This article provides a selection of the most interesting ASA
adjudications from March and a summary of the key issues considered
in those adjudications. These include several adjudications on the
use of internet-based promotions, and in particular the first ASA
adjudication concerning celebrity endorsements on
Twitter.
In addition, BCAP is currently consulting on proposed amendments
BCAP Code rules on comparative advertising and pricing. BCAP is
proposing the removal of rule 3.39, which would mean that there
would no longer be a requirement for comparative price claims to be
based on identical or substantially equivalent products. This
amendment would potentially widen the scope of comparative price
claims that advertisers can make to include those between products
which meet the same need or purpose, but which are not identical.
The changes would bring the Code in line with the requirements of
the Consumer Protection from Unfair Trading Regulations 2008 and
the Business Protection from Misleading Marketing Regulations
2008.
BCAP is also proposing to amend rule 3.19 to allow VAT-exclusive
prices to be included in advertising which is clearly targeted at
business customers (who generally either do not pay VAT, or can
recover it). The consultation ends on 4 May 2012.
To view the article in full, please see below:
Full Article
ADJUDICATIONS
COSMETICS
1. Hubert Burda Media UK t/a Love It!, 7 March 2012 (The ASA considered a magazine competition with a cosmetic surgery prize)
COMPUTERS AND TELECOMS
2. Strictly Electronics Ltd t/a ComEuro.net, 28 March 2012 (The ASA concluded that the use of a logo comprising the initials 'CE' inside a circle of 12 yellow stars misleadingly implied that the company fell under the jurisdiction of the EU)
FASHION
3. Harvey Nichols & Company Ltd, 21 March
2012 (The ASA investigated whether a Christmas advert
referring to 'the walk of shame' demeaned women and made
class distinctions)
4. Stylefantasia Ltd t/a Stylist Pick, 14 March
2012 (an online shoe retailer's advert failed to
clarify that it was a subscription service)
5. sit-up Ltd t/a Bid TV, 21 March 2012 (The ASA
concluded that the claims "Swiss precision mechanism" and
"Swiss making heritage" implied that a watch was made in
Switzerland)
FOOD & DRINK
6. Mars Chocolate UK Ltd, 7 March 2012 (The
first ASA adjudication on the use of Twitter for celebrity
endorsement advertising)
7. Kellogg Marketing and Sales Company (UK) Ltd, 7 March
2012 (Claims relating to sugar and health on a website for
children's cereal were found to be misleading)
8. Co-operative Group Ltd, 7 March 2012 (The ASA
considered whether the advertisers had taken sufficient precautions
to ensure that an online competition was fairly administered)
9. ASDA Stores Ltd, 7 March 2012 (Tesco challenged
a comparative pricing claim in an ASDA national press advert)
10. LivingSocial Ltd, 7 March 2012 (The ASA
considered whether an alcohol sales promotion was socially
irresponsible)
11. Marlow Foods Ltd t/a Quorn Foods, 21 March
2012 (The ASA considered claims made in relation to a new
fish-substitute food range by Quorn)
TRAVEL & TOURISM
12. Ryanair Ltd, 7 March 2012 (Press adverts by Ryanair which heavily referenced that fact that Thomas Cook was in financial difficulty were considered)
HOUSEHOLD
13. Vax Ltd, 28 March 2012 (the ASA considers
claims to 'outstanding' product performance)
14. Ergoflex Ltd, 21 March 2012 (website adverts
claiming that products had featured in various media editorials or
product reviews were found to be misleading)
15. DFS Trading Ltd, 28 March 2012 (the ASA
considered that there was no requirement for credit advertising to
include the statement 'subject to status')
OTHER
16. Paramount Pictures UK, 14 March 2012 (Viewers challenged whether TV adverts for a horror films were likely to cause distress)
COSMETICS
1. Hubert Burda Media UK t/a Love It!, 7 March 2012
A competition in Love It! magazine was titled "Free tummy
tuck for one of our lucky readers!". Below this, text stated
"It's week two of our month-long plastic surgery giveaway
* say goodbye to your saggy stomach with a tummy tuck".
Smaller text below then stated "We know you have body issues.
Bits you'd like to nip, tuck, increase, reduce....Well this is
your chance... Perhaps you've managed to lose an amazing amount
of weight, but it's left you with saggy skin that no amount of
exercise can tighten up. Or maybe having kids has given you a
bulging belly that dieting just won't budge. Whatever your
reasons, we can help you get a flatter, tighter tummy".
Further text explained that readers who texted with the correct
answer to a question would then be asked a range of questions to
assess their suitability for surgery and to explain why they wanted
to have the surgery. A shortlist of entrants would then be chosen
by 'top medical professionals' and Love It! readers would
be given the opportunity to vote for the entrant they felt most
deserved the surgery.
Full terms and conditions detailed the requirement for a small administration fee to be paid prior to entry and elaborated on the selection process which included passing various general health questions, a medical and psychological assessment for the finalists and a consultation with the surgeon to determine if the treatment was suitable for the individual. The competition also explained that the first 200 entrants who correctly answered the question also secured a 20% discount on standard package prices for future surgery at the McIndoe Centre during the next three months
Complaint/Decision
A complainant challenged whether the competition was irresponsible because it promoted an irresponsible attitude to cosmetic surgery. The complaint was not upheld.
