Harvey Norman breached advertising standards with e-scooter claim

It is one of nine complaints, out of 11, fully upheld by the ASAI in its new bulletin, with several of the complaints relating to an alleged failure from influencers to make clear it was an advert.

Adverts across social media, online, outdoors, TV, and point-of-sale were found to have breached the advertising code.

The complainant in the Harvey Norman case “objected to the advertising on the grounds that it was misleading to advertise the scooter as being ‘perfect for commuters’ given that the legal status of e-scooters in Ireland was that they cannot be used on a public place without being taxed or insured and that it was very difficult to obtain tax and insurance for such vehicles”, the ASAI said.

In response, Harvey Norman said it was based on guidance at the time from Government legislation that was expected to be passed and enacted that would allow e-scooters to be used without tax or insurance as long as they didn’t exceed 25km/hr.

“They said that it was reasonable at the time of the advert, given government guidance and industry expectations, that the product would be considered a viable and strong choice for commuters in urban settings,” the ASAI said.

“The advertisers said that it would not be fair to suggest that they tried to mislead consumers either at the time of the advertisement or subsequently and they have not acted irresponsibly.” In its decision, the ASAI said that there was an expectation that the Government legislation would be passed into law, this was not completed by the time the advertisement aired.

It said: “While noting that there had been no intention to mislead, it was the fact, at the time the advertisement aired, the scooters were not permitted to be used in public places without being taxed and insured.

“In the circumstances, the Committee considered that at the time the advertising appeared it was misleading to suggest that the product was ‘perfect for commuters’.” 

The watchdog added that advertising claims should not be made on any expected changes in the law until such a time as the legislation is fully in place.

Social media adverts 

In another case, the ASAI upheld a complaint against a company called Dental Options related to social media content from an influencer wearing one of their orthodontics products and providing advice to prospective users. 

The content included the hashtag “#collab” at the end.

The complainant said it wasn’t clear it was a marketing communication, while the advertiser said the influencer had received the treatment for free and then posted about it.

“They noted that the influencer had used the hashtag “#collab” and they queried if the influencer should have used an alternative disclosure and that they would ensure that future content was in line with the regulations,” the ASAI said.

An agency acting on behalf of the influencer told the watchdog that the advertiser agreed to gift the treatment to the influencer and that the influencer would promote the product and the clinic on each appointment.

The watchdog said: “They said that the influencer now fully understood the need to make clearer that posted material such as this was marked as a marketing communication and that “#collab” was not a sufficient disclosure.

“The advertising should not reappear in its current form. The Committee reminded the parties that the provision of products and services together with a direction to create content, meant that the content was a marketing communication.

“The Committee advised that such content should make it immediately clear to consumers that the content is commercial with the use of a sufficient disclosure such as ‘#Ad’.” 

Meanwhile, the ASAI have also received a complaint from the National Dairy Council over an ad from a brand called Oatly.