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Anyone in the online marketing space from large, million-pound retail sites to a retired teacher who sells animal portraits are subject to new and changing regulations, updates and directives.

The responsibility to understand these new regulations now falls not just on those marketing online, you now just have to be online.

Recent changes

There have been a few shifts in online marketing to create the sort of environment and regulations seen by other more traditional forms of media or physical properties. 

For one, the Advertising Standards Authority introduced their new regulations in March meaning that not only marketing messages in paid-for channels are subject to regulation, but also content on your own website properties. 

Secondly, part of Google’s recent algorithm update (the so-called Panda update) in April was in part an attempt to downgrade ranking of sites “with an excessive number of ads that distract from or interfere with the main content”. Then at the end of last month, a new EU directive against use of cookies on websites came into play across most of the EU.

There has been a particular interest in the new ASA remit and we at Flowers HQ wanted to take a growing business’ perspective of it and how it might affect our behaviour online.

Perhaps it’s worth looking at some of the areas the ASA already covered before the extended remit. For many years, paid-for advertising online (such as pay-per-click search and display ads) has been well within its remit.

This seems straightforward. Online advertising isn’t a new or niche form of advertising anymore and consumers should be appropriately protected from fraudulent claims and unclear messages about costs and offers. 

What isn’t so straightforward; however is that some of the mechanisms of online marketing can make it tricky for advertisers to even know that they are falling outside of the Committee of Advertising Practice (Cap) code. 

Potential issues

From reading the adjudications on the ASA website you can learn a lot about how easily a mishap could come about.

For example, Flight Centre were given a wrist slap for having a Google PPC ad with text describing £348 flights to South Africa, when in fact that copy was a year out of date and there were no flights available at this price. 

Flight Centre responded that with such a large number of ads in their account, and just one person managing them, there had been an oversight. We can sympathise. 

We have over 30,000 different PPC copy variations running at any one time for Arena Flowers, all of which fall under scrutiny of the Cap regulations. A daunting thought. 

It must be even harder when the PPC is managed by an external agency, where changes to product offers and availability may be harder to communicate.

Another example is a recently upheld complaint to Groupon. Arena Flowers complained about a display ad offering roses bouquets for £8 when we were unable to find any such offer within the Groupon scheme. 

Groupon’s response was that Groupon in the UK had no involvement in the creation of execution of their online banner ad campaigns (they came from the German branch of Groupon). 

A great example of how just because it’s easy to stick ads up online without thought or involvement, it could damage your brand reputation or get you into trouble with the ASA.

It’s not just the offers you advertise, you have to be pretty careful about the language that you use too.

For example, if you have an offer on a product but there is an unavoidable transaction fee or postage and packaging fee, you should include this in the price of the offer.  

The National Boat Shows ltd. sent out an email to its customer base offering two early-bird tickets for £20. A complaint to the ASA about an unavoidable £1.75 transaction fee not included within the £20 was upheld, even though the terms and conditions of the email offer did mention that a transaction fee would apply.

The Cap Code

The new remit of the ASA which was brought out from the 1st March 2011 extends even further, onto the web properties of companies and brands themselves. Here it could be even easier to be caught out without care and attention. Remember: it only takes one complaint for the ASA to investigate. 

What we’ve understood about the new remit:

We watched Cap’s video guide about the new remit. The presentation can be viewed on the website http://www.cap.org.uk/, though you need to sign up to Cap in order to view it.  

On websites, prices and descriptions should accurately represent the product depicted and any guarantee for delivery etc. would have to be substantiated. Cap gives an example of a broadband supplier which offers certain broadband speeds, but in reality, customers on average get a much poorer experience.

So far, the majority of the currently upheld complaints within the new remit have come from unsubstantiated claims about products.

There are five or six claims which have been upheld to date. The first upheld complaint was against the Maperton Trust who claimed on their website that their badge device could repel head lice from children. The ASA assessed that they could not satisfactorily substantiate the description and they had to remove all claims that the product can repel head lice from their website.

There have also been upheld complaints also for a book offering an Alzheimer’s-reversing breakthrough, one for a weight loss solution, there was also one for a mineral supplement. 

The usual Cap code applies on websites too (things like causing offence or harm, or how you depict alcohol use etc). For example, there was an adjudication against Yahoo! UK Ltd for an advert on the login screen about 2x faster Yahoo! Mail. 

