Two flooring companies have recently fallen foul of the ASA.
Adam elaborates on why the negative publicity or the risk of a day in court just isn’t worth it. Adam Bernstein explores.
IN a competitive world every business needs to advertise. However, with the need to advertise so comes the obligation to do so fairly and in compliance with the law and rules – duties that apply to those selling to both consumers and other businesses.
Consider the trouble with the Advertising Standards Authority (ASA) that two flooring-related firms have found themselves in recently.
Back in August 2022, UK Flooring Direct was hauled over the coals in relation to its website, ukflooringdirect.co.uk 1. At the end of March 2022, a series of images of different types of flooring were accompanied by text showing ‘was’ prices compared to ‘Now only’ prices.
Further text relating to each type of flooring made claims concerning savings, stating that consumers could save from 20% to 58% on various products. Text at the top of the homepage stated, ‘Up to 60% off, plus…Extra 10% off…Use code: APR-10…Offer ends 11 April’ and was accompanied by a countdown timer showing the apparent time left in the promotion.
Tapi, a floorings and carpet retailer, challenged whether the savings claims were misleading and could be substantiated; and if use of the countdown timer misleadingly implied that the promotion was time limited, because they understood that the extra discount offer would appear again soon after the countdown ended. The ASA agreed on both counts and banned the advert in its current form.
And at the start of 2023, Carpetright also found itself in hot water 2. In this instance, a series of eight banner ads and pages on Carpetright’s website, seen in January and February 2022, detailed claims over, for example, ‘up to half price sale on a choice of carpets’, ‘up to half price’ over images of carpets, wood flooring, vinyl, luxury vinyl (LVT) and laminate, and ‘up to half price sale on a choice of floors and beds ends Tuesday (2 Feb)’.
Tapi challenged whether the savings claims were misleading because they understood that only a very small proportion of products were available with the advertised discount and the products had not been sold at the higher undiscounted prices.
The ASA upheld the complaint and banned the adverts. It told Carpetright to ensure when making savings claims it could establish a genuine usual selling price and show that a significant proportion of products had the maximum saving.
Beyond problems with the ASA is the impact of the court of public opinion. Consider the report in MailOnline – ‘Billboard advert for flooring firm with a woman next to slogan ‘it’s so easy to lay’ is removed after campaigners said it ‘perpetuates the culture of rape’. 3 ‘ The advert from Garage Floors Direct in Manningtree, Essex, ‘prompted the charity Suffolk Rape Crisis to write an open letter to the shop and poster company Billboard Media demanding that the ‘sexualised’ advert be taken down, claiming it fuelled ‘the perpetuation of violence’ towards women.’ The company took the advert down within 24 hours and donated the billboard space to Suffolk Rape Crisis 4.
The rules
Starting with the ASA, the UK’s independent regulator of advertising across all media, it applies two codes of practice – CAP and BCAP Codes – which it uses to regulate non-broadcast and broadcast advertising respectively.
The Consumer Rights Act 2015 (CRA) is also relevant as it sets out consumers’ rights and remedies for defective goods, services and digital content. Under the law, any public statements made by a trader about goods (including those in advertising) will be relevant in assessing whether they comply with the quality standards set out in the CRA.
For services, anything that is said or written to the consumer by the provider about it or the service will be deemed to be part of the contract for the service, provided that the consumer takes it into account when deciding to enter the contract or makes any decision about the service after entering into the contract.
Traders should also be aware of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) as they prohibit any unfair, misleading and/or aggressive commercial practices.
Further, they also set out 31 ‘blacklisted’ practices that are expressly banned; these include displaying a quality mark without authorisation, falsely claiming to be a signatory to a code of conduct, and falsely stating that a product will be available for a very limited time in order to obtain an immediate decision.
While consumers are aware that they have rights, advertisers should note that businesses have protection too in the form of the Business Protection from Misleading Marketing Regulations 2008 (BPMRs). These prohibit misleading business-to-business marketing communications.
It’s important to note that the BPMRs also set out the conditions under which comparative marketing communications (to consumers or businesses) are permitted, these rules are incorporated into the CAP and BCAP codes which the ASA enforces.
