Key takeaways from our Annual Review of 2021 and look ahead to 2022

On Tuesday afternoon we held our Advertising & Marketing Law Annual Review. We had a record number of guests tune in to the webinar, so thank you to all those that attended. For all those that weren’t able to make it, here are our key takeaways from the event:

1. Green Claims: The Competition and Markets Authority (CMA) published its new Green Claims Code in September 2021 and are now due to begin a full review of green claims following a grace period. Certain sectors, including fashion, will be prioritised in the review, but that doesn’t mean other sectors will escape scrutiny. You can find the guidance, including their principles here. The Advertising Standards Authority (ASA) has now commenced enquiries into priority areas; e.g. cars. It is important to note that the CMA covers all commercial practices, not just advertising and will therefore pick up any areas that are outside the ASA's remit, such as packaging claims. The CMA is also able to bring prosecutions, which could give rise fines. We saw examples of upheld complaints against Hyundai and Alpro, whilst Jaguar Land Rover were able to defend their ad successfully.
   
   
2. Influencer Marketing: The Incorporated Society of British Advertisers published their new ISBA Code of Conduct in 2021. It’s not a new set of rules, but a guide to ‘best practice’ when using influencer services. It aims to deliver the transparency consumers expect and deserve whilst enabling authentic and effective influencer marketing. Notably, it specifies #ad as it's preferred method of disclosure in favour of tools such as the paid partnership handle on Instagram. This year we saw the ASA uphold an interesting complaint against influencer Emma Louise Connolly in relation to promotional posts for a brand in which she was an investor.
   
   
3. Crypto & NFTs: The ASA has expressed concern that people are investing in crypto and NFT without fully understanding what they are, or the risks involved, are. They feel brands are not using appropriate risk warnings and are instead trivialising these investments and advertising them in a light hearted manner. The ASA has decided to issue a number of rulings in favour of new guidance and we’ve seen a number upheld complaints, including this one against Papa John’s.
   
   
4. Data Protection Update: The Information Commissioner's Office (ICO) had a busy year in 2021, with over 25 rulings and millions in fines. We highly recommend that those who tend to take a riskier approach to their marketing strategies revisit their tactic this year. Fines have been issued against American Express, who were fined £90,000 for sending what they argued were ‘service emails’ to users about reward schemes, but which the ICO decided constituted marketing emails as they encouraged users to use their Amex card and/or app. The ICO Adtech investigation was also restarted in January 2021; there haven’t been any major findings or actions but an opinion was released in November that reiterated the need for consumers to be given a genuine choice when being engaged with online behavioural advertising.
   
   
5. Sales Promotions: In 2021, the ASA published key findings from recent adjudications about online sales promotions. You must select prize draw winners randomly, ensure you can independently check the winner has fulfilled the entry requirements, ensure a bonus entry genuinely increases an entrant’s chance of winning and ensure all significant conditions are presented to consumers. We saw upheld rulings against influencer Molly Mae and PrettyLittleThing.com.
   
   
6. HFSS: From the end of 2022, there will be a 9pm watershed for TV ads for HFSS products, including on-demand programme services. There will also be a ban on paid-for ads online. Enforcement will come from the ASA, with Ofcom having backstop powers to impose fines of up to £250k. Restrictions on the promotion of HFSS products by volume, price and location are also due to come into effect from October 2022. These restrictions will cover promotions such as ‘buy one, get one free’ or HFSS products found at the end of aisles in supermarkets or by the checkouts. You can find the full legislation here. In the meantime, we’ve seen McDonalds and ITV successfully defend their media scheduling for an HFSS TV ad (with a little help from you-know-who).
   
   
7. Online Harms: The Online Safety Bill aims to tackle a range of ‘harms’ on social media platforms, including those activities that are not unlawful but are ‘harmful.’ The bill currently excludes paid advertising, but this may change following a review by the Joint Committee of MPs and Peers who recommended the inclusion of paid-for advertising, as well as the suggestion that platforms themselves should conduct risk assessments of ‘reasonably foreseeable threats’ from the harmful impact of algorithms and content. This is something to watch as it develops in 2022.
   
   
8. Diversity & Inclusion: In January 2021 we saw the release of the Governments ‘Stay Home. Save Lives’ campaign which portrayed a number of families, with all bar one showing women in very stereotypical situations, engaging in cleaning, looking after children etc. The advert was (unsurprisingly) pulled almost immediately. We also saw upheld ads against Kai Aviation, Jigsaw and JD Recruitment for all causing serious harm or offence.
   
   
9. Covid Related Advertising Issues: In February 2021, we saw an upheld ruling against Ryanair’s ‘jab and go’ advert, with a huge total of 2,370 complaints made to the ASA. The phrase ‘jab and go’ was found to be misleading and irresponsible. Cignpost Diagnostics’ ad advertising their PCR tests suffered an upheld ruling in July. The ASA took a stringent approach and argued the ad was in breach of relatively ambiguous government guidance at the time and therefore found it to be both misleading and socially irresponsible. In December, the ASA received 5,000 complaints regarding the Tesco Christmas ad featuring Santa with a Covid vaccination passport. Despite the huge number of complaints, the ASA announced on Twitter that the advert was humorous and was unlikely to breach the CAP Code, and therefore did not investigate. Arguably a victory for common sense.

Thank you again for all those that joined, and many thanks to my partners Bryony Long, Geraint Lloyd-Taylor and Jo Farmer for joining me as speakers. We will be sending out copies of the slides and a recording of the webinar to all those who registered. Please let me know if you would like to be included.