Hubert Media argued that they did not consider this a 'competition' but a 'selection process and give-away', but the ASA disagreed and said that, because entrants had to text a number and answer a qualifying question which relied upon a degree of knowledge before they could take part, it was a competition.
While the ASA understood that some readers might find the competition distasteful, they considered that (i) the strict enforcement of the selection process, (ii) the time period in which readers could consider whether to apply (almost 2 weeks), and (iii) the fact that any selected entrants then had to fill out a suitability questionnaire and be assessed by medical professionals were all factors which indicated that the selection process had been conducted responsibly.
The ASA also noted that the advert provided additional information on the reasons why people might consider undergoing such a procedure, which allowed entrants a further opportunity to evaluate whether they wished to enter. The ASA also considered that the terms and conditions were displayed clearly and highlighted to readers that they would only be able to win the procedure if they were deemed suitable for it.
In addition, the ASA considered that, although parts of the text were targeted at body insecurities, this was not irresponsible.
In respect of the discount off future surgery offered to the first 200 successful entrants, the time period of 3 months in which to use the discount was considered to be sufficient for recipients to consider if they wished to undergo a surgical procedure.
Overall the ASA considered that the competition was not irresponsible and did not promote an irresponsible attitude to plastic surgery.
This adjudication is consistent with another adjudication this month involving a time limited Groupon offer for facial injections, a medical procedure. In that adjudication, although it considered that it was important that consumers were not pressured into a decision to purchase cosmetic procedures, that would have long lasting physical effects, the ASA considered that 72 hours was a sufficient time period for consumers to decide whether or not to purchase a cosmetic procedure. It was noted that a refund was available at any point prior to redemption of the voucher. As a result, the advert was not held to place undue pressure on consumers and was therefore not irresponsible.
However, in another adjudication this month involving Groupon and a promotion for "Choice of Facial Injection Treatments On One (£49) or Two (£89) Areas at Bath Facial Aesthetics (Up to 77% Off). Two complainants challenged whether the sales promotion advertised a prescription-only medicine to the public. Despite Groupon's argument that the promotion related to dermal filler treatments, the ASA noted that the promotion did not specifically refer to Restylane or Juvaderm, or dermal filler treatments and although the promotion did not use the term Botox, the ASA nevertheless, and for a number of reasons, considered that the reference to "Facial Injection Treatments" in the promotion referred to Botox, a prescription only medicine. As such, the advert was found to breach CAP Code rule 12.12 (Medicines).
COMPUTERS AND TELECOMS
2. Strictly Electronics Ltd t/a ComEuro.net, 28 March
2012
A logo on ComEuro.net consisted of the initials "CE"
inside a circle of 12 yellow stars next to the company name, which
was overlaid over a map of Europe.
Complaint/Decision
The complainant challenged whether the logo was misleading on the
basis that it implied the company fell under the jurisdiction of
the EU because the "CE" initials resembled the CE mark,
which appears on products marketed in the European Economic Area to
confirm that the product conforms with the requirements of EC
directives, and the circle of twelve yellow stars was the emblem of
the EU.
The complaint was upheld. The ASA acknowledged that the letters
'CE' were the initials of ComEuro.net, that the font used
in the logo differed from the font used for the well-known CE mark
for products marketed in the EEA, and that the advertiser supplied
consumers throughout the EU. However, it considered that the strong
resemblances between the stars in the logo and the EU emblem and
the use of the initials 'CE' were likely to mislead
consumers, who would interpret the advert as ComEuro.net falling
under EU jurisdiction and being subject to EU consumer laws.
Because the company was registered in Guernsey (not a member of the
EU) and this was therefore not the case, the logo was held to be
misleading.
Care must be taken not to use logos or wording which suggest an
association, or conformity with the requirements of an entity or
group, where this is not the case.
FASHION
3. Harvey Nichols & Company Ltd (HNC), 21 March
2012
This adjudication concerned a YouTube advert for Harvey Nichols. It
showed several women in eveningwear travelling home in the early
morning, apparently after a night out. The women generally appeared
uncomfortable and dishevelled. Onscreen text stating "Avoid
the Walk of Shame this Season" appeared, followed by imagery
of a smartly-dressed woman approaching a flat entrance and
confidently acknowledging a postman.
Complaint/Decision
Four complainants challenged whether the advert was offensive on
the following grounds: that it was demeaning to women; that it
reinforced negative stereotypes of women, particularly those who
chose to have casual sex; that it implied sexual violence (one of
the women was wearing ripped tights); that it suggested that lower
class women who had one-night stands should feel shame, whilst more
wealthy women who behaved in the same way should feel proud; and
that it mocked women who did not have 'model'
figures.
None of the complaints were upheld. The ASA considered that,
although the implication of the phrase "walk of shame"
was that the women had had casual sex the previous night and the
advert mainly depicted women who looked dishevelled and
uncomfortable, the advert did not reinforce negative stereotypes of
women and was not sexist or demeaning, because the final imagery
showed a woman who appeared neat and confident.
The ASA agreed with Harvey Nichols that ripped tights was a common
everyday occurrence and concluded the majority of viewers would not
interpret this as implying sexual violence.
In relation to the suggested class differences, the ASA considered
that the images did not necessarily imply that the women belonged
to a specific social class or had a certain level of wealth, or
that it mocked less wealthy women.
Overall the ASA considered that, while some people might find the
advert theme distasteful, it was unlikely to cause serious or
widespread offence.
