Misleading Advertising Index
5.1 Limitations on Offers
5.2 Evidence
    5.2.1 The Need for Evidence
    5.2.2 The Nature of the Evidence
          5.2.2.1 Hygienic Cleaners
          5.2.2.2 Comparative Battery Performance Claims
          5.2.2.3 Comparative Antiperspirant Performance Claims
          5.2.2.4 Comparative Vacuum Performance Claims
    5.2.3 The General Requirement
    5.2.4 Medical Evidence
5.3 Claims
    5.3.1 Superlative Claims
    5.3.2 Qualified Superlative Claims
5.4 Particular Claims
    5.4.1 Guarantees
    5.4.2 Sales Claims
    5.4.3 Claims that Products or Services are 'Free'
    5.4.4 Price Claims
          5.4.4.1 Actual Cost to the Consumer to be stated
          5.4.4.2 Price Comparisons
          5.4.4.3 Refunds
          5.4.4.4 Shopping Baskets
    5.4.5 The Legal Position
    5.4.6 'Lowest' or 'Best' Price Claims
    5.4.7 'Unbeatable' Price Claims
    5.4.8 Price Guarantees
    5.4.9 Price Promises
5.5 Comparative Performance Claims
5.6 Denigration
5.7 Naming Comparisons
    5.7.1 The Legal Position
5.7.2 Clearcast's Requirements
5.8 Claims in Superimposed Text
5.9 Claims Relating to Mobile Phone Tones and Logos, etc.

The prevention of misleading advertising is one of the fundamental aims of the Code. It is also a legal obligation.

Advertising should be prepared with a sense of responsibility to consumers. It should be noted in this connection that ASA will have particular regard for children and the vulnerable so presentations and offer descriptions will need to be particularly clear and unambiguous where they are likely to be concerned.

It is generally agreed that misleading advertising is both wrong and potentially damaging to all in the advertising and broadcasting industries. Public trust in and esteem for the standards of television advertising are extremely high and the perceived general honesty of advertising is a valuable attribute not to be compromised.

Misleadingness can arise from a distortion of the attributes of a product or service whether by inaccuracy, ambiguity, exaggeration or omission of important details.

Misleading impressions can be either explicit or implicit and may be given in audio claims, claims in super-imposed text and in visual treatments.

Some claims also might be juxtaposed to suggest a misleading link between them. Care should be taken to set such claims clearly apart to avoid any ambiguity.

5.1 Limitations on Offers
Almost all offers for sale of goods and services have some limitations attached to them and it is here where omission of information in the advertisement can be critical. It is generally not sufficient to state that limitations apply. The requirement is usually to explain those limitations. The approach is to pay particular regard to the needs of the ‘vulnerable’ which means in practice that little previous knowledge or experience of the product or service can be assumed on the part of the viewer.

5.2 Evidence
5.2.1 The Need for Evidence
The Code requires that television licensees must obtain objective evidence to support all claims (see section 5.3 below for detailed information about claims). In considering this, advertisers need to be aware that given the view of misleadingness which includes implications and unstated limitations on availability as described above, evidence will need to be complete to allow a judgment to be made about whether an offer or performance is adequately and fairly described and portrayed. A great deal of the work of Clearcast is to investigate claims through reference to information and evidence to ensure that the advertising message is a fair one and to be in a good position to deal with complaints from viewers and competitors and from any regulatory intervention. Given that evidence or other supporting information are almost inevitably going to be required in order to progress to script and commercial approval it makes good sense to include relevant material when the script is first submitted – the first request from a Clearcast staff member handling a submission is almost always going to be to request details so it make sense and saves time to pre-empt that request.

5.2.2 The Nature of the Evidence
Clearcast does not generally set detailed requirements for evidence except in specific product categories: hygienic cleaners, batteries and antiperspirants. Protocols for testing performance in these areas are to be found in the appendices to these Notes.

5.2.2.1 Hygienic Cleansers
In the light of possible confusion over the performance of a variety of cleaning products on a variety of tasks, the manufacturers of such products worked with Clearcast to produce a set of guidelines specifying performance parameters for certain claims. For example, it was concluded that the simple expression ‘germ’ had to be taken to mean bacteria, viruses and toxins and unless products could demonstrate a satisfactory level of ‘kill’ on all these then claims to deal with germs were not acceptable. If performance is only against bacteria then the advertising has to be specific.