The complaint wasn’t about unsubstantiated claims over the speed of the service, but rather that the image on the advert showed two women in a sports car and the slogan ‘Faster is funner’, perhaps condoning and encouraging excess speed and irresponsible driving.

The finer points of the remit

Editorial content

Interestingly, the remit does not cover editorial content on a website. Unless, I suppose editorial content is used to market a product. The tanning shop was brought up for using unsubstantiated editorial content in a marketing email, as it used an article published on the Mail Online suggesting that some sun tanning was good for you.

Because the company had used the editorial content in a marketing message, it fell under the ASA responsibility and the article did not constitute sufficient evidence to substantiate the claim. We imagine the same would happen if the Tanning Shop now used this editorial content on its website.

Use of customer reviews and user-generated content 

Another grey area is the use of customer reviews.  These are not within the remit of the ASA, unless they are used for marketing purposes. 

The example Cap uses in its presentation is of the reviews on Amazon’s product pages. These are not within the remit. This seems like a grey area to us because they are one of Amazon’s most valuable marketing tools. The same applies to the sometimes hilarious reviews and feedback on the Firebox product pages.

Although in both cases they are clearly in review sections of the site and represent feedback and reviews from consumers, they are still a massively powerful marketing tool. 

Press and PR materials

Press and PR materials are also not within the ASA’s remit. This could be a potential grey area but Cap and the PR regulating bodies have worked to clarify the remit in this area, but that doesn’t necessarily help the websites to understand what is in the remit and what isn’t and raises the question of where marketing ends and PR begins? 

It’s worth reading this post by Graham Charlton, which takes some industry experts’ opinions on some of the grey areas in the Cap code extension.

Social Media

Social media communications fall within the new remit. Essentially, your Facebook page or Twitter feed should comply with the regulations or risk an ASA complaint. 

But what about the comments that users may write on your Facebook wall?  In its video, Cap explains that you can’t reasonably control what consumers write on your company wall.

However, if you reuse these comments yourself (for example, Firebox is using Facebook comments within some marketing emails) then this does fall within the remit.   

How about Twitter? Someone can tweet a comment at you, but if you retweet it, then it may fall under the remit. 

So what happens when you do make a mistake and a complaint is upheld? 

The ASA seems to take quite a soft approach when a complaint is upheld; the advertiser or website owner has to take down the ad or text and not show it again in its current form. 

This doesn’t seem like too big a deal for an advertising spot or a tweet, but when the complaint is upheld against claims made about a key product on a website (such as in the case of Maperton’s head lice device), an adjudication could be quite damaging to the business.

How can you avoid getting a complaint upheld with the ASA?

  • Familiarise yourself, your marketing department and design team with the new regulations and extended scope of the remit.
  • Respond if the ASA contacts you about a complaint. Many complaints I have read and have been upheld included a mention of breach of rule 1.7: Unreasonable delay.
  • Show that you can substantiate claims. Perhaps have a look at the copy you’re using across your website and make sure that it expresses precisely what you can substantiate and remove claims which you cannot.
  • Be mindful of the context of the content you’re using. Remember that user-generated reviews and editorial content isn’t within the remit, unless you use it for marketing purposes.
  • Beware of excited retweeting of followers’ tweets if what they say about your company or products cannot be proved. Make sure the people who update the Facebook page and the Twitter feed are aware that they need to be as careful in these spaces as they are on the website itself.
  • Perhaps if using an external agency, get them to assure you that they are aware of the new remit and also if you have high stock turnover or price changes, that there is a process in place for them to be made aware of the offers they can promote and ones which are out of date.
  • And if you don’t remove the text or advertising? The ASA has a ‘wall of shame for non-complying advertisers.

    I’m not sure how far you  need to push it before you get on the wall of shame; Home Shopping Selections Ltd, for example, has 10 upheld, or partially upheld adjudications; eight informally resolved cases; two mail order cases and eight database cases to date!

This isn’t meant to be a criticism of this new remit; anything which encourages confidence in the consumer to buy online is in our benefit and we welcome it, we just want to really understand what it means for us and you should for your own website and marketing comms too.


Published 7 June, 2011 by Will Wynne

Will Wynne is Managing Director at Arena Flowers and a contributor to Econsultancy. If you want to, you can add Will to your circles on Google Plus.  

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Comments (1)


Gareth Dix

Does that mean that the flight centre will stop sending me emails offering flights for £1 when after taxes and other charges actually cost £300?

Because they haven't

over 5 years ago

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