This article provides a selection of the most interesting ASA
adjudications from January and a summary of the key issues
considered in the adjudications.
This month the ASA considered the advertising of medicinal
products, highlighting the need for advertisers to comply with the
terms of applicable regulatory licences and the need for robust
evidence to substantiate medicinal claims. There are also a
number of adjudications relating to pricing issues in promotions, a
"number one" claim, the importance of using small print
appropriately, guns and religion, and the danger of intemperately
language in a comparative advert.
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Full Article
LEISURE
1. MyCityDeal Ltd t/a Groupon UK, 5 January 2011
(the ASA upheld three challenges against adverts for group
buying offers)
2. LOVEFiLM UK Ltd, 12 January 2011
(significant exclusions to an offer must be made clear to
consumers)
3. Living TV Group Ltd, 12 January 2011
(poster adverts featuring guns did not glamorise or condone gun
crime, as they reflected the content of the advertised television
programme and the guns were not shown in an aggressive
manner)
4. Daybrook House Promotions Ltd (DHP Group) t/a Thekla Bristol BHP Concerts, 26 January 2011
(an advert featuring notions of confession and sin, together with religious imagery, was not offensive on religious grounds as readers would understand the "tongue-in-cheek" message)
HEALTH AND BEAUTY
5. Clinic of Integrated Medicine Limited, 19 January 2011
(advertisers must not make claims that imply medicinal
properties unless they hold the relevant regulatory
permissions)
6. Boehringer Ingelheim Ltd, 19 January 2011
(an advert making claims about the performance of a medicinal
product conformed to the terms of its regulatory licence and
therefore was acceptable)
7. Mentholatum Company Limited, 26 January 2011
(the ASA considered that a pun in an advert was not a call to action, but was a claim capable of substantiation)
RETAIL
8. ASDA Stores Ltd, 5 January 2011
(from the overall impression of the advert consumes would infer
that a wider selection of products was included in a
promotion)
9. Capital Shopping Centres plc, 19 January 2011
(evidence in substantiation of claims must be up to date, and
consumers should be informed of the basis of objective
claims)
10. Chums Ltd, 5 January 2011
(the advertiser was unable to demonstrate that the price of a product which was the subject of a "free" claim was genuine)
HOUSEHOLD
11. Telegraph Media Group Ltd t/a The Daily Telegraph, 12 January 2011
(advertisers must provide relevant, up to date test results and
be able to demonstrate the methodology of their testing)
12. Rointe, 19 January 2011
(advertisers were unable to substantiate environmental claims with sufficient "cradle to grave" testing)
OTHER
13. Ryanair Ltd, 26 January 2011
(consumers were unable to take full advantage of features mentioned in the advert, due to closure on certain dates within the travel period)
14. General Motors UK Ltd, 5 January 2011
(the ASA examined the use of small print in four adverts for a warranty, as well as the claim that the advertiser was the "first" manufacturer to offer this type of product)
15. PlusNet plc, 26 January 2011
(small print on a bus poster was illegible to a normally sighted person at a reasonable distance)
16. Imagine Estate Agents, 12 January 2011
(the subject of the advert was identifiable from the advert, notwithstanding that they were not explicitly identified)
LEISURE
1. MyCityDeal Ltd t/a Groupon UK, 5 January 2011
This adjudication concerns three adverts for a group-buying
website. The first advert, contained in an email, offered
"£9.80 instead of £24.50 for two people to enjoy
fantastic... food... Save 60%". The second advert, a sales
promotion on the advertiser's website, offered consumers an
outdoor experience for "£15.50 instead of
£39...Save 60%". The advert referred to various terms of
the offer, including the minimum age, and the need for advance
booking. The third advert, also a sales promotion on the
advertiser's website, was in respect of a three-course meal
plus tea or coffee for "£29 instead of £83.50...
Save 65%".
Complaint/Decision
The adverts attracted complaints from two members of the public.
The first advert was considered misleading by one of the
complainants, because one person had to pay the full price in order
for the second diner to obtain the discounted price, and this was
not made clear in the advert. The same complainant argued that the
second advert was misleading because it failed to make clear that
the deal was not available at weekends unless an extra £10
was paid. The other complainant challenged the third advert on the
basis that it misleadingly exaggerated the saving; if two people
were to purchase the most expensive menu choices and tea or coffee,
the total cost of a three course meal would not amount to
£83.50 and therefore the saving did not always amount to
65%.