The full text of the industry standard is reproduced at Appendix 6. Clearcast will expect compliance with this standard when hygienic cleansing claims are made.

5.2.2.2 Comparative Battery Performance Claims
The performance of a battery depends on its design and construction and on the use to which it is put. Different types of construction work better in discharge and rest cycles than they do in continuous discharge situations, for example. There are industry standard test protocols for battery performance produced by the IEC and Clearcast will expect data in support of battery performance claims to have been produced in accordance with these industry guidelines.

5.2.2.3 Comparative Antiperspirant Performance Claims
No comparative claim will be allowed unless evidence in support of the claim has been produced in accordance with these protocols which are available at Appendix 7 of these Notes.

5.2.2.4 Comparative Vacuum Cleaner Performance Claims
All claims relating to the performance of vacuum cleaners must be substantiated by appropriate tests. These should follow, or be of equivalent standard to, IEC Standard 60312. Performance claims which are not covered by IEC Standard 60312 should be backed up by rigorous non-standard tests.

Performance claims should reflect typical conditions of domestic use and be clear and fair.

Any claims for health benefits should be substantiated by clinical trials on human subjects; these will be submitted to Clearcast’s Medical advisers for assessment.

5.2.3 The General Requirement
The general requirement is that evidence must be comprehensive and well-organised and that it should be accompanied by a letter explaining where support for different aspects of the claims is to be found within the dossier.

Where research is submitted as evidence, Clearcast expect this to be well designed and conducted. Clearcast retains the right to have the research assessed by a qualified researcher where there is doubt as to the quality of the research and the conclusions drawn from it. Care should be taken in referring to findings of research or survey results as being “official” lest it suggest that the results have the endorsement of Government or Public bodies.

Evidence – particularly where products or services are being compared with another in some way – can be overtaken by events. It is the advertiser’s responsibility to inform Clearcast of any material information and remove from air any claim which becomes inaccurate through developments in the market place.

All evidence received by Clearcast is held in confidence and will only be revealed to Clearcast consultants and, on request, to Regulatory organisations. The advertiser will normally be informed if this is to be done.

Evidence might well be reviewed by ASA as part of the process of complaints investigation so good evidence provided to Clearcast may well be conclusive in keeping the advertising on air in the face of a complaint or challenge.

5.2.4 Medical Evidence
Where the product to be advertised is a medical one, the evidence submission should usually include a copy of the relevant MHRA Marketing Authorisation (Product Licence). Where proposed claims are medical or dental in character, supporting evidence ought to be in the form of peer reviewed published studies or data of equivalent standing. As well as making their own assessment of material, Clearcast  may very often refer support documentation to one of the panel of consultants frequently used by Clearcast.  Their function is to investigate evidence and advise Clearcast on the extent to which claims are supportable. Their investigations are conducted in confidence and under the strict understanding that data provided to them is commercially sensitive.

Advertisers and their agencies should be aware that if this happens the consultant will review material as quickly as possible but it can add to the time that will be taken to clear scripts.

5.3 Claims
The Code has specific rules dealing with particular kinds of claims and these, together with some other common ones, are detailed in these Notes. This list is not exhaustive. It should be noted that it is not only explicit claims that are significant – implications are subject to the same requirements for evidence and have the same need to avoid being misleading.

(In considering this, advertisers need to be aware that viewers, Clearcast and ASA may find implications where none are intended by the advertiser and this underlines the importance of clear communication in a finished commercial and the value of pre-production discussion with Clearcast).

5.3.1 Superlative Claims
The term ‘superlative’ refers to the word ‘best’ and other words having substantially the same meaning.

Superlative claims are acceptable, subject to substantiation where necessary.

Problems do not generally arise with superlative claims referring to a subjective quality, e.g. taste, and presented clearly as a matter of opinion, so that the viewer or listener is free to agree or disagree with the opinion expressed.

However, where the superlative claim refers to a quality capable of being measured, which is presented factually, e.g. size, substantiation will be required. As a general rule, it should be assumed that any superlative claim capable of factual substantiation will need to be substantiated.

