Email and the Law

Taking a risk in email marketing

We recently mentioned the advice given by the Committee of Advertising Practice (CAP) on what can and cannot be claimed in non-broadcast advertisements, including the best email marketing. Our suggestion was that you should still push the boundaries. However, throwing caution to the wind has never been the sensible option.

Whilst we all enjoy the big companies getting themselves into difficulties, what should be remembered is that historically it is they who have been willing to take a risk or two. Indeed, some have come up with exciting advertisements which, although they might have initially surprised us, have proved to be fully within the regulations.

Sheriff the law abiding WizBot from WizEmailWe have to accept that it only takes one complaint to set the wheels in motion. The Advertising Standards Authority (ASA) is not there to make judgements on what the public should and should not see but merely to decide if an advertisement complies with the regulations. Keep within them and it doesn’t matter if hundreds complain, apart, perhaps, for your sales figures.

When Nestlé gets more or less shredded over an advert which, on first reading at least, looks quite straightforward and compliant, there is a temptation to feel smug, but you should resist it. The decision was generated by just one complainant.

The principal in question was: “Marketers must take care when seeking to make a statement regarding the ingredients of a product that they do not make an implied nutrition claim by presentation.”

The judgement focused on an advert for two products in the same graphic. The first item was Shredded Wheat and there was the familiar statement that it contained no added sugar.

‘No added sugar’ is classed as a nutritional claim according to the EU Register, despite it being nothing more than an absence. This imposes requirements on the advertiser to the extent that the claim must be supported by documentary evidence showing that it complies with the conditions.

It was decided that the nutritional claim for Shredded Wheat was compliant. The difficulty lay with the second, and somewhat adjacent product.

Whilst most people might assume that if a cereal contains honey then sugar must be added to it. However, by placing Shredded Wheat, with the strap line of no added sugar, and Honey Nut Cornflakes side by side some readers might well think that the claim for one included the other.

In their decision on the case the ASA decided that the fact that the claim did not apply to Honey Nut Cornflakes should have been stated expressly.

Whether you or I agree with this decision in immaterial. It is what the regulators conclude which is important for us. 

This decision does not make it wrong to place similar items in the same advert. Indeed, the potential of a tried, trusted and popular product should be exploited and what better way of establishing the pedigree could there be?

However care needs to be exercised.

What seems odd is that the specific regulation is quite clear on the matter. If you are going for something a bit off the wall, and perhaps you should, read the regulations carefully.

>>More news on the ASA     >>More news on CAP



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