Three similar adjudications this month involved women featured in
adverts in ways that complainants considered offensive. The ASA did
not uphold any of the complaints. In Agent Provocateur Ltd,
7 March 2012, the ASA considered an online advert on the
luxury lingerie retailer's website showing a woman in a
nightgown in her home answering the telephone, then several women,
who were wearing revealing lingerie, appeared to attack the
woman's body before she re-appeared wearing similar revealing
lingerie to the group. The advert was considered by the ASA to be
highly stylised and clearly fictional, and thereby unlikely to be
interpreted as disturbing or offensive.
In Puig (UK) Ltd, 14 March 2012, the ASA
considered a TV advert for fragrances which featured a line of
people waiting outside a nightclub and a doorman pointing towards a
sign which stated "THIS IS A PRIVATE PARTY". A woman was
seen surreptitiously crawling through the crowd and a man was
prevented from trying to enter via a back door. Various people were
seen socialising inside the party. A woman was shown from behind,
apparently topless, facing a large stuffed polar bear. Another
woman was shown, again from behind, throwing open her coat causing
a shocked reaction from another woman standing in front of her. The
ASA concluded that the advert constituted a stylised image of a
modern fantastical party scene, and therefore the fleeting partial
nudity and associated innuendo was not excessively sexual or
provocative and did not merit a timing restriction to prevent
broadcast at times when children were likely to be watching.
In an adjudication involving Figleaves, 14 March
2012, a poster advert of a woman wearing lingerie and stilettos was
held to be relevant in the context, and not overtly sexual.
However, in this case a placement restriction to prevent children
viewing the advert was warranted because the woman's facial
expression and body language were sexually suggestive. As this
restriction had already been applied, the advert was not considered
socially irresponsible. In this adjudication, the ASA adopted the
approach set out in their statement on sexual imagery in outdoor
advertising, and applied on a number of occasions subsequently.
4. Stylefantasia Ltd t/a Stylist Pick, 14 March 2012
A TV advert featured numerous different shoes alongside on-screen
text that stated "All £39.95", while a voice-over
stated "A message for heelaholics everywhere from your soul
mates at stylistpick.com. Because we like shoes like you like
shoes, every day this month we're giving away 12 must-have
pairs to one of our members. Sign up for free, find your style and
you could win free heels every month for a whole year. Wow!".
Additional on-screen text at the bottom of the advert stated
"All shoes £39.95. Monthly subscription occurs upon
first purchase. 18+. T's and C's apply".
Complaint/Decision
One complainant challenged whether the advert was
misleading because after making a purchase, she discovered she was
required to pay a £39.95 monthly membership fee regardless of
whether or not a purchase was made.
Although the complainant had misunderstood the mechanics of the
subscription, in that she was not required to pay £39.95 per
month regardless of whether or not a purchase had been made, the
ASA noted that once the first purchase was made, customers were
subscribed to the service and were charged £39.95 per month
in exchange for store credit, unless they actively selected a
purchase or clicked to skip the month by the fifth day of the
month, each month.
The ASA considered that, despite the references to Sign-up for
free" and "Monthly subscription occurs upon first
purchase", the advert generally looked like a typical shoe
retailer TV advert with a range of shoes and accompanying prices
being shown in succession rather than a subscription service. The
voice-over focused on the competition aspect and did not refer to
the commitment a customer would make by purchasing the shoes
advertised. The ASA considered that the onscreen text was the only
indication given that this was a subscription service, and because
this was likely to be a significant factor in the consumers
decision whether to make a purchase, the advert should have made
this aspect clearer. The ASA therefore considered the advert to be
misleading.
This adjudication shows that clear qualifications are required
where images or voiceover in an advert may otherwise give a
misleading impression.
5. sit-up Ltd t/a Bid TV, 21 March 2012
This adjudication concerned a complaint against a teleshopping
broadcast on Bid TV for an Ingersoll watch, in which the presenter
stated that features of the watch included "a Swiss precision
mechanism" and that the Ingersoll brand "are very, very
proud of their Swiss making heritage".
The complainant challenged whether the advert misleadingly implied
the watch was made in Switzerland. The complaint was upheld.
Although Bid TV had provided evidence that the movement of the
watch was manufactured in Switzerland, they considered that, in the
absence of any qualification to the contrary, viewers were likely
to understand from the claims made that the watch itself was made
in Switzerland. Because this was not the case (the watch was
manufactured in China), the ASA concluded that the advert breached
the Code.
This decision is consistent with an adjudication which was upheld against Heineken last summer in which the ASA rejected Heineken's arguments that its press advert featuring a picture of a glass of Kronenbourg 1664 with text stating "The French are famous for many things, hurrying isn't one of them. So naturally a beer from Strasbourg, Eastern France is made rather slowly..." was merely highlighting the heritage of the beer, and found instead that it implied that the product was brewed in France. The ASA therefore considered the advert to be misleading.
Both of these decisions can be contrasted with another decision in the same month as the Heineken decision in which a complaint challenged whether the claim "Designed and engineered in Britain" was misleading because it implied that the car was manufactured in Britain, whereas only the final assembly was done in Britain, with the majority of the manufacturing process taking place in China. In that case the ASA did not consider that the average consumer would infer from the claim that the car was built in Britain and the complaint was not upheld against MG Motor UK Ltd.
FOOD & DRINK
6. Mars Chocolate UK Ltd, 7 March 2012
Two series of tweets from the official accounts of Rio Ferdinand
and Katie Price were posted on Twitter, both relating to Snickers
bars.
