Important reminders in new CAP Help note on Testimonials and Endorsements

Who: The Committee of Advertising Practice (“CAP”); the Advertising Standards Authority (“ASA”)

When: 20 May 2015

Where: UK

Law stated as at: 8 June 2015

What happened:

On 20 May CAP released a new guidance note which set out the main pointers and pitfalls in using testimonials and endorsements in advertising materials. Based on this guidance note, we have set out our top tips for what you need to be thinking about:

        •  Ensure the endorsement is genuine – the CAP Code requires all testimonials and endorsements to be genuine, unless they are obviously fictitious.
        • Be able to substantiate objective claims in testimonials – even though the testimonial or endorsement will not have come directly from you, you must hold documentary evidence to be able to back up any objective claims quoted in your advertising material. It must be remembered that the testimonial alone will not be adequate evidence alone to substantiate any claims made regarding the product or service. Indeed, in May this year, a customer biography featured on the website of chiropractic company which mentioned that having chiropractic adjustments could help with alleviating hay fever was held to be in breach of the CAP Code in the absence of further proof from the marketer that this would be the case for most people.
        • Flag subjective claims and opinions as such – advertisers do not usually need to hold evidence to back up genuine claims in advertising which are entirely subjective as long as it is clear that the advertiser is expressing an opinion rather than a fact. This will clearly be a matter of context in most cases. For instance, in the past the ASA has acknowledged that “best value” can differ in meaning based on the context: when used to reflect price, this might be seen as a claim relating to a product or service being the cheapest (which is capable of objective substantiation); however, it could also be used to reflect the quality of service which is more intangible and subjective (which therefore may not require substantiation).
        • Acquire the correct contact details of the endorser – the CAP Code requires marketers to hold contact details of the individual or organisation providing the endorsement.
        • Get consent – advertisers are not permitted to publish a testimonial without the consent of the party being quoted. Although the Privacy section of CAP Code does not strictly require marketers to obtain written permission from the relevant person to be able to merely refer to them or portray them in an ad, CAP urges marketers to do so, particularly when implying any personal approval of a product or brand.
        • Beware of implied celebrity endorsement – the ASA has stated that it is unlikely to uphold complaints from celebrities referred to in ads when it is obvious from the context that they have not endorsed the product (for instance, when the celebrity is the subject of an ad but there is no mention that they approve of the product). However, advertisers should be cautious where an ad implies, or could be taken to imply, that the celebrity in question has endorsed the product or service when this is not the case.
        • Make it clear that social media endorsements are advertising in nature – brands are free to pay celebrities to endorse their products or services, however it should be clear on the face of the content that it is an ad. In particular, when asking celebrities to use their own social media accounts to promote a product, make sure the communication is clearly identifiable as an ad. If you are in doubt as to whether a reader would recognise that a post is advertising in nature, ask the celebrity to use #ad to eliminate doubt.
        • Don’t imply an official endorsement (unless you have one) – marketing communications should only claim that the product or service has been approved or endorsed by a public or private body if this is the case. Also beware of impliedly claiming endorsement – advertisers have previously fallen foul of this by decorating lettering or logos with a crown which has been held by the ASA to imply official backing from the Queen.

Why this matters

Ignoring any of the above guidelines is likely to constitute a breach of the CAP Code. As endorsements and testimonials are often personal to the individual giving them, using them in an improper way could well lead to a complaint being made to the ASA. As we all know, the ASA has the power to investigate any marketing communications which it thinks might be in breach of the CAP Code and has the authority to ask the advertiser to remove the offending communication. Although financial penalties are only very rare (where persistent offenders are referred to Trading Standards), advertisers should be aware that all ASA adjudications are published and are publicly viewable so there is always the risk of reputational damage if the advertiser is held to have distributed misleading advertising.

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