The ASA upheld all of the complaints. With regard to the first
advert, the ASA noted that a drafting error had occurred, which had
resulted in the misleading claim. However, the ASA considered that
the claim would be understood to mean that two people could take
advantage of the advertised price, rather than one person taking
advantage of the offer if another paid full price.
With regard to the second complaint, the ASA acknowledged that the
advert stated "Fine Print", which listed five terms and
conditions. The ASA considered that readers would assume that the
conditions listed in the "Fine Print" were the only terms
applying to the offer, but noted that the weekend surcharge was not
mentioned. The ASA concluded that the £10 weekend surcharge
was a significant term that should have been included in the
advert, and the omission of this meant that the advert was
misleading.
Finally, in respect of the third advert, the ASA considered that
the claim implied that consumers would always save 65% when taking
advantage of the offer. In fact, this was not the case, as the
£83.50 price was based upon regular special dishes which were
more expensive; the ASA acknowledged that not every diner would
choose the most expensive items. The ASA therefore concluded that
the claim was misleading and that the advert should have quoted a
saving that was more readily achievable and not dependant upon
special dishes being available. The ASA further concluded that the
claim should have been qualified, for example with the words
"up to", and should have made clear that the maximum
saving was calculated using the most expensive menu choices
available. If the claim was "Save up to £X or X%"
this would have made clear to consumers that the maximum advertised
saving would not be available in every case.
This adjudication, which attracted lots of press attention, follows
an adjudication against the same advertiser in December 2010 in
which three of the four complaints were upheld. There has been a
recent rise in group-buying websites, which often promote special
pricing offers, packages and discounts. Particular note should also
be taken of the OFT's recent study on pricing practices which provides
guidance as to situations in which the OFT is likely to take
enforcement action. The ASA's decision to uphold the third
complaint in respect of the three-course meal is also interesting
because it indicates that advertisers should advertise
"readily achievable" savings that are not necessarily
measured against the most expensive options available and must
appropriately qualify any claims for such savings.
2. LOVEFiLM UK Ltd, 12 January 2011
A television advert for LOVEFiLM contained details of one of the
advertiser's packages and included the voice-over stating
"Want an easy way to rent movies? ... You can have Blu-Rays
and DVDs by post, you can watch movies online, and now you can even
have movies streamed straight to your internet enabled TV. Did you
know we rent games too?...You can even try it for free. Got o
lovefilm.com". On screen text stated "FOR YOUR 2 WEEK
FREE TRIAL LOVEFiLM.COM" and small print stated "...
Subject to compatibility. Ts & Cs apply..."
Complaint/Decision
One person complained that the advert was misleading because he was charged for watching a film online during the trial period.
The ASA noted that the terms and conditions on the advertiser's website stated "Free trials are only available to new subscribers to the LOVEFiLM Rental Service (and not the Pay As You Go Service, the Watch Online Service or any other product or service)". However, the ASA considered that viewers would infer that full use of LOVEFiLM's services (including watching movies online) was included in the two-week free trial, in the absence of qualifying information to the contrary. The exclusion of certain content, such as pay-per-view online content was a significant condition that the ASA concluded should have been made clear in the advert. Accordingly, the ASA upheld the complaint and considered that the advert was misleading.
Advertisers must always ensure that significant terms and conditions of offers are made clear, so as to avoid misleading consumers. This is particularly relevant when packages are advertised, as the combination of features and products may be subject to more complex terms and conditions which may cause confusion.
3. Living TV Group Ltd, 12 January 2011
This adjudication concerns two poster adverts for a television programme. Each poster showed a young woman holding a gun (in one advert, a hand gun and in the other, a rifle). Both adverts featured large red text reading "I KILL FOR LOVE."
Complaint/Decision
The ASA received three complaints that the adverts were offensive, irresponsible and harmful on the basis that they glamorised the use of guns and violence.
The ASA noted that the CAP Copy Advice team had advised the advertiser that the inclusion of the text in conjunction with the images might be problematic, but that the adverts "presented a borderline case". The ASA noted that the adverts were clearly in respect of a new TV series and that, although guns were featured, the adverts did not show violence and the guns were not shown in an aggressive manner. The ASA considered that the text and image reflected the content of the television show being advertised and therefore that the adverts were unlikely to be seen as glamorising guns; the ASA did not uphold the complaints.
