Q4 2023: Top 10 ASA rulings

A quick overview

First, we look at a strict ruling against Toyota for an ad which showed SUVs being used off-road and in natural ecosystems. The ASA ruled that this condoned behaviour which was harmful to the environment and was therefore created without a sense of responsibility to society. 

We also look at two other rulings in relation to societal issues but - this time - where the ASA did not uphold the complaints. In particular, we look at the ruling on the PETA ad which promoted veganism and featured a dead cat. The ASA considered that consumers would understand that the messaging behind the ad was challenging social norms so it was not irresponsible. The Unilever ads, which received 137 complaints, featured content about eating disorders and the impact of social media, but the complaints were not upheld because the overall message of the ads was to raise awareness about the issue and promote support.

Next, we consider a ruling relating to the depiction of unhealthily thin models, which is one of five rulings on the issue this quarter. We also look at a ruling about the promotion of e-cigarettes and vapes on social media (another topical subject matter), as well as two rulings which illustrate common pitfalls when advertising alcohol. 

There are two rulings relating to endorsements. The Borthwick Group ruling is an important one, showing how ASA complaints can be used as complementary tools to trade mark infringement / passing off claims, as the ad gave a false impression that it was endorsed by the BBC. Meanwhile, the Emma Mattress ruling conveys the importance of making clear the commercial affiliation and intent in an ad.

Finally, we look at the EE ruling which explores issues of adequate substantiation and verifiability of claims. 

Read about these rulings in detail below.

• Date of ruling: 22 November 2023
• Decision: Upheld
• No. of complaints: 1

A Facebook post and poster ad for Toyota showed a number of SUVs driving across various landscapes, including "off-road", rocky terrain and urban areas. The ads were challenged on the basis that they condoned behaviour that is harmful to the environment.

Toyota responded that the sheer volume of cars in the ads would lead viewers to interpret the scenes as fantastical and not real-world, but the ASA did not agree. It ruled that the ads condoned the use of vehicles in a manner that disregarded their impact on nature and the environment and had been prepared without a sense of responsibility to society. Of particular relevance was the fact that the ad showed the cars in an off-road landscape (not even on marked tracks), with dust and scree visibly disturbed, as well as crossing a river. This gave the impression of encouraging driving, regardless of its purpose, across off-road environments and natural ecosystems with no regard for the environmental impact of such driving. The decision can be contrasted with a 2021 ASA ruling concerning a Jaguar Land Rover press advert depicting an SUV with muddy wheels on a marked track/untarmacked road in a forest. The ASA held that this advert did not breach the requirement for ads to be prepared with a sense of responsibility to consumers and society. The ASA noted that untarmacked road surfaces are often be encountered in rural areas, and that the use of vehicles like that shown in the ad could be vital in such areas for navigating such country roads and tracks. 

This is the first SUV ad that the ASA has banned for breaching social responsibility requirements. The regulator may continue to clamp down on similar ads that encourage irresponsible behaviour towards the environment, even if the ad is intended to be hyperbolic and not representative of real-world behaviours.

The complainant in this ruling was Adfree Cities, a network of groups challenging corporate outdoor advertising and calling for an end to advertising of high-carbon products and services. Adfree Cities has also made complaints against Shell and Repsol this year. 

ASA ruling on People for the Ethical Treatment of Animals (PETA) Foundation t/a PETA

• Date of ruling: 23 August 2023
• Decision: Not upheld
• No. of complaints: 10

The billboard for PETA featured an image of a fishmonger holding a fish, with text stating "SEA THINGS" when viewed from the front. When viewed from the side, the image shifted to show a dead cat in place of the fish, with text stating "SEA THINGS IN A DIFFERENT LIGHT". Further text stated “RESPECT ALL LIFE. GO VEGAN”. 

The complainants challenged whether the ad was excessively distressing and likely to cause serious or widespread offence, and whether it was responsibly targeted because it appeared in public where children could see it. 

PETA claimed that the depiction of dead animals was justified by the urgency with which society should address commercial fishing harms. The ASA ruled that, although some may find the ad unsettling or distasteful, most viewers would understand the aims of the ad to challenge societal norms regarding meat consumption. The ASA did not consider the depiction of the dead cat to be gruesome, shocking, or realistic, and even children were likely to regard the image as mild. The complaints were therefore not upheld.

In contrast, the ASA ruled that two ads for vegan charity Viva! relating to dairy farming were likely to cause offence, unjustified distress and had been irresponsibly targeted. The ads showed yoghurt pots filled with bloody, raw offal meat labelled "Killer Yoghurt. Flavoured with a mother's grief" and showed a woman with blood dripping from her mouth followed by footage of cows in an indoor dairy farm. The gruesome nature of the ad rendered it inappropriate for a general audience.

