April 30, 2018

The ASA says that around 70% of the complaints it receives are about misleading advertising. In many cases, to establish whether a claim is misleading, the ASA will need to make an assessment of evidence. The requirement for evidence can arise in any number of scenarios, from how long a company has been trading, to their prices, to the validity of the efficacy claims they make for their products.

Regardless of the nature of the claim, marketers need to bear the following points in mind:

Hold the evidence BEFORE making the claim

Rule 3.7 requires advertisers hold evidence for the claim before making it, so advertisers should be in a position to produce evidence, without delay, if asked by the ASA.

Evidence that supports the claim but which post-dates its appearance might mean the ad does not breach Rule 3.1 (marketing communications must not materially mislead), but it will almost certainly breach Rule 3.7 and therefore could be upheld on this technicality. In short, a claim should be built around the available evidence, not the other way around.

The evidence must be commensurate to the claim being made

In addition to the need for the evidence to relate to the actual product being advertised, different types of claim will require different levels of evidence; one size does not fit all. For example, it stands to reason that a breakthrough beauty claim will need much more rigorous evidence than a well-established one.

Substantiate the claim as it is likely to be understood by consumers

Marketers will need to have evidence to support the claim as it is likely to be understood by the average consumer; having substantiation for the claim as the advertiser intended it to be understood will not pass the test.

Obvious exaggerations, claims that are unlikely to be taken literally and clear statements of opinion are unlikely to need substantiation. Difficulty can arise, however, when a claim that a marketer intended as puffery is actually one that the ASA considers is likely to be understood as objective. To read the ASA’s advice note in full, click here.