5.3.2 Qualified Superlative Claims
Superlative claims capable of factual substantiation, but where the available evidence is insufficient to establish a categorical claim, may be acceptable if qualified or clearly presented as the advertiser's own belief. Such claims would not, however, be acceptable if made in the absence of any convincing evidence, or if the advertiser's opinion appeared to be at odds with the available evidence. It would, obviously, need to be amended immediately in the event of a successful challenge from a competitor.

5.4 Particular Claims
There are rules and practices applied to specific kinds of claims in some areas. The following sections explain these.

5.4.1 Guarantees
Rule 5.2.5 of the Code provides that where there are significant limitations to an advertised guarantee these must be stated.

Words like 'guarantee', 'guaranteed', etc. are normally acceptable only in cases where a material remedial action is offered, additional to the customer's rights in law or accepted trade practice.

Advertisements for Medical products may not claim guaranteed medical efficacy.

These rules are not intended to restrict the colloquial use of 'guarantee' where there is no risk of its being misunderstood, e.g. 'Guaranteed to make you laugh'.

For guidance on Price Guarantees see 5.4.8 below.

5.4.2 Sales Claims
Advertisers need to be aware that in this area, perhaps more than in any other, figures can change over time and it is therefore extremely important that figures are updated regularly and action taken by an advertiser to remove outdated claims from air the moment they become aware of any significant change. While Clearcast cannot monitor compliance it can reasonably make it a condition of any clearance given that the advertiser will undertake to keep the position under review.

5.4.3 Claims that Products or Services are ‘Free’
The Code (5.2.4) lays down strict conditions on the use of the word 'free' or any other word or phrase having essentially the same meaning within the context of the advertisement.

Please also refer to BCAP Help Note on “Free” Claims which is principally concerned with internet and phone service packages and defines where the use of “free” may be used to describe additions to packages and where the appropriate word is be “inclusive “.

There is no objection to offering a free premium conditional on the purchase of other items. However, the description 'free' is inappropriate where an additional charge other than any of the following is made:

• actual rates of postage;
• standard-rate telephone calls;
• the actual cost of freight or delivery of the promotional goods;
• the reasonable costs, including incidental expenses, of any travel involved in the consumer taking up the offer.

There should be no additional charge for packing and handling.

It is not acceptable to promote the use of a premium rate telephone number in order to obtain a 'free' gift.

The consumer's liability for any costs should be made clear in all material featuring the “free” offer. This liability could, for example, include the need to collect tokens or to travel a considerable distance to redeem the offer.

It is not legitimate for advertisers to recoup the cost of a free offer:

• by imposing charges they would not normally make;
• by inflating beyond their actual level any expenses they incur on postage, freight, etc;
• by altering the composition or quality, or by increasing the price, of any product which must be bought in order to qualify for the offer.

If the price of the goods has been increased shortly before the offer, particularly when there has been no other increase for some time previously, the advertiser should be prepared to provide evidence that the price increase is not related to the 'free' offer.

A trial should not be described as 'free' or 'a gift' if the consumer is expected to pay the cost of returning any goods, unless this requirement is made entirely clear in the commercial.

When the consumer's entitlement to a free offer is dependent upon purchasing more than a single product, the need for additional purchases must be made clear in the commercial as must the need to collect tokens if this applies.

If any indication of the monetary value of the 'free offer' is given, and that sum is not the advertiser's own current price for the product, then the advertiser will have to demonstrate the value has been assigned in accordance with relevant legislation.

An offer may not claim to be 'free' if the trader is prepared to reduce the price to customers who do not take it up. Any offer which consists of giving one product without charge on condition that another is paid for should normally be temporary; once such a combination offer becomes established, the use of the word 'free' is likely to be misleading.

In the case of magazine inserts into newspapers the rule of thumb is that after one month in circulation the insert should no longer be described as free.

Where an accessory is described as being offered 'free' with the item purchased, the advertiser must confirm that one of the following criteria applies:

a) he normally supplies the item at the price quoted without the accessory in question;
or
b) he normally includes the accessory in question but makes an additional charge for it.

5.4.4 Price Claims
Clearcast will always request written confirmation that prices cited in advertising are accurate and that goods are universally available at the quoted price. The information will have to show the full price for the goods or services, taking into account all taxes and the cost of any non-optional extras. Where price reductions are offered, it should be remembered that there are legal requirements to be met concerning the circumstances in which price reductions are offered and Clearcast will need appropriate information to show compliance – for example, assurances that higher prices were indeed charged for the goods prior to the current advertised reduction or that there is a genuine manufacturer’s recommended price.