This advert is the latest in a series of adverts for films and television programmes featuring guns. Mostly, where the portrayal of guns is not in an aggressive manner and is in the context of the programme or film being advertised, the ASA has not upheld complaints of glamorising gun-use. However, in 2004 the ASA received 361 complaints in respect of a car advert, which were upheld on the basis that the advert made light of public concern in respect of gun crime. In December 2008 the ASA upheld a complaint about a poster advert featuring guns located at Stockwell Tube Station, shortly after the shooting of Jean Charles de Menezes. Accordingly, advertisers must still take care to ensure that adverts are contextually appropriate.
4. Daybrook House Promotions Ltd (DHP Group) t/a Thekla Bristol BHP Concerts, 26 January 2011
An advert in a regional press supplement magazine featured an image of the Virgin Mary holding a disco ball to advertise a themed club night. The text stated "......FREE ENTRY BEFORE 10PM GUILTY POP PLEASURES FOR SINNERS POP CONFESSIONAL...".
Decision
One complainant challenged whether the advert was offensive on the grounds that it mocked Christianity, and Catholicism in particular.
The ASA did not uphold this complaint. Although it noted that the concepts of sinning and confession originated from religion, the ASA considered that they had "become embedded in secular society with a wider application, especially amongst the intended audience"; it did not consider that the advert portrayed religion, or a religious figure, in a negative way. Whilst the ASA acknowledged that the advert might be distasteful to some, it concluded that most of the readership of the advert would interpret the advert as a "tongue-in-cheek joke" in respect of music choices, not in respect of religion.
This is an interesting adjudication, particularly in light of recent decisions on complaints relating to religious offence, such as the Antonio Federici adjudications in October 2010 and September 2010. In this case, contrary to the decision in the September 2010 Antonio Federici advert, the ASA allowed the advert because it took the view that the portrayal of the concepts that originated in religion was light-hearted and did not portray a religious figure negatively. As adverts featuring religious themes are a particularly sensitive area, advertisers must ensure that they approach the use of religious concepts in their adverts with sensitivity.
HEALTH AND BEAUTY
5. Clinic of Integrated Medicine Limited, 19 January 2011
The adjudication concerns two leaflets for hand cream products containing Phytolov. One of the leaflets contained the text "Phytolov Hand Care Cream is designed to care for hands... and to help combat ageing of the hands and dark pigmentation or dark spots on the hands...". The other leaflet bore the heading "Phytolov" and contained text underneath that read, "Muscle Relaxing Balm...". Various claims were made on the reverse of the leaflet including: " ... It is specifically designed for helping disperse stagnation of Qi and blood, eliminating body waste products and toxins ... the balm has an anti-inflammatory effect. It helps repair and regenerate cells in the body. The balm also helps strengthen the fibrous tissues, muscles, tendons and ligaments".
Complaint/Decision
The ASA received one complaint that the claim that the product helped "combat ageing of the hands and dark pigmentation or dark spots on the hands..." was misleading. The ASA itself also challenged whether the claims in the second leaflet were unauthorised medicinal claims.
The ASA upheld both of these complaints. It noted that the product contained vitamins E and C, but it had not seen evidence that these vitamins in cosmetic creams could be utilised by the skin or body. Although the advertiser had made reference to three studies, the studies were not product-specific and therefore the ASA did not consider that these studies alone constituted sufficient evidence to support the claim that the product helped to "combat ageing of the hands and dark pigmentation or dark spots on the hands". The ASA considered that the claims in the second leaflet "implied physiological results and therefore represented the product as medicinal".
This decision is not surprising, but raises interesting issues relevant to advertisers of cosmetics and borderline products. The ASA was concerned at the lack of appropriate substantiation. Advertisers of health and beauty products must also take care not to imply that their products can have medicinal effects unless the products have the relevant marketing authorisation from the Medicines and Healthcare products Regulatory Agency (MHRA). The ASA indicated that, in this case, it was problematic that the product implied physiological results.
6. Boehringer Ingelheim Ltd, 19 January 2011
A radio advert for vitality capsules included the statement "Pharmaton is a unique blend of vitamins, minerals and ginseng clinically proven to relieve periods of exhaustion. Pharmaton is effective at enhancing physical and mental capacity and is suitable for adults of all ages." At the end of the advert a male voice stated "Pharmaton won't turn you into a superhero but it can help you feel super. Pharmaton vitality capsules, more than just a supplement."
