Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Rule 3.43 of the Code states that marketers must not take unfair advantage of the reputation of trade marks, trade names or other distinguishing marks of competitors. Rules 3.50 and 3.51 state that marketing communications must not claim that the marketer or their products have been approved, endorsed or authorised by a public or private body if they have not and must not claim to be a signatory to a code of conduct if they are not. Marketers should therefore not imply that their product or service is endorsed, supported or approved by an official or government body unless, of course, it is. Implied endorsement can be as simple as including official bodies’ logos or names in an ad but can also take the form of more subtle suggestion.
Prior to the inclusion of the specific prohibitions set out in rules 3.50 and 3.51 the ASA upheld complaints that an ad implied the marketed product had been endorsed by the U.S. Government (National Fuelsaver Corp, 16 April 2008). The ad claimed “U.S. Consumer Protection has confirmed the fuel saving described in this advertisement … the U.S. government concluded: ‘Independent testing shows greater fuel savings with the Petrol Saver than the 22% claimed by the developer …’”.
In 2006 an ad for the Great British Circus was deemed to have breached the Code. It included the claim “RSPCA inspected” alongside an image of two circus performers giving a 'thumbs-up'. The ASA concluded that the ad misleadingly implied the RSPCA had approved the circus and the use of animals as performers in the circus (Great British Circus, 20 September 2006).
A year earlier, Hospital Information Services used the e-mail address www.nhstrust.com and argued that that would not be understood as an implication of connection with the NHS because the “.com” suffix made clear that it was for a commercial company. The ASA considered that readers would assume the web address "www.nhspages.com" was connected to the NHS and, because it was not, the use of the website address in the ad was misleading and should not be used (Hospital Information Services, 14 September 2005). The ASA has adjudicated against a drinks manufacturer for misleadingly referring to the NHS. The ASA considered that the claim “NHS Family Choice” implied that the marketed product, Popzone, had official NHS endorsement whereas the claim had been made solely on the basis that the marketer’s ads had been chosen for inclusion in NHS Family Choice magazine (Hall & Woodhouse Ltd, 16 March 2005). The ASA also considered that the ad misleadingly implied the product was healthier than it was. The use of the NHS logo in leaflets advertising a legal service for accident compensation was also considered by the ASA to misleadingly imply endorsement by the NHS (Nationwide Accident Services, 12 September 2007).
Sometimes a misleading impression can be created by a combination of elements, not just one individual element. The ASA considered that a guide to the opening ceremony for Holyrood House implied it had the official backing of the Queen because the "H" in "Holyrood" was decorated with a crown, the guide claimed "Her Majesty the Queen", the editorial synopsis included messages from the Queen; the distribution list contained many official recipients including every foreign embassy in the UK and British embassies worldwide (Ivy Communications Ltd, 12 January 2005).
Similarly, the ASA considered that an ad for a windows and conservatories fitter was misleading, because it claimed “Police Approved”, "Yorkshire and Derbyshire Crime Reduction Initiative" and "Home Security Award", in conjunction with a black and white chequered border to the ad (Yorkshire Windows and Conservatories, 18 July 2007).
The use of trade bodies’ logos and BSI (British Standards Institute) kite marks is frequently strictly controlled by the terms of membership or registration and, without explicit permission, marketers should not use such logos or marks (Astra Windows Manufacturing Ltd, 4 December 2002; HR Removal and Storage, 25 October 2006, and Enhance Medical Centre Ltd, 16 January 2008).
In 2007, the ASA upheld a complaint about the claim “3 out of 4 doctors would recommend Flora Pro-Activ mini drink … Need we say more?” (Unilever UK Ltd, 31 October 2007). It has also upheld complaints about claims such as “Colgate Total Toothbrush. The brush recommended by 90% of dental hygienists” and “More than 80% of dentists recommend Colgate … Colgate, used and recommended by most dentists”. (Colgate Palmolive (UK) Ltd, 17 January 2007). The ASA considered the advertisers had misused the survey results or wrongly implied those surveyed would recommend their products exclusively. See ‘Use of Surveys’.
Marketers should be aware that rule 12.18 states that health professionals must not endorse medicines. As well as upholding the complaint against it, the ASA criticised Colgate Palmolive for implying professional endorsement of the whole Colgate brand, including toothpastes that were licensed medicinal products. A couple of months later, Colgate made a similar complaint about GlaxoSmithKline and the ASA concluded that that advertiser had also used a health professional to endorse its medicinal products (GlaxoSmithKline UK Ltd, 14 March 2007).
In ads for food, it is not acceptable to make health claims that refer to the recommendation of an individual health professional. Health claims that refer to the recommendation of an association are acceptable only if that association is a health-related charity or a national representative body of medicine, nutrition or dietetics (Rule 15.6.3).
See ‘Testimonials and Endorsements’, ‘Denigration and Unfair Advantage’ and ‘Exploitation of Goodwill’, ‘Medicines: Celebrities and Health Professionals’, ‘Medicinal Claims’ and ‘Sensitive Teeth’.