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CAP publishes timely guidance on qualifying claims in adverts with Black Friday approaching

Posted on 19 November 2020

As Black Friday fast approaches, and with Christmas round the corner, advertising campaigns are ramping up for brands, advertisers and marketers across a variety of media forms.

Given this is a busy time within the advertising industry, the Committee of Advertising Practice (CAP), which is the body responsible for writing the UK's non-broadcast marketing communications, has published some helpful guidance. The refreshed version of the CAP's guidance provides those operating in the non-broadcast advertising industry with timely and useful information to bear in mind when using qualifications in adverts.

What is a 'qualification' and what rules apply to them?

A qualification in an advert provides consumers with additional information that may clarify or expand upon the primary claim of the advert (e.g. an advert may claim that a product is free, but only if certain conditions are met). If the qualification (e.g. the conditions that need to be met for the product to be free) is not provided to the consumer, the advert may mislead (or being likely to mislead) the consumer, which would breach Rule 3.1 of the CAP Code.

There are two CAP Code rules that are particularly relevant to qualifications. Firstly, an advert must "state significant limitations and qualifications" and "qualifications may clarify but must not contradict the claims they qualify" (Rule 3.9). Secondly, qualifications must be clearly presented (Rule 3.10).

Why do qualifications matter and what issues does the guidance seek to address?

Advertisers often find themselves on the wrong end of a ruling from the UK Advertising Standards Authority (ASA) a result of their (improper) use of qualifications in three main ways:

  1. failing to include qualifications that materially impact upon the consumer's understanding of the advert's primary claim or of the advert as a whole,
  2. misleading consumers as the primary claim and qualification contradict each other and
  3. not clearly presenting the qualification with an appropriate degree of prominence.

Key takeaways from the guidance

1. When to use qualifications?

  • As noted above, qualifications should be used to ensure that consumers are not likely to be, or are, misled. In order to achieve this, the guidance suggests claims should either be: (a)"worded to reflect in full the point that the marketer wishes to make about the product, service or promotion"; or (b) "suitably qualified with additional information to ensure that consumers are not likely to be misled".
  • The latter is most relevant to advertisers given the conditions and factors often applied to offers, products or services – such as time limits, geographic availability, any exclusions, any costs for the consumer if stated to be 'free'.

2. Clarity and prominence

  • To comply with Rule 3.10 of the CAP Code (see above), any qualifications should be "clear and legible" and "be prominent enough to capture the consumer's attention" – advertisers should consider such requirements for any qualifications in the context of the relevant media form or advert format.
  • The guidance provides a list of factors that will be of assistance for advertisers when considering how best to present their qualifications, including size of the text (e.g. between devices and appropriate for each device), positioning (e.g. vertical text being easier to read than horizontal), significance of the qualification, prominence of the primary claim and the content, layout and nature of the media form as a whole (e.g. colour of text against the background).

3. "Qualifying Ladder"

  • The guidance suggested advertisers use a "qualifying ladder" to assist advertisers with deciding how to approach qualifications, and splits adverts into order of prominence:
    • headline,
    • sub-heading,
    • body copy and
    • disclaimer/footnote.
  • The guidance states that in the event of a complaint, advertisers should be able to justify why they placed the qualification within one of the four categories of the "qualifying ladder" set out above, and why such placement of the qualification was appropriate to avoid misleading consumers.
  • A safety first approach is advised by the guidance. If an advertiser is in doubt about the appropriate placement of the qualification within one of the four levels of the "qualifying ladder", advertisers should place the qualification in the next level above (e.g. if initially placed within the body copy, advertisers should move the qualification up to the sub-heading).
  • Whilst the distinctions between the four categories of the "qualifying ladder" may not always be clearly identifiable, the ASA will consider such instances on a case-by-case basis. Given this, we suggest advertisers adopt a pragmatic and rational approach in keeping with the overall intention as a default position. 
  • Asterisks can be useful for qualification. For example, if a primary headline claim requires qualifying in the body copy, advertisers can instead place the qualification in a footnote linked to the headline by an asterisk.
  • When using footnotes and other qualifications, it is important to ensure that they are clearly legible to the average consumer to which a marketing communication is directed reading it once, from a reasonable distance and at a reasonable speed.

4. Consider the form of media

  • Depending on the form of the non-broadcast media, advertisers should consider different approaches to using qualifications that are appropriate for that specific media form.
  • In particular, differences are noted between (i) print which consumers physically possess and so have greater time to digest any caveats (such as newspapers and direct mailings), (ii) posters and ambient media (likely to be from a greater distance, so text size and legibility are concerns) and (iii) audio-visual media, which are limited by time and space (such as VOD and sponsored search adverts).

Final thoughts

Whilst the guidance is not binding, it provides advertisers with assistance in ensuring their adverts do not fall foul of the Code. This is particularly important given the weight attached by the ASA to qualifications of any primary claim by marketers when advertising. In light of this, advertisers should be able, and prepared, to justify any their use of any qualifications to the ASA.

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