ASA rulings point to a proactive regulatory approach during the COVID-19 crisis

While the ASA is adapting its regulatory approach to the COVID-19 crisis, recent rulings show a readiness to act when public health and consumer trust are at stake

30 April 2020

Introduction

The Advertising Standards Authority (ASA) has ruled that adverts by two companies for face masks were “misleading, irresponsible and scaremongering”. For the ASA, the use of “alarmist” language and explicit references to the novel coronavirus made the adverts likely to exploit public fears regarding the pandemic. The rulings are interesting early examples of the ASA’s approach to its regulatory duties during the ongoing health and economic crisis – in particular, its commitment to prevent any exploitation of people’s health-related anxieties or challenging financial circumstances. The rulings demonstrate, too, that, where appropriate, the ASA will use government advice (here, in relation to public health and the use of face masks) to inform its rulings. As such - and especially in the highly fluid present circumstances - advertisers and businesses should be taking note of all potentially relevant legislation, additional guidance issued by public bodies, and any guidance issued by the ASA itself.

The ASA during the current crisis

The ASA is conscious that its regulatory role continues despite the present crisis - in many ways taking on greater importance as questions of public health, public trust and the reliability of information come to the fore. Scam products and the exploitation of financially vulnerable consumers are viewed as key risk areas. Gambling operators have been warned to be especially mindful of their ongoing duties under the Advertising Codes during the ‘lockdown’. The ASA, Citizens Advice and National Trading Standards (among other consumer protection bodies) have all committed to improving consumer awareness of potential scams. At the same time, however, the ASA recognises the strain that businesses are currently under. The regulator is therefore adapting its regulatory approach and certain procedural changes have been introduced to streamline the complaints process.

At the level of principles, the ASA is looking to be proactive and firm in dealing with adverts that exploit the current circumstances or undermine public health advice. However, it is also prepared to show sensitivity to the acute threats and uncertain trading conditions that businesses face. By adopting a “lightness of touch in some areas” – that is, an appropriate degree of “regulatory forbearance” – the ASA hopes not to add unnecessarily to businesses’ concerns (while nonetheless continuing to enforce the CAP Code and perform its statutory duties). This will likely manifest itself in a preference for an advisory (as opposed to investigatory) approach towards minor indiscretions, as well as more “tailored”, flexible enforcement focused on stakeholder dialogue.

There have also been practical changes. A new, anonymous reporting form enables consumers to submit complaints specifically relating to coronavirus. The ASA’s goals are clear: proactive regulatory action, rapid and flexible responses to concerns, and consumer protection. 

The recent rulings

In this context, the ASA’s recent rulings are instructive examples of how the ASA will flex its regulatory muscles. The offending adverts all appeared online in February this year. Easy Shopping 4 Home Ltd (“Easy Shopping”) advertised its masks on Amazon, while Novads OU’s adverts appeared on various websites via the Taboola advertising platform (including on the websites of the Scottish Sun and the CNN news channel).

Easy Shopping’s Amazon listing described the product as a “Coronavirus Anti Corona Virus Vented Face Mask”. For the ASA, the reference to “coronavirus” amounted to a suggestion that the masks would protect individuals from infection. Noting that Public Health England had not recommended the use of face masks for protective purposes – and that there was (at that time) minimal evidence of widespread benefit to their use - the ASA found that the listing was likely to exploit public fears in relation to the pandemic: it was “misleading, irresponsible and likely to cause fear without justifiable reason”.

Novads OU’s adverts were found to breach the CAP Code for the same reasons. The adverts took various forms. But all included references either to the face masks “selling out fast” or claims as to their efficacy in providing protection against the virus. One - appearing on www.diseaseprevention.world - resembled a news article and stated “Just Released: The Mask That Will Keep Your Mind More At Ease During The Spread of The New Virus”. As with Easy Shopping’s adverts, the ASA considered that the developing pandemic left consumers vulnerable to believing that the masks would protect them from infection. The efficacy claims and alarmist language (notably that demand was high and stocks were low), were other key factors in the ASA’s ruling. The rulings mean that neither Easy Shopping’s product listing nor Novads OU’s adverts can appear again.

Conclusion

The ASA is conscious of its ongoing regulatory role during the current crisis, especially given its focus on consumer protection. While its announcements point to a balanced approach that recognises the challenges businesses are facing, the recent rulings show that the regulator will not hesitate to bring action when necessary. Firms looking to promote their products should be wary; close attention to government public health guidance, the CAP Code and the ASA’s announcements will be crucial to avoid falling foul of the rules.

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

  • Commercial
  • Intellectual Property and Media
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