The tweets from Rio Ferdinand stated "Really getting into the
knitting!!! Helps me relax after high-pressure world of the
Premiership", "Can't wait 2 get home from training
and finish that cardigan", "Just popping out 2 get more
wool!!!", "Cardy finished. Now 4 the matching
mittens!!!" and "You're not you when you're
hungry @snickersUk#hungry#spon ...". The final tweet included
a picture of Rio Ferdinand holding a Snickers bar.
The tweets from Katie Price stated "Great news about
China's latest GDP figures!!", "Chinese leaders are
now likely to loosen monetary policy to stimulate growth.
Yay!!", "OMG!! Eurozone debt problems can only properly
be solved by true fiscal union!!! #comeonguys", "Large
scale quantitative easing in 2012 could distort liquidity of govt.
bond market. #justsayin" and "You're not you when
you're hungry @snickersUk #hungry #spon ...". The final
tweet also included a picture of Katie Price holding a Snickers
bar.
Complaint/Decision
Two complainants challenged whether the adverts were obviously
identifiable as marketing communications. The complaints were not
upheld.
The ASA disagreed with Mars' view that the first four tweets
only became marketing communications once the final fifth tweets
were posted because the first four tweets did not include any
reference to the products or the advertiser. The ASA considered
that each tweet in each series formed part of an orchestrated
advertising campaign. The tweets therefore became part of an
overall marketing communication at the point each was posted.
The ASA considered that the first four tweets in each series served
as 'teasers', which, due to their nature, were likely to
generate additional interest in the celebrities' postings. It
was noted that those tweets did not make any reference to the
product or the advertiser and were posted in relatively quick
succession (all of the tweets in each series were posted within an
hour of each other). In addition, the fifth 'reveal' tweets
showed the celebrities with the product and included the text
"You're not you when you're hungry @snickersUk #hungry
#spon ..." The ASA considered that the combination of those
elements was sufficient to make clear the tweets were advertising
and that consumers would then understand each series of tweets was
a marketing communication (#spon is commonly used on Twitter and
stands for 'sponsored').
In that particular context, and given the relevance of the first
four tweets to the "You're not you when you're hungry
..." strap line in the 'reveal' tweets, the ASA
considered that it was acceptable for the first four tweets to not
be individually labelled as being part of the overall marketing
communications (this may be partly because these tweets did not
feature any references to the products and were all posted in
relatively quick succession). The complaints were therefore not
upheld.
The ASA have said that they will assess each advert on its own
merits, but are likely to take into account factors such as the
time-lapse between any "teaser" tweets and the
advertising reveal, the audience's understanding and the
context of the tweets in deciding whether the tweets are
sufficiently recognisable as an advertisement. The CAP Executive
has published further advice on recognising marketing
communications and identifying marketers in which it cites this
adjudication.
Whilst CAP is keen to point out that the Code does not preclude
innovative approaches, such as spoof adverts, these should be
'obviously identifiable' and designed and presented in a
manner that ensures they are clearly recognisable as advertising
material. Marketers must avoid misleading recipients, particularly
where the result could cause fear or distress. The CAP also noted
that extra care is needed for marketing communications in digital
media, which can be more intrusive and for which consumers might
not be as sophisticated or experienced at receiving or identifying
as marketing communications. Marketers are also advised to check
they are not potentially in breach of The Consumer Protection from
Unfair Trading Regulations 2008 (CPRs), by undertaking the
prohibited commercial practice of falsely claiming, or creating the
impression, that they are not acting for purposes relating to their
trade, business, craft or profession, or falsely representing
themselves as a consumer.
7. Kellogg Marketing and Sales Company (UK) Ltd, 7 March
2012
This adjudication concerned a website for a children's cereal
titled "Sugar & health". Additional text stated:
"Sugar gets a lot of bad press, and we are frequently being
told to 'watch out for sugar'. But why is this? Is it
detrimental to health? Let's see what the experts say. An
independent dietitian [sic] has gathered the evidence so you can
see the facts for yourself. THE FACTS FROM THE EXPERTS A panel of
world health experts recently reviewed all the scientific evidence
and concluded that a high sugar intake is not related to obesity,
or the development of diseases such as heart disease, diabetes,
high blood pressure or cancer. Nor was it connected to behavioural
problems, such as hyperactivity, in children (1)(2). As well as
this, the panel did emphasise the beneficial role that
carbohydrates like sugars play in health". (1) and (2)
referred to sources at the bottom of the page.
Complaint/Decision
One complainant challenged whether the claim that World
Health Organisation (WHO) experts had concluded high sugar intake
was not related to obesity, heart disease, diabetes, high blood
pressure, cancer or behavioural problems in children, in the
context of a website promoting a children's cereal brand, was
misleading.
Although the ASA acknowledged that Kellogg's had based their
claim on credible scientific evidence and reviews, the complaint
was upheld. The ASA considered various literature reviews,
scientific papers and expert reports in reaching its decision and
concluded that the evidence did generally support the claims that
experts did not believe sugar was related to obesity, heart
disease, diabetes, high blood pressure, cancer or behavioural
problems in children. However, it concluded that by including
claims that high sugar intake was not related to diabetes, cancer
and obesity, Kellogg's had overstated the certainty of the
experts' conclusions, and had failed to state important caveats
in relation to some health conditions (particularly obesity).
