One of the justifications for advertising in a capitalist democracy is that it lubricates the engine of innovation. Without advertising, how can businesses generate the return on investment required for the research and development needed to provide consumers with new and better products and services? Advertising can therefore be a powerful force for good. But it can also be dangerous, when the truth is stretched, claims are unsubstantiated, and misleading advertisements are published which deceive or confuse consumers. Truth in advertising is essential.

The challenge for advertising regulators is to weed out the misleading advertising. Which is not easy, given that as Dominic Cummings knows all too well, a claim can simultaneously be both misleading and yet literally true. For example, as Dom has now admitted, Turkey are indeed applying to join the EU, but its not going to happen for an extremely long time, if ever. So during the course of the Covid-19 pandemic we’ve seen the Advertising Standards Authority stamp out all sorts of dodgy claims for IV vitamin drips, vitamin injections and even vitamin C drinks that purport to boost the immune system; for facemasks that have not been tested to PPE standards; and even for air purifiers that are “proven to destroy coronavirus cells”.

But today, for what appears to be the first time since it issued a statement about depictions of mask wearing and social distancing in September 2020, the ASA has upheld a complaint about an advertisement by Cignpost Diagnostics, intended to promote its PCR testing service. PCR tests are the much more reliable alternative to lateral flow tests, which are cheap and cheerful, but not very accurate. To be precise, PCR tests are 99.9% accurate, whereas lateral flow tests are 50% accurate. The ad showed people in an office, but not dealing with the public, who are not wearing masks and not socially distanced. In fact, the colleagues are pictured hugging, apparently overjoyed at being reunited after working from home, and is accompanied by the headline “Friends. Reunited.” The body copy states “Trust Cignpost Diagnostics to get Britain back to work safely” and “Download your back to work guide at”. There is also a footnote, added following pre-publication CAP Copy Advice, which states “Our clinically-led back to work PCR testing programme enables social distancing practices to be relaxed in the workplace.”

In the interests of transparency, we should state that we advised Cignpost Diagnostics on the defence of this complaint. So when we say that we think the ASA has erred in its decision to uphold the complaint, we accept that you are fully entitled to paraphrase Mandy Rice Davies and say “Well, you would say that, wouldn’t you?” True, but just because we’re biased, doesn’t mean we’re wrong!

The whole purpose of the advertisement was to communicate to employers that they can use PCR tests when their staff return to work, which will mean that social distancing and mask wearing will not be necessary. To make that point visually, it was necessary to show two people not socially distancing, but hugging. How else can you depict colleagues who are not socially distancing? By touching fists, arms out-stretched?  Cignpost Diagnostics have spent the past year creating Covid-19 safe work environments for their clients who needed to continue working during the pandemic, many of whom could not use social distancing or masks. The advertising campaign was designed to help other businesses navigate a safe return to the office. 

The ASA upheld the one and only complaint on the basis that the ad was inconsistent with Government Guidance on Offices and contact centres, which states that people should maintain social distancing in the workplace wherever possible (emphasis added). In other words, the requirement for social distancing is qualified, not absolute, and the PCR testing offered by Cignpost Diagnostics is intended to assist employers in those situations when social distancing is not possible.

This decision not only fails to acknowledge that significance of the words “wherever possible”, but it also fails to recognise the significant benefit offered by PCR tests over lateral flow tests. As a result, the regulator has prevented an advertisement from performing the key function of advertising: to inform consumers about an important innovation that will fulfil a vital purpose, helping employers to keep their office staff safe from Covid-19 in situations when social distancing is not possible.

Although the ASA has generally done a great job in protecting consumers from misleading advertising during the pandemic, on this occasion, unfortunately, they appear to have stifled innovation through their inflexibility. 

Ironically, the ASA ruling is published in the week when restrictions on office working have been lifted and there is still considerable confusion among businesses about a safe return to work. The ruling prohibits the advertisements from running again - and yet there are no restrictions on social distancing any more, so presumably the ban on ads showing team mates "hugging!" no longer apply, even though Boris Johnson would still advise it, in a non-compulsory sort of way.... And anyway, this has all come too late for poor old Matt Hancock, who jumped the gun on hugging his colleague. 

And to all my colleagues who may be reading this in advance of our return to Chancery Lane I say this: Please, no hugging, even if you are PCR tested!