Last week, the Advertising Standards Agency issued guidance to universities on the content of advertising and marketing materials aimed at attracting students. It followed on from the ASA¡¯s regulatory arm, the Committee for Advertising Practice, upholding complaints of misleading or unsubstantiated claims against six universities.

The rationale for the guidance is clearly explained by the ASA.?¡°Choosing a university can be a difficult decision and a big commitment,¡± it says, ¡°and it is important that advertisers do not make claims that could mislead would-be students into making the wrong decisions.¡±

In essence, higher education is expensive and universities, like all businesses, must observe the rules to ensure that students are not misled when making their ¡°purchasing decisions¡±. The ASA¡¯s main focus was on those advertising statements that make comparative claims with other institutions ¨C for example, descriptions that the university was ¡°a top 1 per cent world university¡±; or ¡°we¡¯re ranked No.1 in the UK¡±.

So, what assistance does the new ASA guidance provide?

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1. Establish what type of comparative claim is to be made
   Universities are required to consider how an applicant may interpret any claim that is made. Difficulties will result when the marketing literature refers to the institution being the ¡°best¡±, ¡°No.1¡±, or ¡°leading¡± unless the supporting evidence is there to verify the precise claim being made.?
2. Relevant evidence
   Any institution making a claim must be able to substantiate it. A complaint about advertising claiming that a university was ¡°the UK¡¯s number one creative university¡± were upheld as being misleading as the university did not have sufficient evidence to justify such claims.
3. Ensure basis of statement is clear (and include necessary qualifications)
   When making a claim in advertising, ensure that it is clear precisely what is being stated. Making a claim to be a ¡°top modern university¡± was held to be misleading as there was no clarity over what a ¡°modern university¡± in fact was.
4. Don¡¯t exaggerate
   Universities need to ensure that any claims that are made are realistic and do not go beyond the evidence held. To claim a ranking as ¡°No.1 in the UK¡±?when relying on only part of the available evidence is not acceptable.
5. Verify
   The ability to verify a comparative claim is key. The Advertising Code of Conduct requires that all comparisons with identifiable competitors must be verifiable. This means that any claims that are made in marketing materials must provide a signpost to verifiable information from which the comparison has been drawn. So, make no more claims of being ¡°world leaders¡± without proper justification.

Marketing departments in all institutions are likely to start reviewing existing marketing materials for comparative claims and ensuring that any such claims are clear, reasoned, verifiable and justified. Getting it wrong may result in actions from the ASA/CAP (that may include seeking undertakings from institutions to comply in future and forcing the withdrawal of unverifiable claims) and negative publicity.

In addition, marketing materials will need to be changed. Persistent offenders could also be referred to trading standards officers and ultimately face imposition of fines. None of this is particularly attractive to organisations trying to encourage an increased take-up by students.

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The increased commercialisation of academic life has been much commented on in recent years as the amounts that students are required to commit to funding their higher education has increased. The latest rulings and guidance from the ASA is further evidence of the fact that the rules that apply to all commercial entities apply equally to universities.?

Iain Campbell is a partner at Hill Dickinson LLP specialising in advising higher education institutions, and Moya Clifford is a professional support lawyer at the same firm.