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This article originally appeared in Bristows' Monthly Technology, Media and Telecommunications e-newsletter, The Cookie Jar.

Two areas that have been the focus of the Advertising Standards Authority's attention over the past year are price comparisons and 'green' claims.  The ASA is responsible for regulating the content of adverts and direct marketing materials.  The general regulatory requirements for advertisements are detailed in the CAP Code (for non-broadcast adverts) and BCAP Codes (for radio and television adverts). The most basic requirements for any advertisement are that it should be legal, decent, honest and truthful, and the advertiser should be able to substantiate all claims (including any implied claims) made in the advertisement.  The Codes also include specific provisions in relation to comparisons with named competitors' products, price comparisons and environmental claims and the ASA has produced separate guidance in relation to these areas. 

Price Comparisons

In the economic downturn, companies are battling even harder to win and retain customers by identifying their offerings as 'better value' than those of their competitors.  Comparative adverts, if accurate, can help consumers get the best value for money.   But exaggerated, unclear comparisons can be misleading.

Comparative claims in advertisements are fairly heavily regulated by legislation dealing with consumer protection and unfair practices.  The Codes require advertising to be legal (and therefore compliant with such legislation) and the Codes' requirements reflect many of the provisions of the legislation. 

The following principles, identified in the CAP Code and in related ASA adjudications decided over the last year, give guidance on the 'dos and don'ts' of including price comparisons in adverts:-

• DO - advise consumers of the basis on which the comparison was made. 
  In an advert for Asda, comparing 5,880 Asda products with equivalent Morrisons products, although Asda had stated that the comparison had been independently verified by mySupermarket.co.uk, consumers were not able to confirm the basis on which the comparison had been made using mySupermarket.co.uk because no details were given of the products compared.   Asda was therefore found not to have enabled consumers to verify the accuracy of comparisons as required under the Codes.
• DON'T - exaggerate the availability of the benefit of a price claim likely to be obtained by consumers.  
  In an email advert by Zavvi, none of the products shown in that email as being priced "from £1.95" was available at £1.95.  The advert was found not to comply with the Codes.
• DO - make any price claim clear.
  For example, a claim that "Your weekly shop costs less at Asda"  was found to be misleading because it was not clear whose weekly shop the advert referred to  - a family of four, a couple or a single person?; and
• DON'T - compare products that are not equivalent.
  This requirement precludes advertisers comparing the prices of its goods that are on sale or special offer with a competitor's products that are full price. 

Green Claims

The ASA has been concerned to avoid consumers being confused or mislead by 'greenwash': vague or unsubstantiated claims about a product or a company's green credentials.  The ASA has taken an interest in, for example, claims that products are carbon neutral and claims about use of renewable energy sources.

Some of the key principles to be followed when making 'green' claims are set out below:-

• DON'T - make a factual claim unless you can support it with evidence.
  By testing the product and keeping a record of tests, an advertiser should be able to demonstrate that its claims in relation to a product are honest and truthful;
• DO - make clear if there is a significant division of scientific opinion
  or where evidence is inconclusive in relation to a particular environmental issue that is relevant to your advert; 
• DON'T - use vague terms
  without qualification, unless evidence to back up the claims can be produced.   The use of terms such as 'sustainable', 'green', 'non-polluting' and 'environmentally-friendly' has been found to be misleading where it is not made clear to what those terms refer.  Using qualified or comparative claims such as 'greener' and 'friendlier' have been acceptable if clear and substantiated;
• DO - make the basis of any comparisons clear.
  If, for example, an advert for a car claims that it is 'better for the environment' or 'has lower emissions', it should be clear whether that is in relation to equivalent products or the advertiser's previous models of the same car; and
• DON'T - make absolute claims such as 'carbon neutral', 'wholly recyclable' or 'zero guilt' in relation to a product without being able to substantiate them.