This article provides a selection of the most interesting ASA adjudications from May and a summary of the key issues considered in those adjudications.

During this month the ASA considered complaints on a variety of issues ranging from gambling adverts to the use of the word 'eco' within promotions. Of particular interest are the ASA's decisions relating to sponsored search links and the use of key words in advertising, following the extension of its remit to cover on-line adverts on 1 March 2011.

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This article provides a selection of the most interesting ASA adjudications from May and a summary of the key issues considered in those adjudications.

During this month the ASA considered complaints on a variety of issues ranging from gambling adverts to the use of the word 'eco' within promotions.  Of particular interest are the ASA's decisions relating to sponsored search links and the use of key words in advertising, following the extension of its remit to cover on-line adverts on 1 March 2011.

ADJUDICATIONS

Computers and Telecoms

  1. Yahoo! UK Ltd, 25 May 2011 (it was complained that an advert for internet broadband was likely to cause harm because it condoned and encouraged excess speed and irresponsible driving)

Leisure

  1. Cassava Enterprises (Gibraltar) Ltd, 11 May 2011 (it was alleged that the advert was irresponsible because it played on addiction to encourage people to gamble)
  2. MyCityDeal Ltd t/a Groupon UK, 11 May 2011 (two adjudications where advertised group buying offers were unavailable, where adverts were created and controlled by a German company)

Holidays and Travel

  1. Aurigny Air Services Ltd, 4 May 2011 (links or references to evidence used as a basis for comparative claims should be included within adverts so that consumers are made aware of the provenance of the comparisons)

Health and Beauty

  1. Specsavers Optical Group Ltd, 25 May 2011 (claims that a product or service includes 'the latest' technology must be entirely accurate not only with respect to narrow product types, but also with respect to wider product categories)

Household

  1. Euro Ceramic Centre, 11 May 2011 (a sponsored search link which features the name of a competitor company is not misleading)

Other

  1. Theory Training Solutions Ltd, 11 May 2011 (a sponsored search link is not misleading)
  2. SITA UK Ltd, 11 May 2011 (the use of the word 'eco' in the context of products replacing other products with a higher environmental impact may not be misleading, even where the products could still be more environmentally friendly)
  3. Express Newspapers t/a Daily Express and Superdrug Stores plc, 4 May 2011 (considers the type of evidence that the ASA is likely to accept from advertisers attempting to substantiate promotions using 'free' products where there are issues as to the availability of stock)

General Comment

  1. Substantiating Claims (various adjudications) (the importance of providing adequate information to substantiate claims is discussed)

COMPUTERS AND TELECOMS

1. Yahoo! UK Ltd, 25 May 2011

An advert on a login screen for an e-mail service provider was headed "Faster is funner. Introducing the 2x faster New BT Yahoo! Mail. Find out more about BT Yahoo! Mail Beta". The advert pictured two females in a convertible sports car. The passing scenery was blurred.

Complaint / Decision

Two complainants challenged whether the advert was likely to cause harm, because they believed it condoned and encouraged excess speed and irresponsible driving.

The ASA noted Yahoo!'s evidence that it intended the speed capabilities of Yahoo! Beta Mail to be the main focus of the advert and considered that because the advert showed the car against a blurred background, and was headlined "Faster is funner", speed was the key message.

Upheld: the combination of the headline and the image portrayed speed in a way that might encourage motorists to drive irresponsibly and could therefore be seen to condone anti-social behaviour and irresponsible driving.

This somewhat harsh decision reminds advertisers to be particularly careful when drafting advertising slogans that could touch on issues of social responsibility, albeit unintentionally.

LEISURE

2. Enterprises (Gibraltar) Ltd, 11 May 2011

A banner advert on Facebook on 24 February 2011 for a gambling website stated "Addicted to slots? 888promos.com" and featured a picture of a fruit machine.  Further text stated "Register in 888casino & get 7 spins every week for a whole year ABSOLUTELY FREE! Get the chance to win every day. No deposit necessary."

Complaint / Decision

One complainant challenged whether the advert was irresponsible, because it played on addiction as a means of encouraging people to gamble.

