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Avoiding misleading advertising
A claim does not have to be false to be misleading. It only has to create an impression that does not correspond to reality.
Key points
- The test is the impression created, not the literal truth of the words.
- Omitting material information is misleading, not only stating something false.
- You must be able to substantiate every claim at the moment you make it.
Misleading advertising law across Europe operates on impression rather than literal truth. A statement that is technically accurate can still be prohibited if the impression it creates does not match reality.
The two categories
Misleading actions. Stating something untrue, or presenting true information in a way that deceives. This includes the overall presentation, imagery, and context, not only the words.
Misleading omissions. Withholding material information the consumer needs to make an informed decision, or providing it unclearly, ambiguously or too late.
The second is the one businesses overlook. Failing to mention a limitation is as actionable as stating something false.
"Free delivery" beside a product whose price rose to cover it is literally true and misleading. The impression is what is tested.
The common failures
| Claim | Problem |
|---|---|
| Prices "from £X" where almost nothing is at £X | misleading impression |
| A strike-through price never genuinely charged | reference price rules |
| "Limited offer" that runs continuously | false urgency |
| Images not depicting the actual product | misleading presentation |
| Test results from a superseded version | outdated substantiation |
| "Up to 50 % off" with one item at 50 % | misleading impression |
| Omitting compulsory additional charges | misleading omission |
Substantiation
You must hold evidence for every factual claim at the time you make it. Not when challenged, at the time.
That evidence must be adequate for the strength of the claim. A comparative performance claim requires testing; a claim about customer numbers requires records; a health-related claim requires evidence to a standard set by specific legislation.
Keep the substantiation with a record of which claim it supports and when it was verified. Claims outlive the evidence for them, and superseded substantiation is a common finding.
Material information
Certain information must be provided and must not be buried: the main characteristics of the product, the total price including compulsory charges, delivery arrangements, and the right of withdrawal where it applies.
Placing that information behind a link, in small print, or only at the final checkout step has repeatedly been held to be a misleading omission.
The average consumer standard
The test is an average consumer of the group addressed, reasonably well informed and reasonably observant.
Where advertising targets a vulnerable group, the standard adjusts. Advertising directed at children, or at people made vulnerable by circumstance, is assessed against that audience.
Practical controls
- A written substantiation file for every factual claim.
- A named person who checks claims before publication.
- An annual review of standing claims on the website, which is where outdated claims accumulate.
- Removal of any claim whose evidence is no longer current, immediately.
Frequently asked questions
Is a technically true claim safe?
No. If the overall impression misleads an average consumer, the claim is actionable regardless of its literal accuracy.
Who has to prove a claim?
In most jurisdictions the advertiser must be able to substantiate it. You cannot require the challenger to disprove it.
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