It considered that the fact that no qualifying words were used in
the advert implied that there was absolute certainty about the
claims made. Because the majority of the information about the
relationship between dietary carbohydrates, sugars and health came
from observational epidemiological studies, these were not able to
prove causality.
Given that various key health bodies recommended restricting sugar
intake and taking into account the importance of accuracy in health
and nutritional information relating to children's food
products, the ASA considered that the claims were misleading. The
ASA noted that the website prominently featured the Coco Pops logo
and brand character, so decided that consumers would be likely to
relate the information contained on the webpage to the Coco Pops
products, as well as to sugar in general. The ASA considered that
it was particularly important for health and nutritional
information to be accurate for claims relating to children's
food products. This high standard should be noted by those
advertising similar products.
Similar issues were considered in an adjudication concerning
Chewits sweets. The Alliance for Better Food &
Farming complained that an internet game, the object of which was
to direct an animated dinosaur to locate all nine flavours of
Chewit sweets which were hidden within British landmarks, gave
children the misleading impression that eating sweets was
equivalent to eating fruit because various fruits and sports
equipment displayed at the bottom of the screen transferred to the
top of the screen once the sweets had been collected. In this
adjudication, the ASA considered that it was common for
fruit-flavoured foods to use images of the fruits in their
marketing. In conjunction with the fact that images of ice cream
and cola (which were also flavours of Chewits) also featured and
that the game was clearly set in a fictitious situation, the ASA
concluded that the game was unlikely to give a misleading
impression of the product's nutritional and health
benefits.
8. Co-operative Group Ltd, 7 March 2012
This adjudication concerned a Facebook competition for sandwich
design which included the text "Design a sandwich in our
unique competition and the winner will receive £1,000 in cash
plus the sandwich will go on sale in our stores with their name on
it! It's all in the making. Enter now ... Ts and Cs apply. See
website for details".
Complaint/Decision
The complainant, who was one of the competition finalists,
challenged whether the competition had been administered fairly as
they believed the winning entry had breached the terms and
conditions.
The complaint was upheld. From the 3,000 entries to the competition, six sandwich designs were selected to appear on a microsite within the Co-operative website where the public could vote for their favourite entry. A cookie-based tracking system was used to register votes as a means of tracking the activity of individual internet users because the rules of the competition stated that only one vote per person was permitted during the voting process. However, the Co-operative conceded that this system was open to abuse and that and that a member of the public could register more than one vote by disabling or clearing the cookies on their computer. Although the Co-operative had taken steps to remove duplicate votes, the ASA considered that the system used was not sufficiently robust to ensure that the 'one vote per person' rule could reliably be enforced, therefore it concluded that the competition had not been administered fairly.
This adjudication makes clear that advertisers must ensure that
they are able to administer competitions in accordance with the
rules which they set. Online voting competitions are a great way of
encouraging consumer engagement with a brand, but issues concerning
whether a competition is fair can result in a variety of negative
consequences.
9. ASDA Stores Ltd, 7 March 2012
This adjudication concerned two national press adverts for
supermarket price comparisons.
The adverts included the wording "Only one supermarket is ...
always 10% cheaper or we'll give you the difference
guaranteed."
A banner at the top of the first advert contained a collection of
roundels which stated 'SALE', 'Half Price',
'Price Drop', '50% off', 'Price drop',
'cheap'. The second advert, stated "ONLY ONE
supermarket ... ... has 1,451 prices cheaper". It included a
graphic which showed that Morrisons had 482 products cheaper, Tesco
had 586 products cheaper, ASDA had 1,451 products cheaper and
Sainsbury's 613 products cheaper. Both adverts included other
qualifying text.
Complaint/Decision
Tesco challenged whether the claim "Only one
supermarket is ... always 10% cheaper" in both adverts was
misleading.
The complaint was upheld.
ASDA contended that the claim was a price promise, not a lowest
price claim. However, given that " ... always 10%
cheaper" appeared in bold text in the middle of the various
'SALE', 'Half Price', 'Price Drop' claims
in advert 1, the ASA considered that consumers were likely to
interpret these claims as referring to the price of ASDA goods. It
was therefore considered to be an absolute 'lowest price'
claim. Although the footnote explained ASDA's price promise,
the ASA held that this qualification contradicted ASDA's
absolute claim that they were always the lowest on price and was
therefore misleading.
The ASA considered that the claim "ONLY ONE supermarket ...
... has 1,451 prices cheaper" in advert 2 made clear that ASDA
did not always have the cheapest prices and offered a price
promise. However, because this advert also included the claim
"Only one supermarket is ... always 10% cheaper", the ASA
considered that consumers would interpret this as a lowest price
claim.
It was therefore held that the two parts of advert 2 were
contradictory. Consumers would be unclear as to whether ASDA
offered a lowest price claim or a price promise, thereby rendering
the claims misleading.
In an adjudication on a similar issue involving an email sale
advert for Photobox Ltd this month, the claim
"up to 50% off everything" was held to be misleading
because the promotion excluded various products. Although a
qualification detailed the exclusions, the ASA considered that
these constituted significant restrictions to the offer and
therefore contradicted the claim.
10. LivingSocial Ltd, 7 March 2012
This adjudication concerned an alcohol sales promotion on
LivingSocial's website which featured a photo of a bartender
preparing four cocktails, and text which stated "Four Crafted
Cocktails or £30 to Spend on Beer, Wine, and Spirits ...