The ASA noted that 888 had removed the advert on notification of the complaint. However, it was concerned that the advert used the concept of addiction to encourage people to sign up to 888.com in order to receive free weekly spins.  It considered that in doing so the advert trivialised gambling addiction, and condoned and encouraged behaviour that could lead to financial, social or emotional harm. The ASA therefore concluded that the advert was irresponsible and upheld the complaint.

This decision is another example of the ASA taking a strict view on adverts involving socially sensitive topics.  Advertisers should be aware of this when drafting promotional materials.

3. Two adjudications relating to MyCityDeal Ltd t/a Groupon UK, 11 May 2011

The first adjudication concerned two internet banner adverts. The first stated "ALL YOU CAN EAT in London £3" and the second stated "XXL - Bouquet Flowers in London" and included a picture of a bouquet of roses with a label which stated "from £8". Both invited the customer to click on the advert.

The second adjudication concerned two Google sponsored search adverts and one banner advert, which each offered 70% off train tickets.

Both adjudications were announced on the same day.

Complaint / Decision

First adjudication: complaints were made by Arena Flowers and a member of the public that the offers made in the adverts were not genuine because they were unable to find the offers after having clicked on the adverts and subscribed to Groupon.

Second adjudication: Ferries Trains Planes Ltd and one member of the public challenged the adverts on the basis that they were misleading because that they were unable to find the advertised offers when they followed the links through to the Groupon website.

In both cases Groupon explained that its search adverts and banner adverts were created and controlled by its German branch and that the UK company had not had any involvement in the creation and execution of online banner advert campaigns.

In the first adjudication the ASA told Groupon that its UK branch should approve all future banner adverts featuring sales promotions that were targeted at the UK. In the second adjudication Groupon informed the ASA that the responsibility for approval of this type of advert would need to remain with the German branch of the company, but that Groupon UK would train its German colleagues on the requirements of the CAP code, so that these would be adhered to in the creation and execution of future campaigns. 

Both adjudications were upheld on the basis that the ASA considered that consumers would believe that the offers made in the adverts would be genuine and available to Groupon subscribers and those following the links on the website. Groupon had not provided evidence that any of the offers in issue were available, nor that they had been taken up by customers.  On this basis the ASA concluded that the adverts were misleading.

Groupon has been firmly within the sights of the ASA over the last six months, and is likely to remain so.  Clearly the fact that the German branch of the company was responsible for creating and executing the adverts was not justification for being in breach of the CAP Code. The UK advertiser remained responsible for adverts aimed at the UK market.

HOLIDAYS AND TRAVEL

4. Aurigny Air Services Ltd, 4 May 2011

A regional press advert and an e-mail for an airline each showed two Christmas trees adorned with baubles and was headlined "400,000 thank yous". Text underneath stated "Thanks to you, we carried islanders on more than 400,000 journeys this year. Over four times as many as our nearest local rival. In fact, evidence suggests our local rival's November passengers have fallen sharply. Our commitment to the islands is deep rooted. Over the last 43 years we've developed a strong network and service that supports the needs of islanders. And with your support, we'll continue to grow. Thank you and merry Christmas from your local airline".

Complaint / Decision

Blue Islands Ltd, the rival airline, challenged the advert on the basis of whether the key claims as to the number of journeys and the rival passenger numbers were misleading and could be substantiated and whether the comparison was misleading and should have been made clear so it could be verified.

All aspects of the complaints were upheld.

The ASA considered that Aurigny needed to provide robust, comparative evidence, which reflected both its own passenger numbers and those of its nearest competitor, in order to substantiate the claim. Because the data provided by Aurigny did not make clear which of Blue Islands' routes were included in the data, which period the data referred to, or how those figures were derived, the ASA concluded that the adverts were misleading.  The ASA also noted that it had not seen any information which explained how that data relating to the rival passenger numbers had been collated or on what basis the negative growth figure had been calculated. It therefore did not consider that the documentation provided was sufficiently robust to substantiate the claim.

The ASA concluded that, given the small market in which the advertiser operated, readers were likely to infer that the comparison being made with Aurigny's "local rival", was referring to Blue Islands. Therefore, the adverts should have set out how the information used to make that comparison could be checked by consumers.

