Advertising and marketing | Regulatory Outlook June 2022

ASA announces new AI project to tackle unlabelled influencer marketing

In its Annual Report 2021, the Advertising Standards Authority (ASA) announced a new project which uses artificial intelligence (AI) to capture and analyse the social media posts of high-risk influencers for failing to clearly and consistently label ads as such. The use of technology is enabling the ASA to review approximately 20,000 Instagram Stories per month. 

Alongside this new project, the regulator is increasingly turning its attention toward companies that partner with these influencers and is holding them to account. Repeat offenders will face enforcement action and the ASA is engaging with social media platforms to delete the accounts of the most prolific offenders. For more on ASA's annual report, read our Insight. 

ASA clarifies its stance on plant-based green claims in advertising

In two recent rulings, here and here, the ASA has confirmed that advertisements with general claims that a plant-based diet can reduce environmental impact are more likely to be acceptable than those which are product-specific. Also, advertisements that make comparative claims are likely to be misleading without robust evidence backing up the claims. 

ASA statement on World Environment Day

To coincide with World Environment Day on 6 June 2022, the ASA published two statements:

• The first statement detailed the outcome of the ASA's review of environmental claims in the Heating/Energy and Transport sectors, research results of consumers' understanding of carbon neutral and net zero claims for electric and hybrid vehicles, a look at greenwashing rulings and the CMA's investigation into fast fashion. The statement then turned to what is coming up next, including: research into consumer understanding of "sustainable" and "eco-friendly" in summer 2022, a review into waste claims such as "recyclable" and "biodegradable" in late 2022 and most notably, a review into meat, dairy and plant-based substitute claims in 2023.
• The second statement is an opinion piece in which the ASA underlines that precision matters. The key takeaways are:
  • The ASA is not interested in what an advertiser intended to say by the wording of a claim used – it's what consumers would understand a claim to mean that is important to the ASA.
  • The ASA has suggested businesses "put [them]selves in the shoes of the average member of the public [it's] talking to".
  • The ASA emphasises that consumers won’t have spent days, weeks or months, like the advertiser would have, thinking about the product or service. So green claims need to be (1) simple; (2) precise; and (3) limited to what the advertiser is really trying to draw attention to.

ASA commences new programmatic paid-for advertising pilot to improve online transparency

Further to an announcement issued earlier this year, the ASA has now commenced a one-year pilot titled “Intermediary and Platform Principles” that explores the regulator’s role online alongside some of the largest companies in the programmatic paid-for advertising supply chain. The pilot is the result of a collaboration between the ASA and various members of the Internet Advertising Board UK (a member of the Committee of Advertising Practice (CAP)), including various social media platforms. It runs alongside the ASA’s existing collaborative “More Impact Online” strategy, twin-track regulation, and transparent and accountable regulation, and is focused on bringing more transparency to the role online advertising intermediary companies play in the ASA system via programmatic paid-for advertising to help deliver better outcomes for consumers. 

The pilot will run for one year from 1 June 2022, following which the information provided by participating companies and collected by the ASA will be analysed and reported on. The reports will be used to identify areas for improvement and evaluate whether there are any gaps in the ASA’s ability to enforce the CAP Code. Further details of this pilot can be found here.

For more of the latest marketing law updates, see our latest edition of Marketinglaw.