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Complying with ASA rules during a pandemic

Published on 07 August 2020

In light of the new UK’s Advertising Standards Authority (ASA) and Competition and Markets Authority (CMA) Guidance, what do brands need to be aware of when marketing during the COVID-19 pandemic or similar “exceptional circumstances”?

The key takeaway

Whilst the rules on advertising have not changed as a result of COVID-19, the ASA has announced that there will be “an uncompromising stance on companies or individuals seeking to use advertising to exploit the circumstances for their own gain”, including where adverts seek to exploit people’s health-related anxieties or difficult financial or employment circumstances. The ASA will be looking to actively protect consumers from coronavirus scams and products and brands may need to take a more nuanced approach with marketing material. 

The background

Since the start of lockdown, the ASA and the CMA have published a series of guidelines, blogs and rulings that will assist promoters, influencers, agencies and brands as they continue to navigate the various ASA rules during the COVID-19 crisis. The Guidance also highlights the reporting tools that will help consumers make complaints about coronavirus-related ads and unfair commercial practices. 

The guidance and advice notes

A. Promotions

The ASA published Guidance on “Dealing with unexpected events when running promotions“on 7 May 2020.Within the Guidance, the ASA draws attention to section 8 of the CAP Code which governs promotions and covers the possibility of events which are unexpected and beyond the promoter’s control. In relation to existing promotions, a business can only make changes to the terms and conditions in exceptional circumstances under consumer law and the ASA rules. The COVID-19 outbreak is recognised by the ASA as an “exceptional circumstance” and may require promoters to rethink aspects of a current promotion. However, promoters must be able to show that:

  • the changes are necessary because of the crisis
  • they have kept participants updated on any amended rules
  • consumers would have entered the promotion even if the new rules had originally been in place.
If the COVID-19 outbreak has impacted a closing date of a competition, the promotor must be able to demonstrate:

  • why it is necessary to change the date
  • that changing date the date would not be unfair/disadvantage those who participated under the original terms.
Additionally, if the current situation has also impacted the ability to award prizes within the usually mandated 30 days, a promotor is not permitted to cancel a promotion without awarding any prize at all. Promotors must actively communicate with consumers that a prize or a suitable equivalent will be awarded as soon as possible. 

Where the availability of promotional items has been affected, promoters must be able to show they had made a reasonable estimate of demand. Simply using the disclaimer “subject to availability” will not relieve promoters of their obligation to do everything reasonably possible. If promoters are no longer able to supply and fulfil demand for a promotional offer due to COVID-19, Rule 8.11 requires promoters to ensure timely communication and offer refunds or substitute products, where there is a detriment to applicants and consumers. 

B. Free trials and subscriptions 

During lockdown, subscription platforms like Netflix have significantly increased. To incentivise consumers, brands will typically offer free trials. In response to this uptake, the ASA has published top tips on advertising free trials responsibly. The Guidance does not include new information but reminds businesses of the information which needs to be clearly provided to consumers, including:

  • what a consumer needs to do to trigger the free trial
  • whether a subscription payment automatically applies to the consumer unless the trial is manually cancelled
  • details as to how the consumer can cancel
  • the extent of the financial commitment if the consumer does not cancel
  • any other significant conditions, such as the end date for commencing the free trial or whether limitations apply, such as the trial being made available to new customers only.
In addition, the Guidance reminds brands that, in order to use the term “free trial”, the offer must be genuinely free to the consumer. Businesses can charge for delivery provided that it is the genuine, uninflated cost of postage, but cannot charge the consumer for packing, packaging, handling or admin fees. 

C. Promoting alcohol 

The ASA has also published advice specifically for alcohol marketers to ensure that alcohol-related promotions do not encourage excessive drinking. This is especially relevant during lockdown, as Alcohol Change UK reports that one in five people are drinking more than usual during lockdown. Brands should be mindful that they are prohibited from claiming that alcohol can cure boredom, provide escapism or a solution to other problems.

Why is this important?

The ASA has been very clear that it will take an extremely dim view of anyone seeking to capitalise on the pandemic to sell products or services. The CMA have also launched a taskforce to tackle negative impacts within its remit of the COVID-19 outbreak as well as an online service through which businesses and consumers can report COVID-19 related unfair practices.

Any practical tips?

Be sensitive to the unintended impact marketing material may produce as well as to the key message your brand is trying to convey. Mentioning the pandemic in adverts is allowed provided it is not done in an exploitative or inaccurate way.

However, brands must be mindful of the ASA’s tough stance as well as the recent media criticism that some businesses are inappropriately “corona washing” (brands seeking to ally themselves with the national effort or frontline workers without an obvious connection). 

Additionally, any businesses advertising their charitable efforts related to COVID-19 should be mindful that they will need to comply with rules on charitable marketing and specific charity law requirements.