Advertising responsibly during coronavirus (COVID-19)

Advertising responsibly during coronavirus (COVID-19)

Commercial analysis: Katrina Anderson, associate at Osborne Clarke, discusses what advertisers should do to ensure their promotional materials related to the coronavirus (COVID-19) pandemic are not misleading, socially irresponsible or aggressive. She also considers what advertisers should take into account in respect of stock availability and how regulators such as the Advertising Standards Authority (ASA) and the Competition and Markets Authority (CMA) have responded to the situation.

Why is it important for advertisers to consider situational vulnerability in the context of their target audience?

The Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277 say that we need to consider how the average consumer would respond to the advert. When the target audience of the advert has a known vulnerability, this needs to be taken into account. The ASA has said that consumers may be situationally vulnerable as a result of coronavirus, for example, because they are bored and lonely or anxious about their health. This ‘situational vulnerability’ needs to be taken into account when assessing if the advert complies with the CPUTR 2008, SI 2008/1277 and advertising codes (ie the CAP Code and BCAP Code).

For example, elderly audiences and people at higher risk from coronavirus will be much more anxious about their health than they would otherwise be, and therefore, brands that deliver health messaging targeted at those audiences will need to consider how those messages will be perceived by those audiences at this time as part of their legal analysis.

What do advertisers need to consider in respect of their existing messaging as a result?

Advertisers should consider:

  • how vulnerable audiences will interpret the advert—could it be misleading, aggressive or otherwise contrary to the general prohibition and/or the CAP Code?

  • if the advert is socially irresponsible—eg does it encourage non-compliance with government guidance or other socially irresponsible behaviour, such as stockpiling?

Are there any blacklisted practices that are more relevant now?

Certain practices are always considered unfair and hence blacklisted under CPUTR 2008, SI 2008/1277, Sch 1. Some of these are particularly relevant at this time, including:

  • trader hardship stories which explicitly say that a business is at risk if the consumer does not buy the product

  • fake ‘closing down’ sales

  • falsely presenting a product as a cure for disease or as reducing the risk to a consumer’s personal security

  • displaying a trust mark without authorisation

  • misrepresenting the availability of after-sales support

What do advertisers need to consider in respect of stock availability?

Advertisers need to do a reasonable pre-estimate of availability before advertising a product. This needs to take into account the impact of coronavirus on demand. If this assessment identifies that there is likely to be insufficient stock to meet demand, the advertiser needs to make this clear in the advert. Where possible, the advertiser should also take the advert down as soon as possible once stocks run out.

Does that mean all pre-planned advertising on high demand products should be stopped?

No, advertising can still go ahead. However, it is particularly important to follow the steps outlined above when the advertiser is aware that the product is in high demand and stocks may be insufficient.

Can advertisers talk about coronavirus in their advertising?

Yes, but it may be more difficult for certain categories such as gambling or alcohol which are strictly regulated. In any event, the advertiser needs to consider the coronavirus message in the context of the whole advert, including how it interacts with established messages such as brand taglines, and make sure it is not misleading, aggressive or socially irresponsible.

Can advertisers mention that their business is struggling as a result of coronavirus?

Yes, but they need to make sure this does not amount to a trader hardship story, ie explicitly informing a consumer that if they do not buy the product or service, the trader’s job or livelihood will be in jeopardy), which is an unfair commercial practice blacklisted under CPUTR 2008, SI 2008/1277, Sch 1.

How have the regulators responded?

The CMA has set up a task force to enforce against examples of misleading claims and excessive pricing.

The ASA has set up a quick reporting tool and is promoting it on Twitter and generally encouraging customers to report problematic coronavirus-related advertising.

Interviewed by Barbora Kozusnikova.

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