The Advertising Standards Authority (ASA) has today upheld a ruling against Nike B.V. t/a Nike and The Sole Supplier banning a paid-for ad, published in December last year for being misleading. Managing Partner of Beyond Corporate, James Corlett, looks at the ASA’s ruling and why Nike fell short of the ASA’s guidelines.
The ad featured an image of a pair of Nike trainers. The captioned stated, “Now just £26 at Nike! [exploding head emoji] [black heart emoji]”. The ad clicked through to a product listing on the Nike website.
Nike confirmed that they had a commercial relationship with The Sole Supplier Ltd, who would receive commission for sales generated through their ads. They explained that the contractual agreement allowed The Sole Supplier to advertise Nike and its products without prior approval. The Sole Supplier, however, was required to ensure that ads complied with applicable laws and regulations, including the CAP Code. Nike therefore confirmed that the ad was created and published by The Sole Supplier without any input or oversight from them. They believed that because commission was based on sales, rather than the amount of clicks the ad received, the risk that affiliate marketers would publish misleading ads to entice clicks from consumers was mitigated.
Nike did not believe that the ad was misleading. Given the promotional price and the caption of the ad, they believed a reasonable consumer would assume that there would be some limitation on the item, such as the availability of sizes.
The Sole Supplier said the ad guided users to more detailed information about the product, including what sizes were available. However, they said they were open to considering how to present size information more prominently in future advertising, within the constraints of the platform.
The decision was upheld however, as the ASA stated that the CAP Code required that marketing communications did not mislead consumers by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
In particular, they noted that there was nothing in the ad to indicate to consumers that the trainers were intended for older children or that they were available in limited adult sizing, nor were there any visual cues, such as a sense of scale, to indicate the smaller size of the shoes – in this context they considered most consumers would reasonably assume that the trainers were for adults.
Whilst the linked page did contain clear information about availability and sizes, this wasn’t sufficient to save the ad from being misleading.
The ASA ruled that the ad should not appear again in the form complained of and impressed upon Nike to ensure that in future, their ads did not omit material information, such as limitations on sizing, which would cause consumers to make a transactional decision they would not have otherwise taken.
In a similar case against Sky, the ASA made criticised the way subscription options were presented to customers signing up for streaming service Now TV. The ad did not make it clear that a free trial for Now TV would automatically renew with a charge unless cancelled.