Complaint/Decision
The ASA received one complaint that the claim that Pharmaton could enhance mental capacity was misleading and could not be substantiated.
The ASA did not uphold this complaint. It noted the terms of the MHRA licence for Pharmaton and reviewed the accompanying Summary of Product Characteristics. The MHRA licence indicated that one of the ingredients in the product could raise the level of cellular activity increasing physical and mental capacity. Accordingly, the ASA considered that the claim had been substantiated and was not misleading.
This adjudication provides a contrast to the decision in the adjudication above, and is an example of acceptable advertising of medicinal products; the advertiser considered the MHRA licence for the product and ensured that the advert conformed to the terms of the licence.
7. Mentholatum Company Limited, 26 January 2011
This adjudication concerns a television advert for ibuprofen gel. The advert featured a woman swimming in a swimming pool, which, as she swam deeper, turned into the seabed. The advert featured a voice-over stating "Two way action Deep Relief gel contains prescription strength ibuprofen ...Go deeper and discover the effective two way action of Deep Relief gel."
Complaint/Decision
The ASA received one complaint from a company which believed that the claim "contains prescription strength ibuprofen" was misleading and could not be substantiated. It also considered that the words "go deeper" implied that the product could penetrate deeper into tissue than other products.
The ASA noted that the product contained 5% ibuprofen, which was a strength available over the counter. It considered that the claim "prescription strength" implied that the concentration of ibuprofen in the product was at a level only obtainable pursuant to a doctor's prescription and higher than that available over the counter. The ASA therefore upheld the first complaint. The second complaint was noted to be a "visual and verbal pun". However, it considered that, in the context of the advert, the words implied that the product would penetrate into tissue deeper than other products and the ASA had not seen evidence to substantiate this. Accordingly the ASA also upheld this challenge, on the basis that the strength of the product had been exaggerated by the advertiser.
Along with the two adjudications above, this adjudication reminds advertisers that they should be careful when advertising medicinal products. As with all claims relating to all products, advertisers should clearly always ensure that they hold evidence to substantiate claims. Advertisers should also be careful when using puns; although in this case the advertiser intended the words "go deeper" to be a call to action to consumers to search out another possible treatment for their pain, the ASA considered that these words did, in fact, constitute a claim and therefore required evidence in substantiation of this.
RETAIL
8. ASDA Stores Ltd, 5 January 2011
A television advert for ASDA showed a range of toys with a
banner stating "1/2 PRICE TOYS". The voice-over stated
" The only serious thing in ASDA's Toy Event are the
prices! Everything is at least half price!...Our biggest toy event
this year..."
Complaint/Decision
A competitor and a member of the public complained that the
advert was misleading because they understood that the promotion
only applied to selected items.
The ASA considered that the overall impression of the advert
indicated that the range of toys featured was only a selection of
those included in the Toy Event and concluded that viewers would
infer from the advert that all toys at the store were included in
the event, which was not the case. Although all products in the Toy
Event were half price or less, because there was no qualification
to the statement, the advert was misleading and the complaint was
upheld.
Advertisers should be aware not only of the literal meanings of the
claims made in their adverts, but also any implied claims and the
overall impression that consumers are likely to take from the
advert. Advertisers should ensure that any statements that could
otherwise mislead consumes are appropriately qualified.
9. Capital Shopping Centres plc, 19 January 2011
A television advert for a shopping centre showed clips with a
voice-over stating "Officially Britain's Best Shopping
Centre...". On-screen text also stated "Britain's
Best Shopping Centre".
Complaint/Decision
One viewer challenged whether the claim "Officially
Britain's Best Shopping Centre..." could be
substantiated.
The ASA considered that the claim "Officially Britain's
Best Shopping Centre..." was objective and therefore capable
of substantiation. Accordingly the ASA considered that consumers
would assume that the features of the shopping centre had been
measured against other shopping centres and that the shopping
centre in question had been rated as the best. The advertiser
referred the ASA to a survey undertaken by leading information
providers to the shopping centre industry, which was in general
terms acceptable to the ASA. However, the survey was carried out on
a biannual basis; the evidence submitted was the most recent survey
when the advert was shown, but actually dated back to 2008. Neither
this limitation, nor any information as to the organisation who
carried out the survey was given to consumers. The ASA concluded
that this was important and likely to affect consumers'
understanding; the omission of this made the advert misleading and
the complaint was upheld.
