When Half Man Half Biscuit sang about St Peter at heaven’s gate investigating the inevitable asterisk, we all knew what they were getting at*.

When something in an advert sounds too good to be true we are conditioned to look for the catch in the form of an asterisk and some barely legible small print, which conjures up an image of a marketeer tutting at a lawyer for spoiling the aesthetic of their beautifully crafted art.

However, American Express have just had a reminder that using small print isn’t carte blanche to say what you like. Oh, and that lawyers are more important than beauty (not that the two are mutually exclusive of course).

They released a TV advert for their credit card which boasted that “you could get 5% cashback on all purchases”. The thing is, though, that you don’t if by “all” you mean “all”.

To be fair to American Express, the bottom of the screen was filled with blurb which, amongst other things, pointed out that this only applies for the first 3 months, it stops once you’ve claimed £100 anyway, you have to spend £3,000 a year to be eligible at all, and it doesn’t apply to foreign currency purchases.

Complaints were made to the Advertising Standards Authority that the cashback claim was misleading and exaggerated. American Express turned to pedantry and pointed out they said you could get the cashback not that you will, and also sought to rely on the small print having provided the information necessary to make viewers realise that when they said “all” they didn’t actually mean it.

The general rule is that any small print should clarify not contradict the claim it accompanies, and the ASA decided that this case fell on the wrong side of the line. They felt that viewers would understand they would get 5% cashback on all purchases, and there were significant limitations which were not overridden by the small print.

The advert was therefore found to breach the relevant advertising code, and American Express have been told it cannot appear again in its current form.

As a secondary issue, this case also serves as another useful reminder. All TV adverts (but not non-broadcast adverts) go through a pre-approval process designed to ensure they comply with the advertising code. However, whilst that process can be useful it is no guarantee of being able to defend a complaint. In this instance the potential issue had been spotted and American Express had been required to make some changes before approval would be granted, but in the ASA’s view those changes did not go far enough, and it is the ASA’s view which matters.

For further information relating to the points raised in this article, please contact Ben Clay or a member of the Intellectual Property Team.

* Half Man Half Biscuit are a popular (with this author at least) band from the Wirral known for the cutting social commentary and cultural references contained in their song lyrics. The line “And if I get to heaven’s gate I’ll doubtless have to wait while St Peter investigates the inevitable asterisk” appears in the track “Surging Out Of Convalescence”, alongside a convincing argument as to why soap operas should not feature pub darts. See, this is what asterisks can be good for: going off on a tangent and providing additional information which some may find useful but which the main article shouldn’t get all bogged down with. No hidden nasties down here. These days of course online blogs and newspaper articles tend to use a hyperlink instead to let the reader investigate a reference which might need further explanation.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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