The ASA further stated that where comparisons were being made, advertisers should compare products or services that met the same need or were intended for the same purpose. It therefore considered that it was not acceptable for Aurigny to make a comparative claim based on the number of overall journeys, when that number included routes on which Blue Islands did not compete.

This adjudication emphasises the importance given to the inclusion of links or references to evidence used as a basis for comparative claims within adverts by the ASA, so that consumers are made aware of the basis for any comparisons.  This adjudication also serves as a reminder to advertisers that they should only compare their products with like-for-like products and services manufactured/provided by other companies/traders.

HEALTH AND BEAUTY

5. Specsavers Optical Group Ltd, 25 May 2011

A national press advert for Specsavers was headlined "Some opticians charge extra for digital retinal photography. At Specsavers, we don't". Text underneath stated "Many opticians charge for using the latest optical technology. You pay once for your 'normal' eye test, then pay again for digital retinal photography, a sophisticated process that uses a digital camera to take a picture of the back of your eye and help your optician monitor the health of your eyes ... We also believe that as many people as possible should have access to this new technology, so digital retinal photography is now available in 590 of our stores".

Complaint / Decision

A dispensing optician complained that the advert was misleading because it implied that Digital Retinal Photography ("DRP") was the latest technology, whereas he understood that it had been superseded by Spectral Domain Optical Coherence Tomography ("SDOCT").

The complaint was upheld.

The ASA noted that the two forms of technology offered optometrists different methods in which to make a record of a patient's retina, using different technology and providing different views of the retina.

Whilst the ASA noted Specsavers' response that the technology behind SDOCT had existed before DRP, the ASA understood that SDOCT machines had only become available more recently in optometric practices than DRP. For those reasons, it considered that Specsavers' claim that DRP was the latest technology was inaccurate and therefore it was concluded that the advert was misleading.

This adjudication emphasises the importance of considering implied claims in adverts.  Although the advert made no reference to the SDOCT technology, this became the focus of the complaint.  Therefore, when making claims referring to, for example, 'the latest' technology, it is important to make sure that this is entirely accurate and can be fully substantiated.

HOUSEHOLD

6. Euro Ceramic Centre, 11 May 2011

A sponsored search link for Euro Ceramic Centre that appeared when searching for "Solihull Tiles" in March 2011 stated "Solihull Tiles, A Builder's Best Friend. Your First Call For Tiles" and contained a website address for Euro Ceramic Centre.

Complaint / Decision

Solihull Tiles complained that the advert was misleading on the basis that consumers were likely to infer that it was an advert for Solihull Tiles rather than Euro Ceramic Centre (ECC); and that ECC was not based in Solihull.

Neither aspect of the complaint was upheld:

The ASA noted that the sponsored advert was headed "Solihull Tiles".  However, it considered it was common practice for companies to use the locations they served as well as the product/service they provided in sponsored search results. It also noted that the advert included the web address "euroceramicsbirmingham.co.uk".  As a result, the ASA considered that consumers would recognise that the advert was for ECC.  It also considered that any consumers specifically looking for the complainant's website would easily find the correct link in the main body of the search results.

The ASA further noted that ECC were based in Birmingham, which was within a mile of Solihull, and that the advert stated "euroceramicsbirmingham.co.uk".  It therefore considered that consumers would infer from the advert that ECC were based in Birmingham but also provided services to Solihull.

This adjudication is interesting as it looks at an issued that is being litigated in the Court of Justice of the European Union from a number of jurisdictions including from the UK, the case of Interflora v Marks & Spencer.  A complaint to the ASA is, however, always an option where concerns relate to a sponsored search link.  In this case the complainant company's name was not particularly distinctive and it was easy for the ASA to conclude consumers would not be misled.

OTHER

7. Theory Training Solutions Ltd, 11 May 2011

A Google sponsored search link for booktheorytests.co.uk, stated "Book Your Theory Test - Book Your DSA Theory Test Online All UK Centres. *PASS Protection" booktheorytests.co.uk/DSATheory".

Complaint / Decision

The Driving Standards Agency (DSA) complained that the advert was misleading on the basis that it implied the advertiser was the DSA.

The complaint was not upheld.

