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

This month, the ASA particularly considered comparative claims with identified competitors and health and beauty claims.

To view the article in full, please see below:


Full Article

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

This month, the ASA particularly considered comparative claims with identified competitors and health and beauty claims.

FOOD AND DRINK

1. Britvic Soft Drinks Ltd t/a Robinsons, 5 August 2009 (recommended fluid intake and substantiation)

2. Kellogg Marketing and Sales Company (UK) Ltd, 19 August 2009 (fair depiction of product)

3. Coca-Cola Great Britain t/a Oasis, 26 August 2009 (use of humour and surreal images)

4. Unilever UK Ltd, 26 August 2009 (health claims and visual context)

HEALTH AND BEAUTY

5. Holland & Barrett Retail Ltd, 5 August 2009 (comparisons between non-identical products)

6. Beiersdorf UK Ltd, 26 August 2006 (long-lasting effects of cosmetic products and use of statistics)

7. R Robson Ltd, 26 August 2009 (substantiation and wrinkle claims)

ALCOHOL

8. Alcohol in an Emergency Ltd, 5 August 2009 (irresponsiblity)

MEDIA AND TELECOMMUNICATIONS

9. British Sky Broadcasting Ltd t/a Sky, 12 August 2009 (availability of products)

10. Express Newspapers, 12 August 2009 (advertorials)

11. Virgin Media Ltd, 26 August 2009 (comparison with identified competitors and footnotes)

OTHER

12. Experian Ltd t/a CreditExpert, 5 August 2009 (30 day "free" trial, consumer obligations unclear)

13. Toys 'R' Us Ltd, 26 August 2009 (No.1 claim)

FOOD AND DRINK

1. Britvic Soft Drinks Ltd t/a Robinsons, 5 August 2009

A magazine ad for Robinsons Fruit Shoots drink stated, "Kids need plenty of fluids to help them maintain their mental and physical stamina. In fact, they should drink six to eight 250ml glasses a day".

Complaint/decision

The complainant challenged whether the claim "they should drink six to eight 250ml glasses a day" was misleading and could be substantiated, because she understood that the total recommended fluid intake for children included fluid absorption from food as well as from drink.

The ASA accepted the advertiser's evidence that several studies had made a range of recommendations about children's recommended fluid intake and that, for some genders and age groups, the recommendations fell within the range stated in the ad. However, the ASA considered the ad implied that it was a generally accepted recommendation that all children, of all age groups and genders, should intake six to eight 250ml glasses a day solely from drinks. Since Britvic had failed to provide evidence to support this implied claim, the ASA concluded that the ad was misleading.

This decision is a reminder that advertisers should always consider the possibility of implied claims and to take care to quantify claims if they are to avoid going beyond the scope of the substantiation available.

2. Kellogg Marketing and Sales Company (UK) Ltd, 19 August 2009

A TV ad for Kellogg's Crunchy Nut Clusters showed people eating the product in a variety of situations. For example, nut clusters were arranged in kebab form on a barbecue, braised with milk, a couple ate nut clusters out of a bowl as though they were popcorn and a woman was lying on her bed with what looked like a box of chocolates, but which were in fact nut clusters.

Complaint/decision

Two complainants objected that the ad was misleading for exaggerating the size of the nut clusters.

The ASA obtained a sample of the product to examine whether the ad was misleading. It agreed with Kellogg's that the clusters varied in size. The ASA considered that customers would understand that not all clusters would arrive in the cereal packet intact. They would not expect all the clusters to be of uniform size and shape, but would expect the clusters depicted in the ad to resemble the actual product in size. Because the size of the fully formed clusters in the cereal packet examined was similar to those shown in the ad, the ASA concluded that the ad did not overly exaggerate the size of the clusters and was therefore unlikely to mislead.

Challenges regarding the depiction of a product are relatively common. However, this adjudication demonstrates the ASA taking a pragmatic approach to what may be regarded as a somewhat frivolous challenge.

