseemylawyer.com.

Is your promotional material legal?

Monday, May 21st, 2012

As many of Off To See My Lawyer clients are running businesses related to the health industry, we thought you may be interested to hear the outcome of a particular recent Advertising Standards Agency enquiry.  Six complaints were made about the claims of Miruji Health & Wellbeing’s product “Sit & Slim”.  Miruji Health & Wellbeing had made claims in an advertisement in the local press, and on their website, that their “slimming and therapeutic massage chair and programme” had been clinically proven by the NHS to induce weight loss, relieve stress, and lower blood pressure.  It even went on to say that the chair could provide a solution to obesity.

The ASA established that there had in fact been no formal NHS clinical research.  A casual study had taken place at a mental health hospital among staff participating in a free trial.  The hospital in question did not treat obesity.  Therefore this aspect of the advertising claims being made by Miruji Health & Wellbeing was a misleading endorsement, and as such held to breach two of the CAP Codes.

With regards the claims that the chair could treat high blood pressure, the ASA considered that high blood pressure is “a medical condition for which advice, guidance and treatment should only be conducted under the supervision of a suitably qualified health professional”.  The advertisements therefore also breached one of the CAP Codes (- in this case, the “Medicines, medical devices, health-related products and beauty products” rule).

On the subject of obesity treatment, and the claims that customers could lose weight using the chair and programme alone – the advertisements were held to have breached the CAP Code relating to “weight control and slimming”.

If you have any concerns about the legality of your own advertisements or the claims you make in your promotional material, please contact Jo Tall via jo@offtoseemylawyer.com and she will provide you with appropriate advice relating to the CAP Codes, and any other legal issues that require consideration.

Legal Development Watch

Monday, February 27th, 2012

Making a complaint about the advertisement of a competing business

If you wish to raise any complaints about an advertisement (or the advertising technique) of one of your competitors, you can no longer go straight to the Advertising Standards Agency (ASA).  As of 1st December 2011, you need to first approach your competitor and state in sufficient detail the factual basis for the complaint you wish to make.  You may only approach the ASA in the event you can’t reach an agreement with your competitor, and you will need to provide evidence of the fact you have made attempts to resolve the conflict yourselves.

Please note the following:

  • Bearing in mind your correspondence may later need to be provided to the ASA as documentary evidence, you may wish to send it by registered post.
  • The letter needs to have been signed or authorised by a senior officer of your business, and addressed to a senior officer of the competitor’s business.
  • If the complaint relates to an on-line marketing communication, your letter should refer to a screen shot of the page(s) or a relevant link.
  • You will need to allow five working days for a substantive response.  If they do not respond within that period, you may submit a complaint to the ASA.
  • When submitting the complaint to the ASA, ensure you include copies of all relevant correspondence between the parties.

If you have any further queries, please contact the team at Off To See My Lawyer.

What does the future hold for the Office of Fair Trading, and what impact will this have over advertising regulations? Watch this space!

Monday, January 30th, 2012

In line with the Government’s endeavours to transfer “decision-making powers and services to those at local level best able to exercise them to meet public need and then giving citizens the ability to hold the local decision-makers to account.[1], the Government welcomes the fact that consumers are becoming increasingly empowered in making wise and informed decisions when purchasing goods and services.  The Department for Business Innovation & Skills (BIS) published a proposal in June 2011[2] stating, “Empowered consumers demand choice and by exercising it, stimulate competition and innovation as well as high standards of consumer care.  Without informed consumers driving a hard bargain, businesses can become complacent and lose focus on becoming more efficient or investing in better goods and services.”  The Government therefore commends the positive effect of organisations such as Which? and Moneysavingexpert.com in providing more vigilant consumers with independent advice and information; and third sector bodies like Citizens Advice and Citizens Advice Scotland for the more vulnerable consumers.  Similarly it welcomes the increase in “the use of e-commerce and internet-based information and comparison sites by consumers to enable them to get the best deals.

Furthermore the BIS points out that if the law is “too prescriptive”, it will run “the risk of dampening competition and innovation”.  “Excessive regulation may limit consumer choice and, even if intended to protect consumers, can end up costing them more than the benefit it brings.

A general re-structure of the current system has therefore been suggested by the Government, whereby “responsibility for each aspect of consumer advice, representation and enforcement should be clear and should rest principally with one of three key institutions”.  These three institutions would be: (i) The Citizens Advice Service; (ii) “Trading Standards comprising Local Authority Trading Standards Services (LATSS), the Trading Standards Institute (TSI), the Association of Chief Trading Standards Officers (ACTSO) and the support infrastructure offered by the Local Government Group”’ and (iii) a new Competition and Markets Authority (CMA), created by merging the competition functions of the OFT and the Competition Commission.

With regards advertising, under the current structure businesses are largely trusted to ensure their advertisements are “decent, honest and truthful for the benefit of consumers, business and society”.  They may draft their own code designed for the protection of their consumers, subject to approval from the Office of Fair Trading (OFT); or they may ensure that they abide by the codes and guidelines developed by the Advertising Standards Agency (which have of course, also been approved by the OFT).  The OFT has statutory powers to prosecute any advertiser in breach of these codes.

The BIS proposes the creation of a single Competition and Markets Authority, whereby “the OFT will be merged into the new body which will have a principal focus on competition and markets.”  On the basis that a “role in consumer codes approval does not seem appropriate for the CMA”, the BIS suggests instead that businesses’ consumer codes need no longer be approved by the OFT, but by other means.  The Kitemark® accreditation system is proposed as one option; or alternatively an increased role by non-public bodies such as Which? The OFT’s other main function – that is, to prosecute offending advertisers – is also to be revised.

In October 2011, The Advertising Standards Agency (ASA) published a response to the BIS proposal, which largely defends the current system.  The outcome is yet to be decided…

For more information see: www.oft.gov.uk


[1] Edward Davey MP (Minister for Employment Relations, Consumer and Postal Affairs)

[2] “Empowering and Protecting Consumers: Consultation on institutional changes for provision of consumer information, advice, education, advocacy and enforcement”