The ASA accepted that it was necessary for the advert to state that it was a DSA booking service to make clear what the service was, and did not consider that using the letters DSA in the advert implied that Theory Training Solutions (TTS) was actually the DSA.  The ASA also noted the website address was ".co.uk", rather than ".gov.uk".  It therefore considered that most internet users who saw the advert would be aware that it was not the official DirectGov website. 

This decision applies a similar reasoning to that in the above Euro Ceramic Centre decision. Again, the key issue is that the ASA concluded consumers would not be misled or confused.

8. SITA UK Ltd, 11 May 2011

A circular, distributed in support of Charlton Lane Eco Park, a waste management development, included an artist's impression of the proposed site along with text which stated "Surrey Waste management is working on behalf of Surrey County Council to develop an Eco Park at Charlton Lane, Shepperton ...".  The circular went on to describe the proposal, referring to the aim of diverting as much waste as possible from landfill and producing renewable energy from the waste that cannot be recycled.  It also focused on sustainability and the impact on local air quality. It stated "The Environment Agency (EA) monitors the emissions from the gasifier and ensures the plant is working properly and that strict national and international standards are being adhered to." and stated "ARE THE TECHNOLOGIES PROVEN? Batch oxidation system gasification plants are currently in operation in Dumfries, Scotland and Iceland. An anaerobic digestion facility is currently operating in Deerdykes, Scotland. These facilities are all operating successfully and emissions are within predicted levels".

Complaint / Decision

A local resident complained on a number of bases.

  1. The term "Eco", which was used to describe the development, was misleading on the basis that it implied the park was environmentally friendly, whereas the residents understood that the proposal included an incinerator which would emit pollutants into the atmosphere, some of which would be unfiltered. They also understood the site would be built on greenbelt land.
  2. The question: "Are the technologies proven?", answered by the statement "Batch oxidation system gasification plants are currently in operation in Dumfries, Scotland and Iceland", was misleading because it implied that the Charlton Lane gasifier would use the same technology as the plants mentioned, when the resident understood that an untested gasifier prototype had been proposed.
  3. The claim that existing facilities "are all operating successfully" was misleading, because the resident understood that these facilities had caused, or faced, numerous problems.
  4. The drawings used to illustrate the park were misleading because they did not accurately reflect what the park would look like.
  5. The use of "gasifier" to describe the proposed incinerator was misleading, because the resident understood that gasification was only part of the overall waste combustion process.

The complaints were largely not upheld.

1) Not upheld: the ASA noted that there would be emissions from the site, but that the facility would result in a significant reduction in the volume of waste that would be sent to landfill.  Moreover, the proposed site was due to replace an existing facility which had been built prior to the area being designated as greenbelt land. Although the description of the planned facility as an "ECO PARK" would be understood by some consumers to be a claim that it would be actively beneficial to the environment, the term "Eco" was regularly used to describe developments in technology or functions which resulted in a reduced environmental impact compared to that of previous developments or facilities which had the same function.  For example, "Eco Towns" was a term which had been used to describe government-sponsored new towns which would collectively take on board methods of reducing environmental impacts compared to those created by traditional towns. The ASA considered that within the context of the advert in its entirety, most recipients would understand that the phrase "Eco" referred to the reduction in the environmental impact compared to that of the previous waste disposal facility on that site and that of traditional waste disposal facilities. It therefore concluded that, in this context, the phrase "Eco" was not misleading.

2) & 3) Not upheld: the ASA considered that consumers would interpret the claim "Are the technologies proven?" within the content of the text that followed, which stated that the other facilities "were all operating successfully".  The ASA therefore considered that most readers would interpret the entire text as a claim that the gasification facility planned for the Charlton Lane site had been proven to work successfully, using the same technology which had been used at the other facilities.

Although the ASA understood that the facilities at Iceland and Dumfries "gasified" a different type of waste, the planned facility would be using the same technology. The ASA understood it was accepted that gasification technology had been used at various facilities across the world and that this was a viable way of reducing the volume of waste sent to landfill. Problems had been experienced by the other facilities.  However, the ASA did not consider this negated the claim that they were operating successfully, because they continued to operate and continued to gasify waste. The ASA considered that the claim that the technology was "proven" and "successful" was substantiated by the identified examples and concluded that this aspect of the advert was not misleading.

