As part of a wider piece of work on online choice architecture, the ASA has recently published two key rulings finding the advertisement of (1) a pair of trainers, and (2) renewed subscriptions for streaming services misleading. This article considers these rulings, assessing what the decisions mean for advertisers going forward.

The first ruling relates to a paid-for-ad on X (formerly Twitter) by The Sole Supplier, who were an affiliate marketer of Nike. The ad featuring an image of a pair of Nike trainers and a caption stating: “Now just £26 at Nike! [exploding head emoji] [black heart emoji]. The ad then clicked through to a product listing on the Nike site. The ASA questioned whether the ad was misleading as the product was only available for older children and limited to certain sizes. The CAP Code requires advertisers to ensure that marketing communications do not mislead consumers by hiding material information or presenting it in an unclear manner (rules 3.1 and 3.3 of the CAP Code (Edition 12)).  

Sole Supplier argued that the ad was not misleading as it directed consumers to Nike’s page with further information on the sizes available. However, the ASA disagreed and found:

1. There was nothing in the ad to indicate to consumers that the trainers were only intended for older children, or that they were only available in limited adult sizing. Nothing in the imagery of the shoe suggested that it would be available solely in smaller sizes.
2. The “Now just £26” text and emoji implied that the advertised price was a significant discount against the usual price of trainers. Whilst this would likely be true for adult pricing, this would not necessary be the case for children’s trainers.
3. While the linked page to Nike’s site contained further information, those clicking onto that page would be doing so on the understanding that there would be a variety of adult shoe sizes available.

The ASA therefore concluded that the ad was likely to be misleading by omission and requested it be taken down.

The second ruling relates to an advertisement for a NOW TV membership, which was accompanied by an offer of a free trial for Sky’ s ‘Cinema’ or ‘Boost’ offerings that were subject to auto-renewal after the initial free trial period. As the trial was automatically added to the customer’s order, and a monthly charge for either the ‘Cinema’ or the ‘Boost’ service auto-renewed unless it was cancelled, the ASA challenged whether the presentation of the options was misleading. 

Sky considered that as consumers were invited to select their preferred membership on the main page (which stated “Choose your membership”), they understood there was an element of choice and that they were aware that further options would be made available to them. Sky also considered that a free trial is a widely understood concept, and therefore the inclusion of a free trial before auto-renewing to another membership was not misleading.  

However, the ASA ruled that:

1. The initial marketing material did not make it sufficiently clear that the NowTV subscriptions were bundled with a free trial – this was only made clear once the user clicked through to a second webpage. 
2. In the main marketing material for one of the subscription packages which contained a free trial for the Boost service, the accompanying text merely stated: ““1 month free Boost.” This part of the ad needed to make it clearer both that a subscription would start automatically after the trial period ended and what the financial commitment would be if the service was not cancelled during the free trial period. In accordance with CAP guidance, this information should be “immediately visible and prominent; immediately follow the most prominent references to the trial or offer; and be clear and legible both in size and clarity of font.”
3. The advertisement did contain a qualification in small font stating: “After your 7-day free trials, membership auto-renew monthly at £9.99 for Cinema and £6 for Boost. Cancel anytime.” However, when compared to other text on the page, the information was in a smaller font and in a less prominent colour. The text was also positioned at the bottom of the boxes outlining the membership options (and free-trial option), underneath the buttons to select and purchase the customer’s desired streaming package. Because the text was placed away from the references to the free trials and below the button to proceed in the consumer journey, consumers were more likely to overlook the significance of the conditions attached to the free trial. 

Commentary 

Both cases serve to highlight that the ASA is paying greater scrutiny to online choice architecture – i.e. the steps that customers are required to go through when purchasing products, and how information is presented to them during this journey. The Digital Markets, Competition and Consumers Act 2024 is also updating the law in this areas to give consumers greater protection in relation to matters such as subscription contracts and drip pricing (i.e. advertising products or services at an initial headline price, but adding additional fees for extra products/services during the purchase process). 

The Sole Supplier case also highlights the need for brands to work closely with their affiliate marketing partners – in that case Nike did not have any input or oversight on the creation or distribution of the relevant ad as Sole Supplier was entitled to advertise Nike’s products without any prior approval, as long as Sole Supplier complied with all applicable laws and regulations (including the CAP Code).

It is clear that the ASA (and other regulators such as the CMA) are taking an increasingly detailed look at consumer pricing practices that they deem to be potentially misleading, and marketers need to consider all stages of the consumer journey carefully to ensure that they are compliant with the increasingly detailed and rigorous legal regime.