This decision reminds advertisers that, where they are making
objective statements about a product or service, they must hold
evidence to substantiate this, particularly important when seeking
to make a "number one" claim. Substantiating evidence
should be as up to date as possible and consumers should be made
aware of the basis for claims and any appropriate
qualifications.
10. Chums Ltd, 5 January 2011
A press advert for boots offered "FREE PAIR OF MEN'S
AND LADIES [sic] WATERPROOF BOOTS FOR EVERY READER". Further
text stated "BUY ONE PAIR FOR £24.99+p&p GET A
SECOND PAIR FREE".
Complaint/Decision
One complainant challenged whether the claim "BUY ONE PAIR
FOR £24.99+p&p GET A SECOND PAIR FREE" was
misleading because they believed that the price had been inflated
in order to cover the cost of the second pair of boots.
The ASA upheld this complaint. It noted that the boots originally
retailed at £19.99 per pair in 2008, but that this had been
increased to £24.99 per pair in 2010. Notwithstanding this,
the ASA had not been provided with evidence that the advertiser had
actually sold any boots at either price and the advertiser had only
provided a link to a competitor's website to show that similar
boots were on sale for £19.99 per pair. The ASA did not
consider that a price on a competitor's website was sufficient
to demonstrate that the advertised price was genuine.
Advertisers are reminded that, to avoid breaching the Consumer
Protection from Unfair Trading Regulations 2008, they must only
advertise genuine prices. Prices cannot be inflated to cover the
costs of special offers. The OFT has recently issued guidance on
volume and free offers and
CAP's Copy Advice team has also issued a help note to assist
advertiser making "free"
claims.
HOUSEHOLD
11. Telegraph Media Group Ltd t/a The Daily Telegraph, 12 January 2011
This adjudication concerns a national press promotion for a
vacuum cleaner, which included the claim: "The Ultraone is the
ultimate in super quiet technology ... [and] comes out top in all
performance tests. These independent tests show that it
out-performs leading competitors for air flow as well as dust
pick-up on all surfaces - anything from hard flooring through to
carpet".
Complaint/Decision
A competitor challenged whether the claims in the advert were
misleading and could be substantiated.
The ASA noted that only four models of vacuum cleaners had been
tested in 2008 and 2009. Although the advertiser believed that its
product had demonstrated superior results in both of these tests,
the ASA was not provided with information as to why those four
particular models had been tested or evidence that the test results
were still relevant in 2010. Further, the advertised product had
not been one of the four models subjected to the tests; the
advertiser had tested one of its other products. Accordingly, the
ASA concluded that the test results were not sufficient to
substantiate the efficacy claim in the promotion.
Advertisers must provide robust evidence to support efficacy
claims. Such evidence must be relevant to the specific advertised
product or service and must be up to date. Where advertisers rely
on test results, they must be able to provide evidence of
methodology to the ASA. CAP's Copy Advice guidelines in respect
of marketing vacuum cleaners may be of assistance in respect of testing.
12. Rointe, 19 January 2011
A magazine advert and brochure for heating devices contained
several claims including "60% ENERGY SAVING...", "0%
co2 EMISSIONS..." and "0% pollution". The brochure
also stated "NO EXPLOSIONS According to statistics, in 2008
there were more than 400,000 explosions of different magnitudes
when using combustion for boilers or water heaters ... NO CO2 Any
kind of combustion produces fumes and carbon dioxide, so dangerous
for the human life. If there is no combustion, there are no fumes
or carbon dioxide ... NO FUELS The fact of having gas or liquid
fuels at home, even with all the safety mechanisms, represents an
important risk and, unfortunately sometimes, it has fatal
consequences ...".
Complaint/Decision
Two complainants challenged whether the "60% ENERGY
SAVING" claim was misleading and could be substantiated. A
further complainant challenged whether the zero pollution and zero
carbon dioxide claims were exaggerated and misleading, and also
that the references to explosions and risk to human life were
exaggerated and likely to cause undue fear.