4) Upheld: the ASA noted the exact design of the building was an ongoing process and that it had evolved significantly through the planning process. However, by the time of the circular, the building was in the latter stage of design process.  The ASA therefore considered that any artist's impression of the structure should have been accurate because the relative height of the chimney stack would have already been determined. The ASA considered that the image of the chimney stack did not make it clear that it would be up to 48 m tall and would therefore be a significant feature of the structure, visible from the surrounding area. The ASA considered that the image did not therefore accurately reflect the likely height of the chimney stack and concluded that the advert was misleading.

5) Not upheld: most readers would not be familiar with the term "gasifier" and would not be aware of the processes involved in turning waste into electricity. Moreover, the exact processes involved in gasification would be unlikely to be of such relevance to readers, rather the implications for the environment on a local and global level.  The advert made clear that the facility would produce nitrous oxide emissions, albeit in line with strict national standards. The ASA therefore concluded that the use of the word "gasifier" was not misleading.

The decisions made in this adjudication are useful to any advertiser wishing to promote 'eco' products.  Of particular note is that the use of the word 'eco' in the context of new products replacing traditional products with a higher environmental impact may not be considered misleading, even if the new products still have an environmental impact.

9. Express Newspapers t/a Daily Express and Superdrug Stores plc, 4 May 2011

A national press promotion (a) and TV advert (b) for free Superdrug vitamins for readers of The Daily Express both advertised "free" vitamins, also referring to terms and conditions including the term "subject to availability".

Complaint / Decision

Two readers challenged the availability of the free vitamins at Superdrug, because they were unable to obtain their free vitamins on the day of the promotion as Superdrug had run out of stock.

The advert had been pre-cleared by Clearcast, which understood that, because the offer had a same-day redemption period, it was implicit to consumers that stocks of the free vitamins were limited.  Clearcast did not consider the TV advert to be misleading because it understood that Superdrug had made provision for the anticipated demand and had included suitable caveats in the advert to warn against unavailability.

The complaints were not upheld.

The ASA considered that Superdrug had made a reasonable estimate of demand based on previous promotions and average sales figures, and had taken steps to ensure that, overall, there was sufficient stock to meet demand.  Whilst it was acknowledged that some consumers at a small number of Superdrug stores appeared to have had difficulty taking up the offer, the ASA understood that this was due to internal stock errors at those stores.  Moreover, Superdrug had tried to avoid disappointing affected consumers by offering three substitute products when stocks ran out.  Bearing this in mind, and because Superdrug had sufficient stock to meet demand for the promotion, it was concluded that the adverts were not misleading.

Although unsurprising, this adjudication is a useful reminder of the ASA's approach to those cases where complaints are made in relation to product offers where stock has run out.  Important issues are the inclusion of clear wording 'subject to availability' in the advert; documentation showing that estimates of required product numbers were made based on the likely redemption figures for recent and similar promotions; demonstration of the provision of regular stock deliveries throughout the offer period; and demonstration of the provision of alternative products should stocks of the offered product run out.

GENERAL COMMENT

10. Substantiating Medical and Cosmetic Claims

This month has seen a number of complaints upheld by the ASA as a result of advertisers providing either no or insufficient evidence to substantiate efficacy claims.  These particularly related to adverts for medicinal and cosmetic products, many of which made somewhat extravagant claims which were highly unlikely to be capable of substantiation. 

One national press advert for a hair supplement featuring before and after photographs and a testimonial was challenged by a competitor and the complaint was upheld by the ASA on the basis that it misleadingly implied that the product could improve thinning hair and reduce hair loss. In addition, the ASA challenged whether the hair health maintenance claims ("..helps nourish my hair from within to keep it in brilliant condition..")  made in the advert we misleading. The advertiser stated it had made a submission to the European Food Safety Authority on the ingredients and provided a review of the available evidence which documented a link between nutritional deficiencies and hair health. However, the ASA noted that there were no approved health claims on the Community Register for the ingredients and that the report contained only limited scientific evidence. Therefore further studies were required to prove the possible link between the nutritional ingredients and hair health. On this basis, the ASA concluded that the claims in the advert that the product could "nourish hair follicles" and keep hair in "optimum health and condition" had not been substantiated and that the advert breached the Code.

