Coronavirus (B)ADverts – Why you should err on the side of caution if your marketing mentions COVID-19

From a legal (and ethical) point of view, while it is understandable that COVID-19 needs to be considered in brand strategies, it is essential that brands do not attempt to scaremonger/ capitalise on the current situation.

Yasmin Musker | Corporate & Commercial Solicitor

With COVID-19 still making headlines and driving conversations around the world, it is understandable that brands may send messages to their customers and followers, updating them on the pandemic as the situation  evolves.

However, from a legal (and ethical) point of view, while it is understandable that COVID-19 needs to be considered in brand strategies, it is essential that brands do not attempt to scaremonger/ capitalise on the current situation. By unscrupulously linking themselves to a global health crisis, brands could be doing much more harm than good.

With the social landscape changing and developing daily (the rise of TikTok in the last few months being a prime example), the Advertising Standards Agency (ASA) is monitoring social media (along with traditional marketing channels) to ensure all brands act responsibly during this unprecedented period. And while this may seem an obvious point, several brands have already been penalised and called out for their behaviour, content and overall messaging.

From a legal perspective, it’s crucial for all brand campaigns to consider the ASA guidelines depending on the product/service being advertised, but even more so during a global pandemic. The sanctions can be extensive if brands do not follow guidelines or advice, with ad alerts, withdrawal of trading privileges, pre-vetting and restrictions  on SEO rankings, all within the ASA’s remit. Whilst first time offenders may not see a request to remove an ad as something to be deterred by, this can be costly, particularly if an entire campaign or influencer marketing strategy has been built around the one ad that could be taken down.

In recent weeks, three rulings have gone against brands who have tried to capitalise on COVID-19 and made false or exaggerated allegations in their social advertising. All adverts have since been removed and will remain offline due to the ASA’s rulings.

Revival Drinks implied its products, containing vitamin C, could cure COVID-19, helping to prevent, treat or cure the virus, whilst also boosting immunity. The claim specifically stated; “Now being tested in the USA & China as a possible cure for COVID-19”.

The advert also included a customer review which read “After developing symptoms of a sore throat & headache I got paranoid. I took one stick. In about half an hour I felt instantly revived and my headache disappeared, and sore throat was greatly reduced. Since taking I have no symptoms #staysafe.”

Given that the ad was posted in mid-April 2020 during the COVID-19 pandemic and referred to symptoms sometimes associated with COVID-19, plus the hashtag #staysafe, which was linked with the pandemic, the ASA felt consumers would believe the claims in the advert were intended to relate to COVID-19.

Revival Drinks

Vic Smith Bedding is another company who  were  identified as scaremongering through messaging on social media by the ASA. It promoted an ad which included a cartoon image of an upright mattress, with a Union Jack on the front. The mattress wore a green surgical mask, with accompanying text reading: “British Build Beds proudly made in the UK. No nasty imports.” In this instance, the ASA ruled that the ad was likely to cause serious and widespread offence by linking concern about the ongoing coronavirus health crisis to nationality and/or race.

Finally, Cosmetic Medical Advice was found to have fallen foul of advertising law via an Instagram post and accompanying story, implying its ‘super immune system booster’ IV drip could help to prevent COVID-19. The ASA is strict when it comes to the promotion of medical products and will not allow for a product which was not licensed as a medicine by the MHRA to be advertised in such a way, so again this company was penalised, and their adverts removed.

Now, more than ever, we’d advise our clients to review their messaging in light of the recent rulings and become familiar with  the guidance at www.asa.org.uk to make sure they don’t face any unwelcome legal action later down the line.

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