Responsibility for enforcement of the CRA and CPRs sits with the Competition and Markets Authority (CMA) and Trading Standards while responsibility for enforcement of BPMRs sits with Trading Standards (though the CMA has the power to enforce the BPMRs if it wishes).
Activities allowed
The CAP and BCAP Codes cover a number of specific areas and traders would be advised to review the relevant code (they can be easily found online) when planning any advertising. As a general rule, adverts must be identifiable as adverts, not be misleading and not likely to cause harm or serious or widespread offence.
The two codes set out particular restrictions depending on, among other things, who the advert is targeting and the product that is being advertised. For example, advertising directed at children has specific restrictions attached to it, as does advertising related to gambling, alcohol, food, medical products, motoring or tobacco products. Particular rules also apply to comparative advertising.
Because the CPRs prohibit unfair, misleading and/or aggressive commercial practices, the ASA will take factors identified in CPRs into account when it considers whether a marketing message breaches the CAP or BCAP Code.
The rules make an advert misleading if it is likely to deceive and likely to cause buyers to take ‘transactional decisions’ (ie buy, keep, pay for something or enter into a contract) that they would not otherwise have taken. It’s worth remembering that an advert can mislead not just by including false information, but also by omitting to include important information that allows the consumer to make an informed decision.
While it’s less likely, there’s another element of the rules that a trader should consider – that of aggression. Indeed, an advert will be deemed to be aggressive if it is likely to significantly impair the average consumer’s freedom of choice through harassment, coercion or undue influence and, as a result, consumers are likely to take transactional decisions they would not otherwise have taken.
An advert may also be deemed to be ‘unfair’ if it goes against the requirements of ‘professional diligence’ – the standard of care expected and general principle of good faith in the advertiser’s field of activity – and is likely to materially distort the buying behaviour of consumers in relation to the advertised goods or services.
Other fields
While most consider the rules apply to print, radio and TV, traders would do well to remember that the ASA rules also apply to social media. Adverts and social media posts must be clearly identifiable. So just as with traditional media, the ASA will consider complaints about adverts on social media too. The same applies to promotional activities such as competitions.
Traders who use sponsorship to promote their activities need to note that this too is regulated in the same way as any other form of advert.
The penalties for breaching the law
With the principles established, the natural question is what happens if a complaint is upheld? The answer is simple – if the ASA finds that an advert breaches the CAP or BCAP Code, it will ask the advertiser to withdraw or change it.
While the ASA cannot impose fines, the ASA does have other sanctions at its disposal which include publishing its decisions, asking publishers and media owners to refuse space for an advertisement until it has been changed. It can also refer the advertiser to Trading Standards or the CMA, who can seek an injunction through the courts to prevent the same or similar claims being made in future adverts.
But while some may consider the ASA toothless – it’s not; engaging in a practice that is banned under CPRs or placing misleading advertising prohibited by BPMR is not recommended as these are criminal offences punishable by a fine, up to two years in prison or both. Consumers also have civil remedies against entities that breach CPRs, these include unwinding the relevant transaction or receiving a discount. This legal remedy could prove very expensive for a trader.
It’s important to remember that anything said in an advert may be taken into account and used when a consumer makes a claim under the CRA that relates to the goods, services or digital content in question. Traders need to remember that consumers can reject goods that are defective (and receive a refund) within 30 days of delivery (or installation, if that is part of the contract). If a consumer does not reject defective goods, they may require that the goods are repaired or replaced and, if this is not possible, the consumer has the right to a reduction in price of the goods. Consumers can request that defective services are performed again and also have a right to a reduction in the price of defective services.
Summary
The lesson is, and ought to be, play fairly. The one-off gain from breaking the rules really isn’t worth the negative publicity or the chance of a day in court.
Adam Bernstein is an independent columnist
- https://www.asa.org.uk/rulings/uk-flooring-direct-ltd-a22-1150792-uk-flooring-direct-ltd.html
- https://www.asa.org.uk/rulings/carpetright-ltd-a22-1146469-carpetright-ltd.html
- https://www.dailymail.co.uk/news/article-12679245/Billboard-flooring-woman-slogan-easy-lay-removed-campaigners-culture-rape.html
- https://www.bbc.co.uk/news/uk-england-suffolk-67370708