3. Coca-Cola Great Britain t/a Oasis, 26 August 2009

A TV ad for a soft drink showed a young woman tipping a bottle of drink into her friend's mouth. Two teachers came to their door and said, "Miss Ito, we only drink water here!" One student replied, "But we love the taste of Oasis." The teacher picked up a comic with a giant rubber duck on the front cover and ripped it in half. A giant yellow rubber duck was seen through the window and the students exclaimed "Rubberduckzilla!" Mayhem broke out in the city as people sang, "Oasis, for people who don't like water." A poster ad used the same tag line and similar imagery.

In a total of six complaints, five viewers challenged whether the ads were harmful and would encourage young people to drink the product rather than water, which they felt was detrimental to health.

Complaint/decision

The ASA noted that the young women in the first ad were in a fantastical environment in which the characters were only allowed water. The ASA considered that both ads were intended to be humorous and removed from reality and so, in that context, the ads were unlikely to encourage young people to drink Oasis rather than water. The ASA concluded that the ads were not harmful.

This adjudication demonstrates that the use of humour and surreal images can in certain circumstances permit advertising messages which might otherwise be deemed inappropriate or even harmful.

4. Unilever UK Ltd, 26 August 2009

A TV ad for Flora, Flora pro-Activ, Bertolli and I Can't Believe Its Not Butter, stated in a voiceover, "So, have you heard the big fat truth? Not all fats are bad. The truth is, some fats are not only good, they're essential. They're called essential fats because we need them to grow, renew, be healthy today and tomorrow and one of the best sources is spreads like these because they are made from seed or vegetable oils for the essential fats in your daily diet. And that my friend is the big fat truth." On-screen text stated, "Specifically include Flora pro-Activ, Bertolli or I can't Believe Its Not Butter as part of a healthy diet and lifestyle".

The ad showed a spread on different types of bread and melting into into peas, sweetcorn, asparagus and baked potato. On each occasion the spread formed the words "FAT", "BAD", "TRUTH", "essential", "need", "healthy" and "daily".

Complaint/decision

The ad was challenged on the grounds of exaggerating the health benefits associated with polyunsaturated fat spreads and also encouraging the consumption of unhealthy levels of the spreads.

The ASA noted that the Food Standards Agency had advised that saturated fats should be substituted for polyunsaturated fats and monounsaturated fats. The ASA considered that these preferred fats are contained in all of the advertised spreads. Whilst the ASA appreciated that these fats could be harmful when consumed in excess, the ASA also noted that the ad only referred to the intake of the products as part of a healthy, balanced diet and lifestyle and any encouragement to consume 'good' fats was made in that context only.

The ASA noted that the phrase "healthy" appeared during images of the spread being applied to a baked potato. However, the ASA also considered that this image appeared within the context of a balanced, healthy lifestyle. In addition, on-screen text stated that the spreads should be used as part of a healthy diet. Therefore the ASA concluded that viewers would appreciate the overall context of the ad and would not interpret it to mean that the fats are a healthy product when eaten in isolation. The complaints were accordingly not upheld. The ASA considered that the ad was more likely to encourage viewers to use these spreads as a substitute for other saturated fats.

This adjudication reminds advertisers of the need to place any scientific or health claims within an appropriate context and that visual images are often crucial in achieving this.

HEALTH AND BEAUTY

5. Holland & Barrett Retail Ltd, 5 August 2009

A TV ad for Holland & Barrett compared 120 1000mg glucosamine sulphate tablets when purchased at Superdrug and at Holland & Barrett, showing a silhouette of a pill bottle.

Complaint/decision

Superdrug's main complaint was that the price comparison was misleading and unfair, because it was based on Superdrug's 30-tablet pack and Holland & Barrett's 120-tablet pack.

The ASA upheld the challenge. Holland & Barrett stated it had compared its 120-tablet pack with four of the smaller pack sizes sold by Superdrug, because that was the only glucosamine sulphate product sold by Superdrug. However, the ASA considered that the image of the single bottle of pills shown throughout the ad and the reference to a 120-tablet pack suggested that a single bottle of 120 tablets was available at both retailers. The ASA considered that viewers might expect a smaller pack of tablets to cost more per tablet than when those same tablets were sold in bulk. It therefore considered that the omission of information as to the basis of the comparison, combined with the visual image of the single bottle, meant that the ad might mislead viewers.