Halloween, Bonfire Night ... Christmas - we're bang in the
middle of the party season and it's time to spread our social
wings. Today's hedonistic deal from the newly re-branded, new
look Adventure Bar is your ticket to the best party in town.
Shuffle over £14 and you'll get access to four crafted
cocktails from the brand new menu -- a £40.80 value.........
For the purists amongst you, £14 will get you £30 to
spend on beer, wine, and spirits. At the bottom of the advert, the
terms were listed under the heading "the fine print" and
stated "limit one purchase per person - limit one voucher per
group per visit - entire value must be used in a single
visit".
Complaint/Decision
The complainant challenged whether the advert was socially
irresponsible because it encouraged excessive drinking.
Although the ASA noted that certain aspects of the advert such as
'Today's hedonistic deal' might support the
complainant's point, they focused on the limitation of the deal
to one purchase per person and one voucher per group per visit. The
ASA considered, as a result, that the promotion targeted groups on
a night out, as opposed to individuals, with the main point of the
advert being the promotion of the bar as a London venue for a night
out and the promotion of the different cocktails available there.
The ASA considered that the amount of alcohol being promoted was
not excessive when combined with the one voucher per group limit.
The ASA therefore held that the advert was not socially
irresponsible and did not encourage excessive drinking.
This adjudication is consistent with the ASA's adjudication in
relation to poster adverts produced by Bargain Booze, featuring the
slogan "WE LOVE STUDENTS! WIN a year's supply of
drink!". In that case, the ASA did not uphold complaints that
the advert promoted irresponsible drinking because the alcohol
prize was provided weekly, which (although meaning that the prize
winner would receive a maximum amount, which, if consumed all at
once, was over the daily recommendation) it considered reasonable
in light of the way in which wine and beer was packaged and
traditionally sold. In addition, it considered that a weekly
collection or distribution was less likely to encourage excessive
drinking than prizes collected or distributed on a monthly or
quarterly basis.
11. Marlow Foods Ltd t/a Quorn Foods, 21 March 2012
This adjudication concerned a website advert which stated
"Exciting new fish range in stores now. We're doubly
excited this month. Not only can we announce our new fish range,
but we might also put an endangered meal back on the menu.....?
Popular fish like cod and tuna are endangered by overfishing. And
sustainable alternatives, like pacific cod, are a bit heavy on the
food miles. So, never ones to shy away from a global challenge,
Quorn" brings you fish, but without the fish-in". Further
text stated "Tuck into classics including Fish-less Fingers
and Tuna Style and Sweetcorn Crispbakes. They're full of
flavour, a source of protein, and the Fish-less Fingers are
enriched with healthy omega 3. Oh, and all with 0%
fish....".
Complaint/Decision
The Seafish Industry Authority challenged whether:
a) the claim that cod and tuna were endangered species was
misleading and could be substantiated;
b) the advert misleadingly implied Quorn's fish range offered
the same benefits of omega-3 found in oily fish; and
c) the advert misleadingly implied Quorn's fish range offered
the same general health benefits as fish.
The first complaint was upheld, but the other two were not. In
relation to the first complaint, the ASA considered that the
wording used implied that all cod and tuna species were endangered.
The ASA noted that this was not the case. The ASA acknowledged
that, although there was no internationally recognised definition
of "endangered", the International Union for Conservation
of Nature (IUCN) were considered a global authority on the
conservation status of species. Marlow Foods had provided evidence
that IUCN had classed some, but not all species of cod and tuna as
endangered, but there was no evidence that all cod and tuna species
were endangered. Because the ASA considered that a species'
conservation status could be an important factor in consumer
purchasing decisions, the claim was held to be misleading.
In relation to the second complaint, the ASA was satisfied with the
level of evidence provided, which showed that the omega-3 in the
advertised product was the same type as that found in fish and that
it was present in the product in a sufficient amount to merit the
claim 'a source of omega-3 fatty acids'. Because the advert
did not refer to oily fish, it did not imply that the benefits
offered by the product were the same as those of oily fish. In
addition, the ASA noted that consumers would be aware that omega-3
could be obtained from a variety of sources, and that there might
be differences between the health benefits of those sources
In relation to the third complaint, the ASA considered that the
evidence provided by Marlow Foods showed that the claims made about
the products were accurate and that Marlow Foods were authorised to
make such nutritional claims. The ASA considered that, although the
advert made no direct comparison between health benefits of the
product and those of real fish, consumers were likely to consider
this when viewing the advert. However, the ASA concluded that
because the advert did not claim or imply that the product offered
the same general health benefits as fish it was not misleading.
TRAVEL & TOURISM
12. Ryanair Ltd, 7 March 2012
This adjudication concerned press adverts which were headed
"bye bye Thomas Cook". Extracts of news stories were
included, which stated "Thomas Cook in dire straits..."
and "... accumulated debts of nearly £1 billion -
Source: www.dailymail.co.uk 22 Nov 2011". Further
text stated "Book Ryanair. over 3 billion in cash
reserves". One advert also stated "Ryanair - guaranteed
to keep flying this Christmas", with others also stating
"We're financially secure" and "Ryanair -
guaranteed to keep flying".
