Crackdown on comparative claims by universities in the United Kingdom
In late 2017, the Advertising Standards Authority (ASA) in the United Kingdom examined a range of complaints made in respect of various advertising campaigns run by six universities in the United Kingdom.
The majority of complaints pertained to allegedly misleading or unsubstantiated claims made by the universities that they were the top ranked university for certain degree subjects. In particular:
- Teesside University claimed that it was the “Top university in England for long-term graduate prospects”;
- Falmouth University described itself as “the UK’s number one arts university” or “the UK’s number one creative university”;
- University of Leicester claimed to be “a top 1% world university”;
- University of East Anglia claimed that it was in the “Top 5 for student satisfaction”;
- University of West London claimed to be “London’s top modern university – and one of the top 10 in the UK”; and
- University of Strathclyde claimed to be “ranked No. 1 in the UK” for physics.
Ultimately, ASA ruled that each of the universities’ advertising tactics breached certain provisions of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) which required, among other things, that:
- marketing communications must not materially mislead, or be likely to do so;
- marketers must hold documentary evidence to substantiate any claims made;
- marketing communications must state any significant limitations and qualifications to claims made; and
- marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
ASA subsequently banned the universities from making the claims and assertions in the future.
On 15 November 2017, the ASA published guidelines entitled “Universities: Comparative claims” (ASA Guidelines), which provide tips and advice in respect of the implications of its recent rulings, what terminology universities should be avoiding and the evidence the ASA would expect to see in order to back up a claim.
Implications for Australian universities and higher education institutions
Care should be taken when conducting promotional campaigns in the UK, although the ASA Guidelines will not apply to direct marketing communications that originate outside the UK or to promotions and marketing communications on non-UK websites. The ASA Guidelines will also be inapplicable to campaigns you run exclusively in Australia.
Despite this, the Australian Consumer and Competition Commission (ACCC) has, in recent times, identified the same concerns of ASA in respect of claims made about university rankings.
As you would be aware, students, as consumers of education products and services, are protected by the Australian Consumer Law (ACL). Accordingly, the ACL prohibits universities from making statements that are incorrect or likely to cause students, or prospective students, to form a false impression of a university’s standing.
Whilst the ACCC has not released a set of specific guidelines akin to those in the UK, our experience is that it will require universities to meet very similar requirements to those set out in the ASA Guidelines in order to avoid breaching the ACL.
Accordingly, we recommend that you adopt the principles contained in the ASA Guidelines as a matter of practice, and for the purpose of risk management, in any future advertising campaigns, particularly those where you are making a claim to a specific ranking in comparison to other universities and higher education institutions.
Practical steps you can take
As a matter of practice, adopting the ASA Guidelines will generally require that you take steps to:
- ensure that you maintain/hold robust documentary evidence to substantiate any comparative claims made;
- make the basis of any comparative claims clear and include the necessary qualifications. This might involve noting any specific methodologies or assumptions that were used to formulate the claim, any specific limitations to those claims, or expressly clarifying the meaning of any broad or ambiguous terms that have the potential to be interpreted in multiple ways;
- ensure that any claims made accurately reflect the evidence, and do not exaggerate or go further than the evidence you hold; and
- ensure that your comparative claims are “verifiable”. That is, you should set out the relevant information in the advert or indicate where the information used to make a comparison can be checked by the target audience. The most straightforward way to ensure a comparison is verifiable is to direct consumers to a website that contains the information which forms the basis of the comparison. This means that you could, for example, include text to the effect of “visit www… for further details”.
If you would like greater clarification on the application of these principles, or require assistance with the development of internal guidelines to govern the creation of future promotional materials, please contact Peter Campbell on +61 8 8205 0836.
This article was written by Peter Campbell, Partner and Caitlin Surman, Solicitor.