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.
Many marketers use footnotes or small print to qualify more prominent claims. To help marketers understand when qualifications are likely to be required, and the level of clarification needed, CAP has issued Advertising Guidance on the use of qualifications in ads. The guidance below should be read in conjunction with this Advertising Guidance. As explained in the guidance, marketers should be aware that qualifications may need different levels of prominence, and it may not always be sufficient to include qualifications in the small-print only.
Marketing communications must not materially mislead or be likely to do so (Rule 3.1). Qualifying information must: be included where it is material to the consumer’s understanding of the primary claim, or marketing communication as a whole (rule 3.3); must not contradict the primary claim being qualified to the extent that consumers are likely to be misled (rule 3.9); and must be presented clearly with an appropriate level of prominence (rule 3.10).
Qualify claims where necessary
Qualify, don’t contradict
Present qualifications clearly and with sufficient prominence
Qualify claims where necessary
Often, qualifications are necessary to ensure that ads do not mislead. They can provide additional pieces of information that ensure consumers properly understand the headline or primary claims being made.
Marketing communications should include information about important limitations or conditions which apply to the product or service advertised. The ASA upheld complaints about an ad for a radiator which included the claim “25 year guarantee”. The guarantee only covered the brackets and consumables, and not the radiator, and the ASA considered that this was a significant limitation which should have been made clear in the ad. Because the ad omitted that information, it was considered misleading (Sunny Showers Ltd, 28 March 2018). See also Holiday Extras Ltd, 21 June 2023.
Headline claims may be considered misleading if material information is not included in the ad. the claim “use rapid public charging to reach 80% charge in around 30 minutes with a 150 kW fast-charging system” was considered misleading and unsubstantiated because the ad omitted material information about the factors that could significantly affect the advertised charging time and the limitations in relation to the availability of 150 kW chargers in Northern Ireland and across the UK (Toyota (GB) plc, 28 June 2023).
Additional requirements apply to promotional offers. For guidance on the information which should be included when running promotions, see Promotional marketing: terms and conditions.
Qualify, don't contradict
Code rule 3.9 states that qualifications may be used to clarify claims, but they must not contradict those claims to the extent that consumers are likely to be misled.
The ASA investigated complaints about a website which made the claim “FREE UK 1-7 Day DHL Tracked Shipping Today Only”. Whilst the individual product page stated, in small text near the bottom of the page, that its delivery could take up to 25 days, the ASA considered that this was likely to contradict rather than clarify the banner’s wording, and was likely to mislead (Ellanoir Luxury 2021, 03 November 2021). Similarly, the ASA considered consumers were likely to interpret the claim “20% off all orders over £200” to mean that, when using the code provided, they would receive 20% discount on any order over £200, which was reinforced by the wording “SITEWIDE” and “all orders”. Because this could not be used with other discounts, the ad was considered misleading. Even if the ad had made this clear, this would have contradicted the claim (Screen with Envy, 28 September 2022).
Complaints about an ad which featured a full-length shot of a model wearing a dress, alongside the claim “SHOP NEW IN FROM £8” were upheld in 2017. Although the ad stated “* DRESS SHOWN £35”, this appeared in very small text in the left-hand bottom corner of the ad, and the ASA considered that consumers were unlikely to notice it. The ASA considered that, even if some consumers had seen the qualification “* DRESS SHOWN £35” it contradicted, rather than clarified, the headline claim (PrettyLittleThing.com, 04 September 2017). See also In The Style, Fashion, 06 January 2021.
Present qualifications clearly and with sufficient prominence
Rule 3.10 states that qualifications must be presented clearly. In general, where information is material to a consumer’s understanding of the product or service on offer, it should be presented in a way which can be easily seen and read by the average consumer.
Sections 5, 6, 7, 8 and 9 of the Advertising Guidance on the use of qualifications in ads includes details of some of the factors which are likely to be considered when assessing whether a qualification is sufficiently clear and prominent. These factors include the size of the qualifications, their positioning in the ad, the significance of the qualification, the content and layout of the rest of the marketing, the nature of the medium, and the prominence of the primary claim.
The guidance also provides a ‘qualifying ladder’ to help marketers determine whether information should be in the headline, sub-heading, body copy, or whether it is sufficient to include these in footnotes. Marketers should select an appropriate level of prominence relative to the position of their primary claim. The main determinate of this is the importance of the information contained in the qualification to consumers’ understanding of the primary claim; the more important the qualifier, the greater prominence is likely to be necessary. Minor qualifications, especially those that are clearly linked to the claim they qualify (for example, with an asterisk) are likely to be acceptable in footnotes, but significant qualifications may not be.
In 2020 the ASA upheld complaints against press ads for Surface Pro and iPad contracts, which stated a monthly price in the headline claim. The small print stated that upfront costs applied, and that the monthly price would increase after three months. However, because those price claims were placed within the body of a large amount of small print, the ASA considered that these were insufficiently prominent and were likely to be overlooked by consumers. Instead, the ASA considered that this information should have been included in the main body of the ad (Telefonica UK Ltd, 08 July 2020).
Including qualifications at the end of an email or webpage, only viewable by scrolling down, is unlikely to be sufficient. Footnotes should be prominent and clearly linked to the claim they qualify (Official iPhone Unlock Ltd, 16 May 2018). Vertical qualifications are less likely to be acceptable as they are more difficult to read than horizontal ones. Important qualifications should not be hidden in long footnotes, and whilst there is no specific font or size that marketers should use for small-print, qualifications included in small-print should not be presented in a text size, font, or colour which makes them difficult to read. Marketers should also take media characteristics into account; printed ads that consumers handle directly generally allows a greater opportunity for consumers to read qualifications, for instance, those contained in a footnote. That is less likely to be the case for media or ad types viewed from a distance (for example, posters).
Marketers should also note that BCAP has produced separate guidance on the requirements for the use of superimposed text in TV advertising.
See also: Misleading advertising.