The ASA upheld all of the complaints on the basis that the
advertiser had not sent any test results to the ASA to substantiate
the claims. The ASA noted that it was unclear as to what product
the advertiser was comparing theirs against in order to measure
energy savings and, accordingly, the "60% ENERGY SAVING"
claim was misleading. In respect of the zero emissions and zero
pollution claims, the ASA noted that the advertiser had not taken
into account the full life cycle of the product from manufacturer
to disposal and, in the absence of appropriate test results, these
claims were misleading. Finally, in respect of the health and
safety statements, the ASA considered that the claims in the advert
implied that there was a real danger to consumers and that the
advertiser's products were safer than alternative products. The
ASA considered that readers would expect the claims to be based
upon official statistics and that the advertiser had not provided
the rationale or justification for such claims. Accordingly the ASA
considered that these claims were misleading.
Advertisers must take particular care when making environmental
claims as this is an area likely to attract complaints and also an
area of concern for the ASA/CAP. If emissions or pollution claims
are made, the advertiser must be able to produce appropriate
"cradle to grave" testing, demonstrating substantiation
of the claim throughout the lifetime of the product (including
manufacture and disposal). Further, advertisers must ensure that
they can confirm the source of any statistics quoted, and ensure
any comparative advertising is clear.
OTHER
13. Ryanair Ltd, 26 January 2011
The advert, which featured in national press, advertised airfares to Denmark. It stated "Family Fun in DENMARK ONE WAY FROM £9 TAXES AND CHARGES INCLUDED." The advert listed several experiences including "Visit Legoland Billund". At the bottom of the advert, text stated "TRAVEL NOVEMBER - JANUARY RYANAIR".
Complaint/Decision
The ASA received one complaint that the statement "Visit Legoland Billund" was misleading because the Legoland resort had limited availability between November and January and the theme park was not open at all.
The ASA noted that the Visit Denmark organisation had actually provided the copy content in respect of the attractions but that it had not signed off the final advert with the travel applicability. It considered that the advert implied that consumers travelling between November and January would be able to fully enjoy the attractions listed and therefore decided that the advert was misleading.
This advertiser has a history of complaints and adverse adjudications about its advertising. There have also been several recent availability decisions, for example that in respect of the Airline Seat Company Limited in December 2010. This decision reminds advertisers that they need to ensure adequate availability of products and services.
14. General Motors UK Ltd, 5 January 2011
This adjudication relates to press, poster, television and
internet adverts. The national press advert stated "A warranty
can now last a lifetime The Vauxhall Lifetime 100,000 Mile Warranty
100,000 mile limit Available on all new cars for the first
owner*..." Small print text at the foot of the ad stated
"Vauxhall Lifetime Warranty covers lifetime ownership of first
car owner. 100,000 mile limit...Terms and conditions apply".
The poster contained similar claims in the main and small print,
although the limitations to the warranty were stated in the small
print. The TV advert featured numerous archive clips from old
Vauxhall adverts. The voice-over stated "... we're the
first manufacturer in the UK to offer you a warranty that could
last a lifetime." Text on screen stated "Warranty covers
ownership of 1st car owner. 100,000 mile limit...Terms and
conditions apply." The internet advert stated "A warranty
can now last a lifetime", "The Vauxhall Lifetime 100,000
Mile Warranty", and a link to the Vauxhall website that was
labelled "find out more".
Complaint/Decision
The ASA received 45 complaints that the "lifetime
warranty" featured in the various adverts was contradicted by
the text stating that it was only valid for the first owner of the
car and limited to 100,000 miles. One complainant stated that this
was not made clear in the internet advert. Further, two
complainants challenged whether the claim in the television advert
that the advertiser was "the first manufacturer in the UK to
offer... a warranty that could last a lifetime" was
misleading, because they considered that other manufacturers had
previously offered a lifetime warranty.
The complaints were partly upheld.
The ASA noted research submitted by the advertiser that 96.08% of
car drivers would not reach 100,000 miles during their lifetime of
ownership and therefore considered that most new car buyers would
be covered by the terms of the warranty irrespective of the mileage
limit. The ASA reviewed the wording of the advert, comprising the
headline claim, the explanatory text and the small print, and
determined that explanatory text and small print clarified, rather
than contradicted, the main claim. In respect of the television
advert, the ASA considered that the mileage and ownership
limitations were clearly shown on screen and viewers were reminded
of the mileage limitation at the end of the advert. Accordingly
complaints specifically about the display of the terms and
conditions in the press and television adverts were not
upheld.