Complaint/Decision
A total of fifteen complainants raised between them four issues
with the adverts: (i) that they were offensive because they mocked
Thomas Cook's financial difficulties; (ii) that they were
likely to cause fear or distress to Thomas Cook customers and
employees; (iii) that they denigrated Thomas Cook by falsely
implying it was likely to go into administration and that it was
risky to book with them and (iv) that they implied that Thomas Cook
would have ceased trading by Christmas 2011.
The first two complaints were not upheld. The ASA considered that,
although potentially distasteful, the use of 'Bye Bye Thomas
Cook' was unlikely to cause serious or widespread offence. The
ASA considered that there had been widespread media coverage of
Thomas Cook's financial difficulties and that customers and
employees were therefore likely to be aware of this. The ASA
considered that although the adverts might have added to customer
concerns about their holidays and employee concerns about their
jobs, the content was unlikely to cause fear or distress in the
context of an advert for a competing airline.
The two other complaints were upheld. The ASA considered that,
although the adverts only reproduced factual headlines that had
already been published, that there had been widespread media
coverage of the issue and that customers were likely to be aware of
the financial difficulty that Thomas Cook were in, the use of
'Bye Bye Thomas Cook' alongside the newspaper headline
extracts would lead consumers to believe that Thomas Cook was
likely to go into administration and that it would be risky to book
holidays with them. The ASA therefore considered the adverts to be
misleading and denigratory. Similarly, the use of 'Bye Bye
Thomas Cook' alongside the newspaper headline extracts and the
text 'Ryanair – Guaranteed to keep flying this
Christmas' implied that Thomas Cook would cease trading by
Christmas 2011. As that was not the case, the ASA therefore
considered the claims to be misleading.
The adjudication upheld against Point-2 Equine
Ltd also involved a complaint by a competitor that an
advert was denigratory. In the magazine advert, Point-2 Equine
stated that their product was the only CE certified product of its
type in the world and claimed "Riders Beware ... ",
" ... there are some other brands of air jackets being peddled
into the market ... " and "Please contact trading
standards ... ". Although there was no direct reference to the
competitor, the magazine in which it was placed contained an
article referring to the launch of the competitor's product in
the UK and referred to the fact that rumours had circulated that
the competitor was trading illegally without the CE European safety
standard approval. Point-2's claimed that they had not known
about the article when they had placed the advert, but the
competitor disputed this. The ASA considered that consumers reading
the article before of after seeing the advert would be expected to
link the two and assume the advert claims referred to the
competitor. Therefore, the ASA considered that the claims were
denigratory and discredited the competitor's business.
HOUSEHOLD
13. Vax Ltd, 28 March 2012
Complaint/Decision
This adjudication concerned a television advert for the Vax Air
Cylinder multicyclonic vacuum. The voice-over stated "Just
because you're a small one, it doesn't stop you doing what
the big ones do. This is the remarkable Vax air cylinder. It's
light, compact, with outstanding suction power and 60% more
capacity than the average multicyclonic cylinder." On-screen
text stated "Average across top 10 selling multicyclonic
cylinder vacuums April '11. Vax.co.uk for details".
Dyson challenged whether the claim "outstanding suction
power" was misleading because the Vax product had only sixth
highest suction power out of the top ten selling multicyclonic
cylinder vacuums and they considered that consumers would
understand the word "outstanding" to mean that the Air
Cylinder had the best suction power compared to the top ten, or at
least came very near the top of the top ten.
However, the ASA disagreed and concluded that this was not an
absolute claim. It considered that consumers would interpret the
claim in context with onscreen qualifying text, i.e. meaning that
the suction power was higher than the average suction of the top
ten products. As evidence was provided to show that this was the
case, the claim was held not to be misleading.
In contrast, in Colourful Coffins Ltd, the use of
the absolute claim '100% recycled cardboard' was
challenged. Although the ASA did not agree with the basis of the
complainant's challenge (the ASA thought that the average
consumer would not take bonding agents and glue into their
consideration of the claim), it considered the claim misleading
because the outer edges of the cardboard were made of non-recycled
paper. In coming to this conclusion, the ASA considered what an
average consumer would take into account in their understanding of
the claim.
These adjudications give an indication of how the ASA distinguish
between "absolute" claims and those which fall short of
this. Before making any "absolute" claim, advertisers
should take care to ensure that it can be substantiated. Terms and
conditions must clarify, rather than contradict the claim.
14. Ergoflex Ltd, 21 March 2012
This adjudication concerned two websites for a mattress
retailer which set out various claims that the mattresses were
award-winning and that the mattresses had been 'seen in'
various media including Mail on Sunday, the Telegraph, The
Observer, the Daily Mail, House Beautiful, The Sunday Times, 4
Homes, and Channel 4 as well as 'on TV'.
Complaint/Decision
The complainant challenged whether the claims that the
mattresses had won awards were misleading and could be
substantiated; and whether the claim "As seen in"
misleadingly implied that the mattress had featured in editorials
or product reviews in those media. Both complaints were upheld. The
claim in relation to 'award-winning' was held to be
misleading because the ASA had seen no evidence that the products
had won any awards given by an independent organisation. The ASA
noted that positive product reviews did not constitute what
consumers would understand to be 'awards'.
In relation to the second complaint, although neither advert
actually stated that the mattresses had featured in editorials or
product reviews in the media listed, the ASA considered that
consumers would understand 'as seen in' to mean that the
media listed had taken editorial decisions to feature the
mattresses and that these therefore constituted independent
endorsements. Because, in relation to all but one of the
publications, the retailer had in fact paid for adverts for the
mattresses to appear, the claim was held to be misleading.