If Clearcast find themselves is any doubt about the legality of a proposed price reduction they will invite the advertiser to provide reassurance in the form of a letter from the local trading standards officer or lawyer.

5.4.4.1 Actual Cost to the Consumer to be Stated
Prices stated in advertising should accurately reflect the price the consumer will be required to pay for the product or service. Non-optional additional costs such as VAT or other taxes, delivery charges etc. must be included. Only where an advertisement is clearly targeted at businesses able to recover VAT, may VAT be excluded from the headline price but it must be clearly stated in the advertisement that VAT has not been included and the rate or amount of additional costs must be given equal prominence.

5.4.4.2 Price Comparisons
Price comparisons by retailers are generally acceptable, provided they are substantiated and there is no risk of consumers being misled.

5.4.4.3 Refunds
Offers to refund money if merchandise is found to be cheaper elsewhere can be accepted only if it is easy and straightforward for consumers to take advantage of them, e.g. where they relate to specific items. Such offers are acceptable provided the retailer is offering something in addition to the customer's rights under statute law. They are not acceptable if they indicate no more than a willingness to replace or refund the price of defective merchandise.

5.4.4.4 Shopping Baskets
Comparisons based on variable and undefined concepts such as ‘shopping baskets’ are not acceptable.

5.4.5 The Legal Position
Anyone intending to make price claims should refer to the Code of Practice for Traders on Price Indications, published by the Department of Trade and Industry. This Code represents the official statement of good practice and in the event of an advertiser proposing to deviate from it, Clearcast will require a sound case to be made before the advertisement can be accepted.

5.4.6 “Lowest” or “Best” Price Claims
These types of claims are acceptable where a retailer is able to demonstrate that his prices are lower than those of any of his competitors. The advertiser must also be able to demonstrate that he carries out an ongoing monitoring operation to ensure that his prices continue to beat,not merely match, competitors prices. These sorts of claims must be accompanied by a price guarantee which must be mentioned in the advertisement.
Rapid reaction in the market place often means that this sort of claim is unlikely to remain valid over an extended period and it is the advertiser’s responsibility immediately to remove such claims from the advertisement should market conditions change.

5.4.7 ‘Unbeatable’ Price Claims
‘Unbeatable’ price claims are permitted where a retailer can demonstrate that his prices are as low as, but not necessarily lower than, those of any of his competitors.
Claims in this category are sometimes expressed as 'never knowingly undersold', or 'you can't buy cheaper'. The retailer must provide evidence that he monitors his competitors' prices on an ongoing basis to ensure that his own prices remain unbeatable.
Claims of this nature should be supported by a price guarantee (see below), which must be mentioned in the commercial.

5.4.8 Price Guarantees
A price guarantee indicates that a retailer can demonstrate that his prices are either the lowest or unbeatable (see above), as the case may be, and that he also undertakes, in the unlikely event of a customer subsequently finding an item at a cheaper price elsewhere, to refund the difference (or in the case of a 'lowest prices' claim a sum greater than the difference) and simultaneously to reduce his own price for the item concerned to the appropriate level.
Price guarantees are commonly subject to qualifications in respect of time, place, in stock or not, etc., and the terms of the price guarantee must be either clearly displayed at point of sale or else available in writing to the customer. (Note: offers to refund the purchase price (or the difference) should not be confused with, or described as, a 'price guarantee' if they are limited to a willingness to reimburse an individual customer without any accompanying reduction in the retailer's price for the item concerned).

5.4.9 Price Promises
In practice, the words 'price promise' are often used to mean much the same as 'price guarantee'. However, the term 'price promise' would also be acceptable in referring to a simple willingness to reimburse an individual customer, where there is no claim to offer the lowest or unbeatable prices, provided the advertiser can show that his prices are generally competitive, provided he is able to support such a claim and provided the nature of the promise is clear in the commercial, e.g. 'Our price promise means that if you find any item cheaper elsewhere we'll refund the difference'. It would not be acceptable to use the term 'price guarantee' in this context, since the advertiser cannot, in fact, guarantee that his prices are either as low as, or lower than, those of his competitors.

