Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
This Ruling forms part of a wider piece of work on Lead Generation Marketing, identified for investigation following intelligence gathered by the ASA.
See also related rulings published on 1 February 2023.
Ad description
A display ad for Experts in Money, seen in August 2022, on the Express website, featured a cropped image of a woman holding a document. Text below that stated, “People Born 1941-1971 are due a large surprise this month” and beneath that was a box with text stating “learn more”, which linked through to a page on the Experts in Money webpage.
Issue
The ASA challenged whether:
1. the ad falsely implied that the marketer was acting for purposes outside its trade, business, craft or profession; and
2. the claim “People Born 1941-1971 are due a large surprise this month” was misleading and could be substantiated.
Response
1. Peak Performance Advertising t/a Experts in Money said the purpose of the ad, in line with their role, was to highlight an unknown product to potential consumers, and then to direct those consumers to regulated firms who could assess the consumer’s needs. They said they had never portrayed that their relationship was directly with the consumer. They considered that their relationship with the regulated firm was made clear and that the text “This is an advertorial and not actual news articles, blog, or consumer protection update” supported that.
2. Experts in Money said that their ad had been designed based on research to target individuals who may have been entitled to an insurance plan that they had not known about, and they had used language and images that were purposeful to the consumer and also their customer.
They said they had used the age date range to avoid consumer confusion at an early point in the process, as the product was age prescriptive and there was a target market. They said because of GDPR and the ‘native’ nature of the ad they were unable to target consumers of specific ages. Therefore the use of the age range allowed the ad to be targeted appropriately and also protect consumers from pursuing a product that would not be accessible to them.
They said the ad’s focus on the payment was to make consumers think about their financial serviceability and security.
Whilst they acknowledged that including product details within an ad would have been preferable, they said this was neither the purpose of the ad, nor acceptable in their business role. They said that the nature of the ad meant that it was not possible to carry product details or product particulars without becoming a ‘regulated promotion’. They considered that the subsequent steps of the ad clearly made consumers aware of the product and would have managed any consumer expectations associated with it, and said those subsequent steps also provided consumers the opportunity to withdraw from the process at any time.
Assessment
1. Upheld
We considered that consumers would understand from the image of a woman holding a document that resembled a financial statement along with the claim “People Born 1914-1971 are due a large surprise this month” that the ad was highlighting a financial benefit that people born within those dates could access, though it was not clear from the ad what that was, or how they could get it. We considered that consumers would understand from ‘Learn more’ that they would be provided with that information.
We noted that the link directed consumers to a landing page for Experts in Money which showed a number of images. The images included a woman holding a cheque, a letter titled “approved” and text including “congratulations”, and “Approved For: £6,100”. We considered that these images, accompanied by headline text “Adults over 50 Could Get Approved for up to £10,000 Thanks To A ‘Little-Known’ Policy (If They Do This)” would be interpreted by consumers to mean that, if they followed the instructions as guided by the web page, they could be approved for a policy and receive up to £10,000 through the post, as demonstrated by the images. We considered that the text “instant approval policies available” implied that Experts in Money were capable of providing the policies directly.
However, we understood that the company was principally a lead generation company, whose purpose was to gain consumers’ personal information and contact details and disseminate those details to other organisations. We acknowledged that the footer of the website stated, “THIS IS AN ADVERTORIAL AND NOT AN ACTUAL NEWS ARTICLE, BLOG, OR CONSUMER PROTECTION UPDATE” and “Our disclaimer is that this site does receive compensation for product reviews and referrals or purchases made through our links”. However, we did not consider that this counteracted the overall impression of the website that it provided the opportunity to apply for a policy that would pay out a significant amount of money.
Because the ads did not make clear they were for a lead generating company, we concluded that the ad falsely implied the marketer was acting for purposes outside their trade, was misleading, and breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications) and 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
2. Upheld
We considered that consumers would interpret the claim “People Born 1914-1971 are due a large surprise this month” that people who had been born at any time between those dates would receive something positive that they had not been expecting. We considered that when the claim was viewed along with the image that showed a woman holding a document which resembled a financial statement, consumers would understand that the ‘surprise’ was a sum of money. We acknowledged that the ad was designed to target individuals who were born between 1914 and 1971. However, we did not receive any evidence to substantiate the claim itself. In addition, as above, we understood that the ad linked through to the landing page which stated, “If you are currently a UK Citizen, were born between 1941-1971, Live in England, Wales, Northern Ireland or Scotland then you may be eligible for a £10,000 life insurance policy”. Therefore, the “surprise” was not a sum of money, but in fact appeared to be a life insurance policy that a consumer may have been eligible for, depending on a number of factors. For those reasons, we therefore concluded the ad was misleading.
On that point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.7
3.7
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.
(substantiation).
Action
The ad must not appear in its current form. We told Peak Performance Advertising LLC t/a Experts in Money not to claim or imply that they were acting for purposes outside their trade or business and to make clear the commercial intent of their marketing. We also told them to ensure they did not omit material information and that they held evidence to substantiate their claims.