This adjudication demonstrates that where significant, the ASA will insist on the basis of any comparisons being clearly set out in the ad. In this instance, the visual image contributed to a misleading impression.

6. Beiersdorf UK Ltd, 26 August 2006

A magazine ad for Nivea DNAge Cell Renewal Day Cream featured the text "FACE THE FUTURE WITH FIRMER SKIN. NIVEA VISAGE DNAGE CELL RENEWAL.....An innovation in skincare, which boosts surface skin cell renewal leaving you with noticeably firmer looking skin.*" The asterisk was linked to a footnote, which stated "*126 women agreed".

Complaint/decision

One complainant challenged whether:

(i) the claim "FACE THE FUTURE WITH FIRMER SKIN" was misleading, because it failed to make clear that the cream might only have a temporary, visible effect on the skin,

(ii) the product name misleadingly implied that the product could in some way regenerate cells, and

(iii) the claim "126 women agreed" was misleading because it failed to make clear the sample size on which the study was based.

The ASA upheld the first complaint. The ASA noted that the ad did not refer to the "appearance" of the skin after use, but rather claimed, "FIRMER SKIN." The ASA considered that consumers were likely to infer that the product had more than a temporary, visible effect on the skin and that some may infer that it had a permanent effect. This headline claim was therefore considered by the ASA to be misleading. Advertisers within the health and beauty industry will know to be particularly wary of implying that any cosmetic products may have permanent or long-lasting effects, unless there is sufficiently robust supporting evidence.

However, the ASA concluded that the product name was unlikely to mislead. The context of the ad made it clear that the product had an exfoliating effect on the skin and did not actually regenerate cells. The ASA reminded advertisers that claims in product names can be acceptable, provided they are appropriately qualified.

The ASA agreed with the complainant that Beiersdorf had failed accurately to state the sample size upon which their study was based could mislead. The ASA noted that, despite the statement included in the footnote, 126 woman had not actually agreed. In fact, 126 women was the number of women who had tested the product and 70% of those women had agreed. This part of the complaint highlights the importance of ensuring the accuracy of any statistics or footnotes, as the ASA are likely to take a tough stance if these are incorrect.

7. R Robson Ltd, 26 August 2009

A leaflet for a skin cream and an eye cream stated, "Age Logic Cellulaire reverses the cellular aging process. For the first time ever, in addition to nutritional elements essential to cellular life, vital cellular energy is supplied by ATP – the body's most energy rich molecule – combined with ACTINERGIE....Age Logic Yeux diminishes wrinkles and crows feet, tones and lifts the eyelids."

Complaint/decision

One complainant challenged whether the claim "reverses the cellular aging process, revives skin cells that have become inactive over time" was misleading and could be substantiated. The ASA also questioned whether the claim "diminishes wrinkles and crows feet" was misleading. The ASA considered that both of these claims suggested a more permanent effect than merely the temporary reduction of fine lines and wrinkles.

R Robson Ltd provided a patent application to show the effect on cellular renewal by combining ATP with an un-named product. Details of the scientific trials conducted were also submitted.

As is common with cosmetics efficacy adjudications, the ASA took expert advice. They understood from that advice that none of R Robson's supporting evidence seemed to adequately assess cellular ageing. In particular, there were several problems with the methodology behind the trials including insufficient information as to the health and elasticity of the samples prior to testing. In addition, there was no placebo and the study was not double blinded. Following the expert's findings, the ASA concluded that the evidence submitted by R Robson was not sufficiently robust to support the strong claims and therefore the ad was misleading. As with the previous adjudications, advertisements for cosmetic products which make "breakthrough" type claims require evidence of the highest standard in support of these claims.

ALCOHOL

8. Alcohol in an Emergency Ltd, 5 August 2009

A circular for an alcohol delivery service stated, "A&E Southampton's premier drink delivery service. Your quick link to drink".

Complaint/decision

The complainant challenged whether the play on words "A&E" was offensive given the number of alcohol-related casualties in the UK. He also complained that the ad encouraged an irresponsible attitude to drinking alcohol by portraying it as indispensable.