The ASA also considered that the wording "The Vauxhall
Lifetime 100,000 Mile Warranty" made it clear that the
warranty was limited to 100,000 miles and that the internet advert
was therefore not misleading.
However, the ASA considered that the poster advert should have
contained the limitations in the main claim, rather than the small
print; in its current format the ASA concluded that the small print
was contradictory to the main claim and that the advert was
therefore misleading.
Finally, in respect of the claim that the advertiser was "the
first manufacturer in the UK to offer you a warranty that could
last a lifetime", the ASA considered that a warranty with a
100,000-mile limit had previously been offered by a different
manufacturer, but that this had been subject to a seven-year time
restriction. As the advertiser's warranty was not time-limited,
the ASA acknowledged that this was different to the previously
offered warranty. Notwithstanding this, the ASA concluded that the
main message of the advert was the 100,000 mile limit and, because
a 100,000 mile warranty had been offered in the past, the ASA
considered that the advertiser's claim was misleading.
This decision follows the adjudication in respect of Kia Motors in
August 2010. This reminds
advertisers that small print should clarify, rather than contradict
the main claim. The decision in respect of the "first
manufacturer" claim in interesting; notwithstanding that the
advertiser was the first to offer a 100,000 mile warranty with no
time limitations, the ASA considered that the main purpose of the
advert was to promote a 100,000 mile warranty. Accordingly, because
this element of the warranty had been offered previously, the ASA
adjudicated against the advertiser. This reminds advertisers that
they must consider the main purpose of the advert when making
absolute claims.
15. PlusNet plc, 26 January 2011
A poster advertising broadband featured a price promise with an
asterisk directing readers to small print with terms and
conditions.
Complaint/Decision
The ASA received one complaint from a member of the public who
had seen the poster on the back of a bus and considered that the
small print was illegible.
The ASA noted that the CAP Code did not specify a minimum size for
small print in posters, however considered that the print should be
"clearly visible to a normally sighted person reading the
marketing communication once from a reasonable distance and at a
reasonable speed". Part of the headline claim read "SEE
IF YOU CAN GET £6.49 BROADBAND" which the ASA considered
made clear that the offer might not be available to all. As the
small print was illegible, the ASA did not consider that consumers
would be able to read the qualifying criteria easily; accordingly
the complaint was upheld.
In this case the standard against which the ASA measured the small
print was that of a normally sighted person at a reasonable
distance from the advert moving at reasonable speed; this does not
give definitive guidance as to what size text should be, although
this is useful guidance for advertisers.
16. Imagine Estate Agents, 12 January 2011
A somewhat entertaining regional press advert for an estate agent was headlined "ADVERTISING STANDARDS". Text in the body copy continued "We have had the delight of dealing with the fallout after one of our less amiable competitors complained we had created a leaflet that contravened ASA regulations and reported us accordingly. In fact let's not pull any punches, this wasn't one of our less amiable competitors, this was by some distance the most unpleasant little reptile I have ever had the misfortune to cross swords with since plying this trade...The problem arose out of frustration that the guy was claiming service standards that we knew he simply didn't deliver in reality. Following yet another discovery of dubious business practice by this business one of my staff took it upon themselves to design a leaflet highlighting the service failings we knew of..."
The advert made various other comments, such as "...for this horrible weasel I am prepared to make an exception!!!"
Complaint/Decision
The complainant challenged whether the claims "...claiming service standards that we knew he simply didn't deliver in reality" and"Following yet another discovery of dubious business practice by this business..."were misleading and could be substantiated, and also whether the advert was denigratory of their business.
In its response to the ASA the advertiser relied upon the fact that it had made no mention of the complainant's company name. However, the ASA considered that it would not be difficult for readers to ascertain the complainant's identity in light of the earlier ASA adjudication referred to in the advert. The ASA upheld both complaints; in respect of the specific claims made the ASA noted that the advertiser had not provided evidence in substantiation of the claims. In respect of the complaint regarding denigration of the complainant's business, the ASA considered that the claims in the advert suggested that the complainant's business was unprofessional and untrustworthy, and the complaint was, not surprisingly, upheld.
Although a rather extreme example, this adjudication is a reminder that it does not matter that the subject-matter of an advert is not explicitly identified; the ASA concluded in this case that the subject of the advert (the complainant) was identifiable from text of the advert. This is of particular relevance for advertisers who use comparative advertising in their promotions.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 23/02/2011.