Creative marketing is memorable, effective and can really add value to a brand – but falling foul of advertising regulation can lead to damaging press attention and other unpleasant consequences.
The Advertising Standards Authority (ASA), the UK advertising regulator, requires that all promotional activity be “legal, decent, honest and truthful” and those who follow the ASA’s weekly rulings will know how easily aspects of a campaign can trigger complaints and lead to sanctions for the advertiser (and its agency).
In the run-up to Black Friday and the Christmas holiday season, which for many will be bigger than ever after last year’s muted celebrations, it seems timely to recap some key principles for sales promotions:
- Do not engage in misleading tactics such as “bait and switch” advertising, false endorsements or unsubstantiated claims.
- Make clear any conditions, restriction or exclusions.
- Assess likely demand and ensure you have a reasonable level of stock to avoid disappointing consumers; if demand exceeds expectations, take steps to communicate any changes.
- Similarly, do not falsely suggest that availability is very limited with the aim of pressuring people into making a rushed decision.
- Do not advertise savings on “everything” if certain products are not in scope for the promotion.
- If a sale is “up to 50% off”, a reasonable range and number of products must be marked down by 50%.
- When making a “was” price claim, the product must have been sold at the higher price for a reasonable period of time (and you will need to evidence that). Traders have often been caught out by deals showcasing an attractive price when the “was” price was actually an inflated price in the run up to the promotion.
- When referring to an RRP, it should be the price at which the product is generally sold and not simply an RRP stated by the manufacturer (which may no longer be a fair price) – and if no one else sells the product, avoid referring to an RRP. Falsely claiming a price advantage in any way is considered to be misleading.
- Before making any claims about a product, be confident you have gathered objective evidence to back it up if challenged.
- Whilst imitation may be the highest form of flattery, brand owners will enforce their rights if you sail too close to the wind in imitating a product, packaging or logo, which could constitute trade mark infringement or other breaches of intellectual property law.
These rules are set out within the ASA’s CAP Code but extreme cases of misleading or aggressive sales tactics can also lead to criminal fines and even imprisonment under consumer protection law.
Advertising rules aside, remember that any email marketing campaign must comply with data protection law and direct marketing rules, behavioural advertising or online tracking is likely to need opt-in consent and individual shoppers are very well protected by a range of consumer rights.
John Lewis, a frontrunner in festive advertising, has recently had a television campaign taken down due to regulatory concerns about misleading consumers. Being carried away with the excitement of launching a promotion is all too easy but do take the time to check you are keeping within the rules.
If you would like to discuss any concerns about advertising or promotions, feel free to contact a member of our Commercial team.
