This month the ASA has made some helpful rulings around (a) whether streaming services need to disclose the presence of paid ads up front in their advertisements and (b) how gambling companies can advertise in and around areas containing schools without breaching the CAP Code. There was also a ruling relating to the selection of product imagery to advertise “up to”-style discount promotions. 

Are ads expected in paid streaming subscriptions? 

What was complained about?  The home page of a website for a subscription service was advertising an offer for its streaming services. The offer contained information on the minimum subscription term, the inclusion of free trials for the specific plans advertised, and the plans’ cancellation policy  Terms and conditions were listed below in a drop-down section, in small text stating "Ad-free excludes live channels and trailers". A "saver" offer was also being advertised which provided details on, and hyperlinks to, three membership options, with no mention of ads. The bottom of the home page, in a “Frequently asked questions” drop-down section,  stated that one of the plans provided "ad-free experience". 

What was the ruling? Upheld. Whilst the ASA noted that ads are now becoming part of paid streaming subscriptions, it was considered generally as a new feature, starting in 2021. As such,  the ASA considered that some consumers would assume that paid subscriptions for streaming services would not include ads. As the ASA considered the presence of ads to be a key factor into allowing a consumer to make an informed purchasing decision, the use of ads was material information that needed to be presented clearly. The home page of the website did not clearly state that a feature of one of the plans was that it was ad free, and it was not made clear that this was not part of the different plans advertised. The webpage that set out that this plan was ad free was hyperlinked and not sufficiently accessible, being "two clicks away from the main body text … or one click away and at the bottom of a long webpage".  The ASA also noted that the home page and other webpages for the basic membership plans (those with ads) did not clearly set out or state that these included ads.  

What are the ramifications? When considering whether a claim is misleading, the ASA will look at recent market practice to determine consumers' expectations. Therefore, business' should be cautious when advertising products or services that move away from standard practice, such as the introduction of ads in paid streaming services. As the ASA views the inclusion of ads in paid streaming services key to a consumer's decision-making, this must be displayed clearly in a website's homepage and/or ad, rather than being accessed through hyperlinks. 

Placement of Gambling Ads on Digivans

What was complained about? A digital billboard ad for Coral, a sports betting company, was mounted on a parked "digivan" in Cheltenham during the Cheltenham Festival. On-screen text stated, "THE HEAD TO TOE TWEEDERS […] WE'RE HERE FOR IT [...] CORAL". The complainant challenged whether the ad's placement was irresponsible because the van was parked near two schools.

What was the ruling? Not upheld. Appropriate steps had been taken to comply with ad placement restrictions for age-restricted ads such as those for gambling. The digivans were not parked within 100 metres of a school and further, had no direct line of sight to a school. Additionally, the displays were only activated after 9am, meaning children would have been in school at this time. Therefore, the ASA found that under-18s were unlikely to see the ads nor comprise more than 25% of the audience.

What are the ramifications? This is unusual rulings from the ASA, whereby they have not upheld a complaint against a gambling company advertising close to schools. Whilst ruling reiterates the well-trodden rules that gambling adverts must not be placed within 100 metres of a school, the ASA here have also considered the impact of the ad being in "direct line of sight to a school" and since the ads were portable and digital, the ability for the ads to be activated after the school-run. As such, it provides helpful guidance to advertisers to show what positive steps can be taken to reduce the likeliness of under-18s seeing the ads or forming more than 25% the audience.

Is it really 60% off?

What was complained about? An ad for Debenhams contained text next to images of three products stating "Step into Spring with up to 60% off fashion […]” and "UP TO 60% off". The complainant challenged whether this was misleading as not all of the products were available at the discounted price. 

What was the ruling? Upheld. Only one of the products had the promotional price applied, and the ASA considered that consumers would understand the promotion to be applied to all of the products. In regard to the one product that had the promotion applied to it, the ASA noted it had not seen evidence of it being sold at the higher (undiscounted) price, meaning that Debenhams had "not demonstrated that the savings claim represented a genuine saving against the usual selling price of the item".

What are the ramifications? Retailers must be cautious as to which images and products they put next to saving claims. Even where a saving claim relates to all of the specific products shown in an ad, a retailer must still be able to show the pricing history of such products to evidence the savings actually made, as otherwise the ad may be viewed as misleading.