‘Misleadingness’ is a huge part of the ASA’s work. The ASA often requests evidence from marketers in support of their claims, to establish if those claims are likely to mislead consumers. Many types of objective claims may need to be backed by substantiation, from claims about the efficacy of products, to prices, comparisons with competitors, and environmental benefits.
Here are a few tips for ensuring your substantiation stacks up:
1. Always hold your evidence BEFORE making the claim
The CAP Code requires that advertisers must have documentary evidence to prove claims before distributing or submitting a marketing communication for publication (Rule 3.7). So, advertisers should always be able to respond to the ASA and hold substantiation for claims without delay (Rule 1.7).
2. Customer first - evidence claims as your audience will understand them
The ASA always considers how the average consumer will likely understand claims made in marketing communications. So, in the event of a complaint, it will expect evidence to support how claims are likely to be interpreted by viewers, rather than what they are intended to mean.
For example, the ASA recently ruled that claims by a bank stating “Unlike the big banks we’re not closing our branches”, as they would likely be understood by viewers, were not adequately supported by the evidence.
3. The bolder the claim, the higher the level of evidence needed
Whilst marketers should hold relevant evidence for any objective claims capable of substantiation, not all claims are created (and supported) equally. Some claims must be supported by a particularly high level of substantiation, such as absolute environmental claims (e.g. in this ruling for 4AIR LLC) and breakthrough health and beauty claims (e.g. Helen Taylor Aesthetics Ltd).
4. It’s all in the relevance of the evidence…
The ASA requires that evidence, such as product testing or clinical trials, is directly relevant to the advertised product and it’s intended use. It should reflect the target audience for an ad too.
Last year the ASA discounted substantiation put forward for claims that plasma injections could treat damaged tissue, ligaments or muscles, because the evidence related to studies on tendon problems and osteoarthritis.
In another ruling, the ASA found some evidence provided in support of claims in the ads relating to removing pesticides from fresh produce had not been conducted on everyday fruits and vegetables. It also considered a study based on women in the United States undergoing fertility treatment did not represent all women seeking to get pregnant, and specifically not those whom the ad addressed in the UK.
In vitro studies or testing on animals can form an important part of research in an area, but marketers making efficacy claims for products intended for humans should not rely solely on them.
5. Robust methodologies will avoid apologies
The ASA will assess the strength of methodologies of clinical studies or testing that supports marketing claims.
When considering evidence for claims that a nasal product could protect against viruses, it held concerns about the methodology of a clinical trial. The control group did not receive a placebo treatment, which meant the participants were not blinded and it was unclear how the participants were randomised. The study was also not peer reviewed or published in a mainstream scientific journal.
In another case relating to efficacy claims that a product could stimulate hair growth, the ASA considered that self-reported, subjective responses to a questionnaire was not sufficient evidence for such claims.
6. Clinical results: the conclusion shouldn’t be an illusion
Problems can arise if marketers misinterpret the outcome of studies on which claims are based, which can lead to making unsupported claims or exaggerating efficacy.
In a ruling relating to efficacy claims for a medical device, the ASA considered the results of a controlled trial did not demonstrate any statistically significant difference between the outcomes for the group using the device, and the control group using an inactive device.
In another investigation of claims that a programme could aid ME/CFS recovery, the ASA also found that a peer-reviewed clinical study put forward as evidence stated that it had been difficult to draw meaningful conclusions from the data. This meant this evidence in both cases was not considered adequate to support the claims.
In short - to avoid tribulations from trials - marketers should carefully build claims around the findings of research or testing, and genuinely reflect the results.
If you need more specific advice on your claims or the type of substantiation you hold, our Copy Advice team are on hand to provide free, bespoke advice on your non-broadcast ads.
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