Another national press advert for Airogym, an inflatable cushion, claimed that it was "clinically proven to increase blood flow through the veins by up to 5 times", that it "helped reduce the risk of DVT in travellers", that it helped "diabetic circulation" and that it helped "the effectiveness of dialysis treatment". The advert was challenged on the basis that such claims were misleading and could not be substantiated. The advertiser supplied results of a clinical trial and physiological study, plus quotes from a consultant vascular surgeon. However, the ASA concluded that the trial and study were not sufficient substantiation to support the objective claims and that the doctor's quotes did not constitute robust clinical or scientific evidence. Because full details of the clinical trial including individual results for each participant, the number, ages and sex of the participants had not been provided, the ASA was unable to ascertain whether the results were meaningful for the population as a whole and therefore upheld the claims.  

A London Underground poster for Vitabiotics "Immunace" antioxidants, featured a table including the statement "Original formula tested in ground-breaking international research", was challenged on the basis that the claim was misleading because the complainant understood that the research had only been carried out on subjects who had been diagnosed with HIV. The ASA considered that the claim implied that the independent ground-breaking research had demonstrated that Immunace had been effective in promoting the normal function of healthy individuals' immune systems. However, because the trial was only carried out on individuals who were HIV positive and because it achieved statistical significance only in relation to those participants most severely affected by HIV, the ASA considered that the research was irrelevant to the claim in the advert and could not substantiate it. The ASA upheld the complaint on this basis. Vitabiotics also stated that the vitamins and minerals contained in Immunace had been approved by the European Food Standards Agency for use by healthy individuals to aid the normal function of their immune systems, but this was not specifically addressed by the ASA.

The ASA challenged the claims made on a website for a weight loss supplement, Meratol, marketed by Advanced Health Limited, on the basis that they could not substantiate claims that the product aided weight loss by reducing the absorption of carbohydrates. Advanced Health relied on documentation including from the manufacturer of one of the ingredients of the product based on in vitro studies rather than human-based clinical trials on the product itself.  The ASA concluded that the documentation relied on was not sufficiently robust to support the claim and upheld the complaint.

A leaflet for a water treatment device which made a number of efficacy claims, including that the water it produced had antibacterial, anti-aging, hair improving, insect repelling (when sprayed on plants) and health (improvement or relief of medical conditions including osteoporosis, arthritis, eczema, allergies and hayfever) qualities, was challenged by the complainant on the basis that these claims were misleading and could not be substantiated. In addition, the complainant challenged whether the customer testimonials featured in the advert were misleading and could be substantiated. The ASA also challenged whether the reference in the leaflets to serious medical conditions could discourage essential medical treatment for such conditions. The advertiser provided copies of papers from the 1998 Annual Functional Water Symposium which looked at the effects of electrolysed water in various circumstances. However, the ASA unsurprisingly considered that this was not sufficient evidence to substantiate the objective claims. In relation to the testimonials, the ASA considered that these were likely to be understood by readers to be factual statements, therefore because no factual evidence as to their accuracy had been provided, the ASA concluded that they were misleading and upheld the complaint. The final challenge, that the advert could discourage people from seeking essential medical advice for the conditions listed, was upheld on the basis that the referral to various conditions in the testimonials implied that drinking the water was a treatment for those conditions.

Although extreme examples and unsurprising adjudications, these are a reminder that health, cosmetic and general efficacy claims in advertisements need to be properly substantiated and supported by robust scientific evidence.  How this criteria will be met will depend on the circumstances and the nature of the claims, however, this is likely to mean statistically significant scientific studies. In addition, advertisers should adhere to the following: 

  1. reports and scientific studies and trials should be complete and meaningful and include full details of the samples tested, including number, age and sex of the participants;
  2. scientific studies should be performed on participants from the relevant demographics to which the product is intended to be marketed;
  3. medicinal claims should not made without proper authorisation; and
  4. claims and testimonials that are likely to be interpreted as factual should not mislead

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 30/06/2011.