ASA ruling on Unilever UK Ltd

• Date of ruling: 8 November 2023
• Decision: Not upheld 
• No. of complaints: 137

Two TV ads and two VOD ads for Dove featured real stories about individuals' experiences with mental health struggles and disordered eating patterns. The ads showed an individual watching social media content which glamorised a thin body type, showed them in an Eating Disorder Unit and finally showed an older version of them in recovery. Some of the ads also referred to body dysmorphia, depression, self-harm and anxiety. The aim of the ads was to show how social media is harming children's mental health and to promote the 2023 Dove Self-Esteem Project Research for Kids Mental Health. 
The ASA received 137 complaints from consumers. The complaints were based on three grounds.

First, consumers complained that the ads were irresponsible and distressing, in particular to those affected by insecurities about their body image or those affected by an eating disorder. While the ASA considered the content to be emotive, the ads all contained a content warning at the start and concluded showing the individuals in recovery, which suggested a positive outcome. Some of the ads also contained signposting information for organisations that could help with the conditions mentioned, which highlighted the support available to those suffering. The ASA concluded that the overall message of raising awareness and promoting support for the issues mentioned was likely to be understood.

Second, consumers challenged whether the ads were appropriate for children to see. Dove requested that the ads were not broadcast before certain times, and it also manually reviewed the programming of the ads to ensure they were thematically appropriate. The ASA considered that Dove had taken appropriate action to limit the likelihood of children viewing the ads or seeing them unaccompanied, so the complaints were not upheld.
Third, consumers were concerned that the ads were shown during ad breaks for reality dating show Love Island and were therefore inappropriately placed. Dove specifically placed the ads during this programme as the show was broadcast after 9pm and had been a touchpoint in contemporary debates about body image and social media, which contextualised the ads. The ASA ruled that the audience for Love Island was likely to understand the theme and content of the ads, so the complaints were not upheld.

ASA ruling on Celine SA

• Date of ruling: 20 September 2023
• Decision: Upheld
• No. of complaints: 2

This is one of five rulings published this quarter relating to the depiction of unhealthily thin models in ads, along with Naked Wolfe Ltd, Maje SAS, Health Support Store and Chengyi Daily Department Store.

The Celine ad, seen in The Sunday Times Style magazine, featured a female model leaning on her elbows with her back raised above the ground. The styling and pose strongly emphasised the model's narrow waist. Celine explained the model wore size 10 shorts and had a healthy BMI. Celine also provided a GP's opinion that the model had normal musculature and bodily proportions and no excessive fluid build-up around limbs and extremities. Nonetheless, because the public did not have access to the model's biometric information and would not view the model’s appearance from the same perspective as a medical professional, the ASA ruled that the model was portrayed as unhealthily thin which was irresponsible. 

The ASA reached similar conclusions in the other rulings for this quarter, in particular pointing to features like irregular body proportions, facial gauntness, narrow waists, extremely thin limbs and protruding bones as well as styling techniques relating to camera angles, colour contrasts, shadows, and clothing size and shapes. 

Additionally, two of the rulings which related to ads for weight loss products seen on AliExpress were socially irresponsible on the basis that they encouraged aspiring to be dangerously thin and to purchase potentially unsafe products to achieve weight loss.

ASA ruling on Vapes-Bars Ltd

• Date of ruling: 13 September 2023
• Decision: Upheld
• No. of complaints: 1

This is one example of the 13 e-cigarette related rulings published this quarter, most of which relate to ads created by social media influencers. 

The promotion of unlicensed nicotine-containing e-cigarettes (whether direct or indirect) on certain media channels is prohibited under rule 22.12 of the CAP Code since a legislative ban was introduced by the Tobacco and Related Products Regulations. There is an exception to the rule which permits factual claims about products on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control where consumers have to specifically seek out that factual information.

In this ruling, five influencers' TikTok posts promoted Vapes-Bars e-cigarettes. The posts could be seen by any user and could be distributed to individuals beyond those who had followed the accounts, due to the way TikTok's algorithm works. This meant the content could be pushed to consumers without having opted-in to receive the message it contained, so it was not equivalent to actively seeking out factual information. As a result, neither promotional nor factual content was permitted. 

The ads featured gifted products, and some influencers offered the products as prizes or offered discount codes. The ASA found that even if there was no contract between the brand and the influencers, the posts were still ads, as the gifted products constituted payment to the influencers. This promotional content was therefore prohibited and breached the advertising code. 

ASA ruling on Global Brands Ltd

• Date of ruling: 20 September 2023
• Decision: Upheld
• No. of complaints: 2

A TikTok ad for Corky's alcohol on an influencer's account was challenged for (i) not being obviously identifiable as an ad, (ii) being inappropriately targeted, (iii) condoning excessive drinking and (iv) featuring individuals under 25. 

The ASA found that the post was an ad, even though it fell outside of the contractual agreement between the influencer and Corky's, because Corky's had paid for the food and entertainment featured in the post and some of the content had been approved and posted in a previous ad. The influencer's post was not obviously identifiable as an ad, with the caption insufficiently stating "THANKYOU CORKYS".

Although most of the influencer's followers were over 18, there was limited data about the proportion of her followers who were under 18 and TikTok's 'For You' page algorithm could not exclude the possibility of under-18s seeing the ad. On that basis, the ASA ruled that insufficient care had been taken to ensure the ad was not targeted to under-18s.

