COVID-19: Advertising Responsibly II

We wrote previously about the ASA’s response to a wave of adverts that were found to exploit people’s health related anxieties and the difficult financial or employment circumstances many people were facing because of the pandemic. As noted, the ASA published guidance on the main areas in which it believed ads might be deemed problematic and highlighted that it would take a pragmatic approach when dealing with any complaints. Despite this, there has been a number of ads that have again made misleading claims, resulting in the ASA banning the ads (four in total at the time of writing). We have summarised below the latest ASA rulings.

Ads which make direct and indirect references to COVID-19 continue to be a hot topic and advertisers operating in this space must exercise special caution. With the pandemic continuing to affect us all - becoming ever more a part of our everyday existence - the ASA have also released updated guidance in relation to ads that depict current government and scientific rules (i.e. ads that show depictions of people wearing face masks or observing social distancing).

ASA Rulings and Key Areas of Concern

The ASA has banned the below ads for making unsubstantiated ‘medical or medicinal claims’ as such claims may only be made in relation to licenced medicines or appropriately marked medical devices.

The ASA banned a paid-for Facebook ad and a website post for a COVID-19 test site that implied that a positive antibody test would show that people were immune to the disease;
The ASA banned a website ad for a health clinic for stating that a COVID-19 antibody test was 100% accurate and for implying that a positive result would show that people were immune to the disease;
The ASA banned a direct email from a vaccination clinic that implied that a positive COVID-19 antibody test would show that people were immune to the disease; and
The ASA banned an ad in a national newspaper that made misleading and unsubstantiated claims that a reusable face mask would protect the wearer from COVID-19 and that copper-infused fibres in the mask would kill particles of COVID-19.

As well as ensuring claims relating to medicines and medical devices are accurate, the ASA is keen to avoid ads that may cause fear and distress. Arguably, each of the above ads could have the effect of exploiting an audience’s fear in order to mislead them into buying a product.

ASA Guidance

As highlighted above, the ASA continues to develop its approach to moderating ads and ensuring that public health messages are adhered to and promoted in ads. To this end the ASA Council have agreed three guiding principles that it will take into account when assessing concerns about ads which do not depict current government and scientific best practice designed to limit the spread of COVID-19.

ASA Council Guiding Principles:

Ads which actively discourage protective measures such as mask wearing or social distancing are likely to be irresponsible in all circumstances and therefore a breach of the CAP Code. The ASA will be likely to investigate such ads with a view to banning them.
Ads which are responsibly created and which make explicit reference to the existence of the pandemic must, where relevant, show depictions of social distancing, the correct use of face masks and other protective Covid-19 measures in line with current Government advice at the time the ads were created.
Ads which are responsibly created but which do not explicitly reference the existence of the pandemic would not be likely to need to depict coronavirus protective measures such as social distancing and the use of face masks.

Moving Forward

Ads in this space will, rightly, continue to receive additional scrutiny from both the public and regulators but with advertisers having a wealth of guidance and best practice steps to follow, hopefully, the number of ads in which the ASA has to take affirmative action should remain relatively low. Even with a relatively low number of problematic ads, given the sensitivities of the pandemic and its continuing impact on us all, the potential for harm to the public should not be underestimated.

For more information on anything within this article, please contact Rachel Bell.