In relation to appearances on TV, the ASA noted that these
related to the programmes 'This Morning', 'Deal or No
Deal Christmas Stars' and 'Help! My house is falling
down' and that, noting correspondence provided, the claims were
based on the editorial decisions of the programme makers to include
Ergoflex products in those programmes. However, because the
mattresses were not specifically referenced during the programmes
and were not therefore readily identifiable as Ergoflex products,
the ASA concluded that the logos of Channel 4 and 4Homes in one
advert following the claim "As seen in", and the general
claim "as seen on TV" in the other advert, were
misleading.
This adjudication was further discussed in a CAP article, which noted that it had resulted
in the ASA raising the standard of substantiation for the use of
'as seen on TV' claims. Where previously the ASA had
rejected a complaint about an advert for a product described as
having been "... seen on TV". because the provision by
the advertiser of invoices for advertising space bought on various
channels, lead the ASA to consider that the claim was unlikely to
mislead, the Ergoflex adjudication means that marketers can no
longer base the claim on paid-for advertising alone, or the use of
a product as an unbranded and unidentified prop in a TV programme.
The CAP advised that marketers wanting to make similar claims in
relation to coverage of their products should use the wording
'as advertised in ...' or similar.
15. DFS Trading Ltd, 28 March 2012
This adjudication concerned a TV advert which stated: "... so
right now, there's at least £400 off every sofa in the
entirely new Style Collection. There's interest free credit and
everything is payment free until next Easter ...." On screen
text stated "4 years free credit on everything".
Complaint/Decision
One complainant challenged whether the advert was
misleading because it failed to state that obtaining credit was
subject to status and terms and conditions. The complaint was not
upheld.
The ASA noted Clearcast's view on the challenge, that it
related to compliance with the Consumer Credit (Advertisement)
Regulations 2010. DFS also provided a letter of assurance from
their legal adviser confirming to them that the advert was
compliant with these regulations. The ASA also took advice from the
OFT, which informed them that there was no legal requirement for
credit advertising to include the statement 'subject to
status'. The ASA considered that viewers would recognise and
understand that the advert was for credit and that they would be
subject to a credit check if they applied. It therefore considered
that the advert was not misleading.
This is a good example of the ASA taking into consideration the
average consumer's understanding of a particular industry and
its requirements. Although it considered that the status check
requirements for credit applications were generally known,
qualifications and requirements for other offers in other industry
areas may need to feature more prominently. This will depend on the
circumstances.
OTHER
16. Paramount Pictures UK, 14 March 2012
This adjudication concerned three ten second TV adverts for the
horror film Paranormal Activity 3. Each featured quickly changing
scenes shot in the style of video-camera footage.
One advert showed two young girls standing in front of a mirror
with a video camera set up behind them. One of the girls said
"Remember the rules?" and turned off the light. The red
recording light of the video-camera was shown on screen, while the
girls chanted "Bloody Mary, Bloody Mary, Bloody Mary".
One of the girls shone a torch under her chin and screamed. The
other girl screamed as well and said "Katie, it's not
funny!" before they left the room. The light from the hall
revealed a silhouette of a figure standing in the room. The other
two adverts featured different scenes in a similar style.
Complaint/Decision
Twenty-nine viewers challenged whether the adverts were likely to
cause distress to children and adults, and fifteen challenged
whether the ads were suitable for broadcast before 9pm. Both
complaints were upheld.
Clearcast had approved all three adverts, with a post-7.30pm
timing restriction, on the basis that the brevity of the adverts
alleviated the potential for harm or offence. However, the ASA
considered that the general tone was still 'of fear and
threat', with people screaming in all three adverts. This sense
of threat was exacerbated by the scenes shown being based in a
recognisable domestic setting with ordinary people.
The ASA held that a post-7.30pm timing restriction was
insufficient. The overall atmosphere of fear and menace was likely
to be upsetting to older children as well, so a post-9pm
restriction should have been instated. In relation to the potential
to disturb adult viewers, the ASA considered that the adverts did
not go beyond what would generally be expected from promotion of a
15-certificate horror films and so a post-9pm restriction would
suffice.
The issues of distress and suitability for viewing by children
were also raised in an adjudication this month concerning an NSPCC
direct mailing advert in the form of a DVD case which featured the
text: "Kerry's father asked her to do the unthinkable. And
then he filmed it". The reverse of the box included the name
and address of the recipient and the NSPCC details. The leaflet,
inside the DVD case, including further information about Childline
and a donation form, stated: "The footage of Kerry is now with
the police. As is her father. Because she was able to talk to
childline".
The complainants challenged whether the text on the cover was
disturbing and would cause distress and whether it was
inappropriate to be seen by children. Neither complaint was upheld.
The ASA noted that the subject of child abuse would inherently
cause discomfort, but that this was counterbalanced by the
worthwhile purpose of raising awareness of it. The ASA considered
that the NSPCC had taken steps to target the mailing to over 18s
and that it was unlikely that children would understand the
references made to child abuse. The advert was not irresponsible
and did not breach the Code.
These two decisions show the types of issues that the ASA will
consider as causing distress to children and those that will not.
Clearly the visual imagery in the Paramount adverts was considered
to be more explicit and more likely to be understood by children.
The ASA often allows more leeway to charity advertisers, provided
the charity takes reasonable steps in relation to the targeting of
adverts.
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 30/04/2012.