5.5 Comparative Performance Claims
The Code (5.4.6) permits comparative advertising so long as there is no likelihood that viewers will be misled as the result of any comparison either about the product or service advertised or the one with which it is being compared.
Advertisements containing comparisons with other advertisers, or other products, are permissible in the interest of vigorous competition and public information.
a) All comparative advertisements must respect the principles of fair competition and must be so designed that there is no likelihood of the consumer being misled as a result of the comparison, either about the product advertised or that with which it is compared;
b) the subject matter of a comparison must not be chosen in such a way as to confer an artificial advantage upon the advertiser;
c) points of comparison must be based on facts which can be substantiated and must not be unfairly selected. In particular:

(i) the basis of comparison must be the same for all products being compared and must be clearly stated in the advertisement so that it can be seen that like is being compared with like;

(ii) generalised superiority claims must not be made on the basis of selective comparisons.

5.6 Denigration
Advertisements must not unfairly attack or discredit other products, advertisers or advertisements directly or by implication.
As a general rule the principal purpose of an advertisement should be to promote the advertiser’s goods or services, not to damage the reputation of other advertisers goods or services.
In all comparative advertising and particularly advertising which names or otherwise identifies competitive products or services (see also Naming Comparisons below) it is important that advertisers do not unfairly attack their competitors.
Advertisements whose function or effect is to denigrate a competitor’s goods or services are not acceptable, irrespective of whether or not the comparative claims are valid on a purely factual basis.

5.7 Naming Comparisons

5.7.1 The Legal Position
It should be noted that such comparisons are the subject of specific legislation and advertisers are urged to take authoritative legal advice before making such claims.

5.7.2 Clearcast’s Requirements
The specific identification of another product or service by name may be acceptable in a comparative advertisement subject to the following conditions:
(i) The comparison must be based on irrefutable evidence acceptable to Clearcast and, if appropriate, Clearcast's technical consultants.
(ii) The comparison must be stated accurately and factually and no unjustified conclusions may be drawn from it, or implied, regarding other aspects of the products being compared.
(iii) The comparison must be significant in consumer terms.
(iv) The advertiser must satisfy himself that the advertisement does not infringe the legal rights of any competitor and Clearcast may require evidence that this is the case as a pre-condition of approving specific advertising proposals.
(v) The advertisement must comply with the relevant rules of the Code in the spirit as well as in the letter.
(vi) Transmissions of the advertisement are likely to be suspended pending further investigations if an objection of substance is received by Clearcast.
The use of comparative advertising can easily distort facts and, by implication, convey information which may be misleading to consumers and unfair to competitors. This is especially so when the comparison is selective and when the competitive product is named or otherwise specifically identified. Each case will be considered on its merits and agencies and advertisers are strongly advised to discuss any proposals with Clearcast at the earliest possible stage.
This note of guidance does not apply to advertisements for medicines, treatments and health claims, which may not name or otherwise specifically identify competitive products or services.
See also the appendices to these Notes which deals with comparative claims relating to hygienic cleaners and antiperspirants.

5.8 Claims in Superimposed Text
It is a general principle that the main communication in visuals and audio of a commercial ought to contain all important information about the goods or services on offer. Superimposed text may not be used in such a way as to contradict any impression given in the main body of the commercial but may be used to qualify or give further important or useful information. In order for this information to be communicated adequately BCAP Advertising Guidance Note No 1 on On-screen Text and Subtitling in Television Advertisements contains extremely detailed guidance on the size, style, colour, backgrounds and length of hold required of superimposed text.
All material submitted to Clearcast will have superimposed text checked against the guidelines.
Any material that does not comply will be rejected for broadcast.
The Code requirements on Super-imposed Text together with the Advertising Guidance Note No. 1 are reproduced in full in Appendix 3 to these Notes.

5.9 Claims Relating to Mobile Phone Tones and Logos etc
Advertisements for services which invite viewers to text or call a number in order to receive ring tones, polytones, screen savers, tarot texts, wallpapers or other similar products must make clear that the viewers will be registering for a subscription service or that they will incur a significant monthly subscription as a result. Advertisements must state what the monthly subscription charge is and must also clearly state how this service may be discontinued.