On 5 March 2019, a Manchester-based FinTech company was found in breach of the UK Code of Non-broadcast Advertising (CAP Code) over a Brexit-related online advertisement, which put emotional pressure on readers to take out a short-term loan.
As concerns about Britain leaving the European Union with no deal on 29 March are growing, practical preparations for life after Brexit increasingly gain traction. Discussions about Brexit contingency planning have included, among others, finance and banks, data flow between the EU and the UK, health care, manufacturing, air transport and food supplies. Expert opinion reported by the BBC in January 2019 suggested that it was “almost inevitable” that the food supply would be affected in the case of a disruptive Brexit, which may swiftly result in a real erosion of choice on the shelves.
Against this backdrop, Cash On Go Ltd, a financial services company which specialises on short-term loans, sent on 24 January 2019 an email banner ad to consumers which stated:
“… no one really knows what’s going on with this whole Brexit malarkey … and some say it could affect the amount of food available… We do not want to believe that Brexit will impact the amount of food available but it’s still a good idea to have a little stockpile ready. That way you’re always prepared for the worst… Things can pop up even when you think everything is going swimmingly… That’s when you might need a little extra help”.
In addition, text accompanied by a promotional discount stated in bold-lettering: “IN CASE OF EMERGENCY PRESS HERE”. Smaller text read: “We’ll never tell you to take a loan – credit decisions should only be made after careful consideration”. A single complaint was made about this ad to the Advertising Standards Authority (ASA), the UK’s independent regulator of advertising across all media. The complainant specifically queried whether the ad at issue properly considered public sensitivities and encouraged people to take out a loan “by playing on their fears”.
Cash On Go Ltd responded that the advertisement aimed to promote their product as predominantly benefiting “those temporarily in need of money to cover occasional unexpected shortfalls”. The reference to Brexit was added in order to inject a flavour of topicality into the ad and was intended to be made in a rather “light-hearted” tone. The company did not believe that the ad proposed taking out a loan because of Brexit-related uncertainties. Its text specifically mentioned that they did not think Brexit would actually affect the amount of food supplies available. The company also encouraged potential customers to make credit decisions only after careful consideration.
Nevertheless, in a ruling of 20 March 2019, the ASA upheld the complaint. The Authority agreed that taking out a high interest, short-term loan was a decision that should only be made after careful consideration but noted that marketers should advertise such products responsibly. Its CAP Code, which is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications in the UK, requires that marketing communications “must be prepared with a sense of responsibility to consumers and to society” (Rule 1.3) and must not cause “harm or serious or widespread offence”. Marketers are required in particular to ensure that their ads do not cause “fear or distress without justifiable reason” (Rule 4.2).
In the ASA’s view, many readers would see Brexit as a high-profile and controversial topic, which prompted considerable disagreement over the availability of essential supplies and general economic stability in its aftermath. It recognised that the ad did not employ definitive language regarding the future but considered that its overall approach was “likely to put emotional pressure on readers to the effect that it was sensible to go further than they would otherwise have been able to afford by taking out a loan and that, if they did not, they risked being unable to feed themselves or their families.” As such, the ASA ruled that the ad’s references to possible food shortages were likely to “play on some people’s concerns regarding Brexit”, including financially vulnerable consumers who were already concerned about their financial situation. It concluded that the ad violated the CAP rules and it should not appear again in the form complained of.
It is clear that the febrile atmosphere surrounding the upcoming UK exit from the EU has provided a springboard for unscrupulous marketing practices which seek to capitalise on the considerable anxiety the undesirable uncertainty regarding Brexit continues to cause. One interpretation of this ruling is that the ASA aims to send a clear and strong message that marketing communications which seek to exploit the serious sense of unease caused by the prospect of a disorderly Brexit and its alleged mismanagement by the current government are likely to be deemed socially irresponsible and thus banned.
Alexandros K. Antoniou is a Lecturer in Media Law at the University of Essex