Who: Committee of Advertising Practice (“CAP”)
Where: United Kingdom
When: 17 January 2019
Law stated as at: 29 January 2019
What happened:
On 17 January 2019, CAP issued an “Enforcement Notice: Misleading “Faux Fur” claims in clothes and accessories” (. In the Enforcement Notice, CAP confirmed that if advertisers failed to clean up their act by 11 February 2019, the ASA would take targeted enforcement action against non-compliant advertisers, in respect of ads for products containing real animal fur that are falsely marketed as “faux fur” or “fake fur”. Such enforcement action includes the ASA referring to its legal backstop (i.e. Trading Standards).
The Enforcement Notice follows two recent high-profile ASA adjudications against Boohoo.com and Zacharia Jewellers respectively, who advertised items purported to contain fake fur, when in reality, they contained real fur.
In the Boohoo.com adjudication, in its evidence to the ASA, the online retailer asserted that it had in place robust quality control measures (including inspecting the base, feel and consistency of the item, visual inspection of the hairs especially the ends, and completing a burn test) to ensure that no real fur products slipped through the net. Indeed, the online retailer’s supplier had also signed a supplier acknowledgement form committing to not supplying any items to Boohoo.com that contained real fur.
The Zacharia Jewellers adjudication concerned a product listed for sale by a marketplace seller on Amazon, who in their response to the ASA stated that they had been informed when they bought the products from China that they were faux fur. However, despite the measures implemented by each respective retailer, the ASA concluded that the evidence provided by the Humane Society International (the complainant in both adjudications) proved that the respective items contained real animal fur and therefore each ad was misleading by advertising the items as containing faux fur.
Within the Enforcement Notice, CAP also set out some guidance for advertisers to identify the difference between real fur and faux fur. In particular:
- checking the underlying material at the base of the fur;
- checking the tips of the hair to see if they taper; and
- the ‘burn test’ (animal fur singes, but faux fur melts).
CAP also recommends that advertisers should (amongst other things), be as transparent as possible about the materials in the items sold on their website, testing the products before putting them on sale (noting that touch alone isn’t good enough and lab tests or the three-stage test is best), and cease trading with suppliers who make repeated mistakes in supplying real fur that they claim is faux.
Why this matters:
Ethical credentials are very much in fashion nowadays, and whilst the Enforcement Notice doesn’t pass judgment on the ethics of the sale of animal fur, it does enforce the need for transparency and accuracy in the advertising of fur (real or faux) products.
The onus is on the advertiser (i.e. retailer) to conduct appropriate due diligence on its suppliers to ensure it holds robust substantiation to the claim a product is faux fur. In practice, this means the advertiser should put in place appropriate contractual provisions, including:
- warranties that the goods will be as described and do not contain any real animal fur, and that the supplier will undertake its own appropriate due diligence to ensure the integrity in the supply chain;
- appropriate indemnities from the supplier for breaching the above warranties (e.g. covering losses resulting from a regulatory investigations or consumer claims); and
- a requirement for the supplier to cooperate with and provide all reasonable assistance to the advertiser in the event of a regulatory investigation/consumer complaint etc.
However, regardless of the contractual protections the advertiser has in place, it’s clear from the Enforcement Notice that the ASA will expect the advertiser to undertake its own testing of any products (as described above) that purport to be made of faux fur. Ultimately, it’s the advertiser’s name that will appear in any upheld adjudication issued by the ASA and any associated bad publicity in the press and social media., so it’s important to have in place robust policies and measures to stay on the right side of the regulator.
