Last week, a Dyson television advertisement was banned by the Advertising Standards Authority (ASA) on the grounds it was misleading. A ‘modest’ budget for a TV advert is around £25k. Thanks to rigorous due diligence prior to an advertisement being made, most commercials are fully compliant with ASA rules.

However, the Dyson case shows that even the biggest companies who have the kind of marketing and advertising budgets most of us can only dream of, can fall foul of ASA compliance.

The problem with the Dyson TV advertisement for the Pure Hot + Cool Fan

The advertisement for Dyson’s Pure Hot + Cool Fan was shown from several angles – from above, the side and front-on – no cord or power outlet was visible, the ASA said. The regulator stated that this could mislead viewers into believing the appliance was cordless, when in fact it needed to be plugged in.

Clearcast, the agency responsible for checking advertisements against the UK Codes of Advertising (the BCAP and CAP Codes), stated that said Dyson had invested heavily in cordless products, such as its series of vacuum cleaners, “so one could be confident” that it would promote any new addition to the range. This demonstrates that the watchdog will consider past strategies and promotion of recent products when deciding whether an advertisement is potentially misleading.

Following complaints, the ASA stated:

“if the fan had a cord that plugged into the mains electricity, viewers would expect to be able to see it in those shots”.

The regulator acknowledged that the final segment of the advertisement showed a cord leading from the base of the fan, but it was very difficult to see. It concluded:

“For those reasons, we considered that it could be easily missed and seen as part of the background by viewers.
“We concluded that, overall, the ad was likely to give consumers the misleading impression that the fan was cordless, and therefore that it breached the code.”

What constitutes misleading or false advertising?

According to the ASA, around 70% of the complaints it receives annually are related to misleading advertisements.

The Consumer Protection from Unfair Trading Regulations (CPUT), which implement the Unfair Commercial Practices Directive (UCPD) and the Business Protection from Misleading Marketing Regulations 2008, are the main laws controlling business to consumer advertising. Certain products such as tobacco and baby milk have specific regulations. The prohibitions in CPUT are reflected in the CAP Code.

Schedule 1 of the CPUT contains a ‘blacklist’ if 31 commercial practices that are always considered unfair, including:
• falsely claiming that a code of conduct is endorsed by a public body
• bait advertising
• falsely stating that a product will only be available for a limited time
• not declaring that you have paid for editorial content (false advertorials)
• false ‘closing down’ sales

The CPUT sets out three types of misleading practices in a commercial transaction, which includes the lifecycle of the seller/consumer relationship and therefore covers advertising:

• False or misleading practice – you cannot provide false information or deliver a false impression that could mislead the average consumer. An average consumer is defined as one who is “is reasonably well informed, reasonably observant, and circumspect.” The false or deceptive information must be of a kind that causes or is likely to cause an average consumer to make a purchase when they would have otherwise refrained. The Dyson advertisement falls within this category.
• A confusing comparison with the product of a competitor – an example of this is copycat packaging, designed to give your product the look and feel of a competitor’s. Note that this type of breach can also result in a trademark infringement.
• Failing to comply with a code of conduct – if you undertake to comply with a code of conduct and fail to do so if this failure leads to an average consumer making a transactional decision they would otherwise have not have made, you may be in breach of the CPUT.

You can also breach the CPUT via a misleading omission. This can occur if you:
• Omit or hide relevant information from the consumer.
• Provides material information in a way which is unclear, unintelligible, ambiguous, or untimely.
• Fails to identify its commercial intent, unless this is already apparent from the context.

To be in breach, the omission must cause or be likely to cause an average consumer to make a transaction they would not have otherwise made.

How to protect your business from a claim of false or misleading advertising

The key to avoiding an expensive claim of non-compliance is to ensure that all your advertisements:
• Include all the information consumers need to make an informed decision to purchase a product. This includes any conditions on the offer. These should be stated closely or via a clear link, to the main claim.
• Have clear pricing that includes VAT and booking fees.
• Do not overclaim the abilities of the product.
• Do not hide important information in the small print.
• Ensure you have evidence to back up any claims you make in an advertisement. For example, if you are advertising a fitness apparatus, ensure any claims you make about results can be corroborated with independent, professionally run trials.

In summary

Advertising is a significant investment for any business. Therefore, having an advertisement banned for being misleading is costly, both financially and reputationally. It is imperative that due diligence is performed throughout the creative stages of the process to ensure regulations are adhered to. The old saying, “an ounce of prevention is worth a pound of cure” is one that applies wholeheartedly to advertising compliance.

If you require legal representation, please contact us on 020 3870 3187.

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Tanveer is a specialist in criminal and regulatory law. He has been recognised by the Times Newspaper as a legal star of the future and ranked in Legal 500 as a recommended barrister. Tanveer writes regularly on topics ranging from financial crime to regulation and terrorism law.
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