Furthermore, the ad encouraged and depicted excessive and irresponsible drinking due to statements like "we were steaming", people drinking from the bottle and playing drinking games. 

The ad also showed individuals who were under 25 drinking.

The ad therefore breached the advertising code on all four grounds. As these issues are probably the most common in the context of alcohol advertising, this ruling helpfully captures the ASA's position. 

ASA ruling on AB InBev UK Ltd t/a Camden Town Brewery

• Date of ruling: 23 August 2023
• Decision: Upheld
• No. of complaints: 1

This is one example of the six alcohol rulings published this quarter. The ASA seems to be prioritising alcohol ads which are likely to appeal strongly to under-18s. This is perhaps not surprising given the ASA's current focus on protecting children and the vulnerable.

An animated TV ad for Camden Town Brewery featured an adult character being sucked into a beer tap and transported into a fantasy-style brewery tour guided by a shape-shifting character. The ASA considered that the colours of the ad were bold and striking and the characters appeared friendly, with soft facial features resembling children's book or TV characters. Camden Town Brewery argued that the ad's style resembled adult-oriented animated programmes, and the voiceover actor and soundtrack was carefully chosen so they would not appeal to children. The ad also had a broadcast restriction to avoid under-18s seeing it. 

Despite this, the ASA ruled that the playful depictions of a fantastical-looking world with surreal background characters would likely appeal to people under 18, so the ad was found to be irresponsible.

ASA ruling on Borthwick Group (Energy) Ltd

• Date of ruling: 15 November 2023
• Decision: Upheld
• No. of complaints: 1

A Facebook ad for boilers from Borthwick Group featured white text in a red box, stating "BREAKING […] FREE REPLACEMENT BOILERS AVAILABLE FOR HOMEOWNERS IN RECEIPT OF BENEFITS", along with the text "BG NEWS". 

A complainant challenged whether the ad suggested it had been endorsed or approved by The British Broadcasting Corporation (BBC).

Borthwick Group had not made explicit claims that the ad was affiliated with the BBC and argued that it was common practice for advertisers to use "breaking" in ads. However, the ASA considered the ad appeared stylistically similar to a BBC breaking news Facebook post which gave a false impression it was endorsed by the BBC and was therefore likely to mislead consumers. 

The ruling shows how ASA complaints can be useful enforcement tools in addition to or alternatively to trade mark infringement and / or passing off claims. 

ASA ruling on Emma Matratzen GmbH t/a Emma Mattress

• Date of ruling: 8 November 2023
• Decision: Upheld
• No. of complaints: 4

Two paid-for YouTube ads for a mattress comparison site top5bestmattresses.co.uk were challenged. Ad (a) featured a positive review for an Emma-branded mattress presented by a Top 5 representative, and ad (b) showed images of mattresses with advisory notes like "How to choose a mattress" and a link to "best" products. 

The ASA acknowledged that the ads would likely give consumers the impression that top5bestmattresses.co.uk was an independent review site and an impartial source for objective reviews of mattress products. However, Top 5 was owned and controlled by a subsidiary of Emma. This was explained in the hyperlinked landing page of the Top 5 website, but not explicitly stated in the ads. The ASA ruled this amounted to an omission of material information as the ads failed to make clear the commercial affiliation between Emma and Top 5, and this was likely to mislead consumers. 

The ruling highlights the importance of making the partiality of any source prominent within a marketing communication. Advertisers and ads must make clear their commercial intent, if that is not obvious from the context.

ASA ruling on EE Ltd t/a EE

• Date of ruling: 23 August 2023
• Decision: Upheld in part
• No. of complaints: 3

Eight ads for mobile network EE were challenged by competitors Vodafone and Three as well as a member of the public. The ASA ruling came three years after most of the ads were seen in August 2020. 

The ads featured claims that EE was "No.1 for 5G" and this was accompanied by small print references to RootMetrics reports. The ASA ruled that, although EE substantiated it was "No.1 for 5G", the references to RootMetrics reports in the ads were irrelevant to the claims as the reports did not specifically relate to 5G network performance, and this was misleading.

The complainants also challenged whether several other claims were misleading and could be substantiated. In one instance, the ASA found that “EE HAS MORE 5G COVERAGE IN GLASGOW THAN VODAFONE, THREE AND O2” was misleading as EE's 5G network covered only 1% more area than its closest competitor. Meanwhile, for the claim “EE has 4x more 5G coverage in London than Three”, the ASA ruled that EE's evidence was sufficient and substantiated the claim. 

However, the ASA ruled that the claims above were not verifiable as they did not include sufficient information for consumers to verify the claims or clearly (if at all) point consumers to further information which could verify the claims. 

The ruling is long and complex and addresses five issues across eight ads, with some complaints upheld and others dismissed. Nevertheless, the key learning points are for advertisers to ensure that comparisons with identifiable competitors are verifiable and also to have relevant, specific, and reliable evidence to formulate any advertising claims.