Background
Summary of Council decision:
Three issues were investigated, of which all were Upheld.
Ad description
A Facebook post on the Hull Live Facebook page and a landing page on the website Hull Live, www.hulldailymail.co.uk, dated 23 January 2023, advertising a heater from Argos and featuring affiliate links to buy the product:
a. The Facebook post stated, “People have been able to completely turn off their heating”. Beneath that was an image of the inside of an Argos store. Below the image was text that stated, “hulldailymail.co.uk The £32 portable heater that Argos shoppers say warms a room ‘instantly’”.
b. The landing page article featured the headline, “The £32 portable heater that Argos shoppers says warms a room ‘instantly’”. The subheading said, “Many say they have switched off their central heating since buying the device”. Underneath, text that was smaller than that used in the body of the article stated, “This article contains affiliate links, we may receive a commission on any sales we generate from it. Learn more”.
The first paragraph of the article stated, “People are flocking to praise a £32 portable heater which they say has meant they can turn off their central heating. As temperatures continue to stay freezing many have turned to the Argos heater as an alternative to other costly measures. And shoppers have been left impressed by the Challenge 2kW Ceramic Fan Heater which they say is not only effective but also cheaper than putting on the central heating”. Text in the later paragraphs stated, “Almost 600 shoppers have given it a five star rating on the Argos product page. And much of the praise came over how well it does at heating the home without leaving householders with bumper bills. One five-star review read: "Warming electric heater that is much cheaper to run than the central heating". A second said, "I bought it last month and I am happy I did, it consumes lesser energy and reduce my cost of putting on central heating".
Issue
1. The complainant challenged whether the claims in ads (a) and (b) to provide more economical heating than central heating were misleading and could be substantiated.
The ASA challenged whether:
2. the claims in ads (a) and (b) to heat a room “instantly” was misleading and could be substantiated; and
3. ads (a) and (b) were obviously identifiable as marketing communications.
Response
1.– 3. Argos Ltd said they had looked into the matter and were disappointed with the third-party advertorial. They explained that they had had no input into the article or contact with Reach plc. It was not sponsored or placed by Argos and they were not aware of it.
They explained that they did have an affiliate programme through a third party, which Reach had signed up to. However, the article was organic content written by the publisher using customer reviews and not information from the Argos website. The publisher did receive commission from any sale that resulted from a click through on the article, but otherwise Argos had no involvement with the article. They therefore could not comment on the content.
They said they would make clear to the third-party affiliate programme the need for affiliate advertising to be compliant with the Code. They would also update their terms and conditions for affiliates to prohibit claims that did not have full substantiation when linking to the Argos website. They had also requested that the article be removed.
Reach said the article was originally an editorial piece based on customer reviews of the product. It then was changed to an affiliate piece.
They explained after reviewing it in light of the complaint, that it did not meet their usual editorial standards and they did not possess the usual level of substantiation for such a piece. They also noted that as the article was about one product, they understood why there would be a query around it needing to be labelled as an ad.
They said that the article had been removed.
Assessment
1. & 2. Upheld
The CAP Code stated that before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
The Facebook post stated, “People have been able to completely turn off their heating” and the product could warm, “a room ‘instantly’”. The landing page article mentioned multiple times that the product had allowed consumers to turn off their central heating, at a time of “freezing” weather. It further said that using the product was, “cheaper than putting on the central heating” and that it could warm the room “instantly”.
The ASA considered that consumers would therefore interpret the ads as promoting a product that provided a viable alternative to gas central heating and that, due to the cold winter weather, provided heating more economically (“cheaper”). We also considered that the ads presented the heater as providing an economical source of heating which could effectively heat a typical room or home in a very short period of time (“instantly”).
We had not seen evidence that the product could supply the equivalent heating capabilities of gas central heating system, either in a single room or in a whole house, at a cheaper price and therefore save consumers money. We had also not seen evidence that the heater provided an economical (“cheaper”) form of heating which could effectively heat a typical room or home or that it could heat a typical room “instantly”. We welcomed the advertisers’ assurances that the article would be removed. However, because the claims had not been substantiated we concluded that the ads as they appeared at the time were misleading.
On that point the ads breached CAP Code (Edition 12) rules 3.1 (Misleading Advertising), 3.7 (Substantiation) 3.11 (Exaggeration) and 3.33 (Comparisons with identifiable competitors).
3. Upheld
The CAP Code required that marketing communications must be obviously identifiable as such, and must make clear their commercial intent if that was not obvious from the context. Paragraph I(h) of the Scope of the Code stated that the it applied to “advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that [were] directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist[ed] of direct solicitations of donations as part of their own fund-raising activities”.
The ASA first considered whether the content under investigation fell within the scope of the Code.
The links to the product throughout the landing page article ad were affiliate links. By including affiliate links in content on the Hull Daily Mail, Reach entered an agreement to be an affiliate marketer, i.e. to promote the products in exchange for payment as a result of clicks and/or purchases resulting from consumers clicking on those links. The affiliate links were therefore advertising by Reach on their own website that was directly connected with the supply of goods. Because of that, it was not relevant whether the advertiser whose products were linked to (in this case Argos) had any direct control over the way in which the affiliate links and related content were presented on the Hull Daily Mail. We concluded the links were ads which fell within Scope of the Code paragraph I(h). Affiliate marketers were jointly responsible along with the brands they were promoting for ensuring that the relevant advertising complied with the CAP Code.
The headline of the article made reference to the specific Argos product. The remainder of the article was dedicated to highlighting positive consumer reviews of the product, especially how it could save consumers money compared to traditional heating systems.
Based on the above, we considered the content of the article was wholly concerned with the promotion of the product which could be purchased via the affiliate links and that it was not editorial content. Therefore, the content of the article was, in its entirety, advertising for the relevant product and because it and the original Facebook post that led to the landing page, was not obviously identifiable as such and did not make clear their commercial intent it breached the Code.
On that point, the ads breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
Action
The ads must not appear again in the form complained about. We told Argos Ltd and Reach plc not to state or imply that the heater provided a viable and cheaper alternative to gas central heating and we told them to ensure that adequate evidence was held to support all objective claims, and not to repeat the claim, “warms a room ‘instantly’’. In addition, we told them to ensure that affiliate marketing communications, including posts that led to them, were obviously identifiable as such and made clear their commercial intent, if not obvious from the content.