The ASA upheld both challenges. It considered that the advertiser was comparing the need for alcohol with the requirement for urgent medical attention. The claim "Your quick link to drink" also suggested excessive consumption of alcohol within a short period of time. Due to the ad's implication that alcohol was indispensable, the ASA considered that the ad was encouraging reckless consumption. It therefore concluded that the ad was offensive and socially irresponsible.

This adjudication reminds alcohol advertisers that the ASA will always take a strict approach in interpreting the rules on alcohol, even if the intention is to be humorous.

MEDIA AND TELECOMMUNICATIONS

9. British Sky Broadcasting Ltd t/a Sky, 12 August 2009

A TV ad and a poster for Sky advertising the Sky+ HD Box stated, "Now only £49" and "Free standard installation for new customers".

Complaint/decision

12 complainants challenged these claims as misleading. Two of the issues were:

(i) that there were many qualifications associated with taking advantage of the offer which were not communicated, and

(ii) the availability of the offer.

The ASA upheld the first challenge. The ASA noted that the standard installation was only free to new customers or existing customers who also took out a Sky Multiroom subscription. Text in the TV ad stated, "First Sky+ HD Box £49.00 when you join Sky TV" and "Free standard installation when you join Sky TV". However, the ASA considered that this was insufficient to warn viewers that the offer of free standard installation was available to new customers only.

The ASA accepted Sky's explanation that the issues of availability were due to high demand. The ASA considered that Sky had taken sufficient steps to mitigate customers' disappointment. It had updated them of the situation and released them from the obligation to complete their order. Given the relatively small number of complaints received by the ASA, it considered that there was no widespread problem with availability. The ads were therefore held on these points not to be misleading.

This adjudication serves as a reminder to advertisers that eligibility qualifications must be clearly stated. Advertisers must also be able to demonstrate that they have taken a range of measures to mitigate customer disappointment should issues of availability arise.

10. Express Newspapers, 12 August 2009

This month, the ASA upheld challenges made against four ads published in the Daily Express. The ASA Monitoring team identified that the newspaper regularly published full page features for various products. The top half of each page was presented as an article on the product. The bottom half of the page featured an ad for the same product. Text at the top of the entire page stated, "To advertise in this section call 0871 XXX XXX or email". Each ad contained efficacy claims for the product. The products advertised included LIPOBIND for weight loss, Copper Heelers for arthritis, LadyCare for menopause relief and ROZIP for joint pain.

Complaint/decision

Monitoring staff from the ASA in each case challenged whether the top half feature section of the pages was controlled by the advertiser rather than the publisher and, if so, why this had not been made clear, for example, by inclusion of the term "advertorial". In each case, they also challenged whether there was evidence substantiating the efficacy claims of the products.

The advertiser and newspaper stated that the article was genuine editorial, for which no payment was received by the newspaper and which was not subject to any change by the advertiser.

The ASA upheld both challenges. The ASA noted that the articles were always and uniquely favourable to the product featured in the ad below. The ASA considered that the pieces would not have appeared in the same form in the same publication on different dates, had they been genuine editorial pieces. The information in the articles expanded on the information provided in the ads below. Since the articles contained claims that would have been prohibited in advertisements, the ASA considered that the advertisers were intentionally attempting to circumvent the CAP Code. The ASA concluded that there was probably a commercial arrangement in place between the publisher and the advertiser, and that the advertiser exerted a sufficient degree of control over the content of the articles to warrant the term "advertisement feature" appearing above the articles.

In each case, the ASA considered that it had not received evidence to substantiate the claims made in the articles. The challenges were upheld and the ads were considered misleading.

This adjudication demonstrates that the ASA will look to the substance of such features that purport to fall outside the scope of the CAP Code. Advertisers and publishers must distinguish their ads clearly from editorial features.

11. Virgin Media Ltd, 26 August 2009

A national press ad, for Virgin Media Broadband, was headed "PRESENTING THE MOTHER OF ALL BROADBAND". Below it stated "IT'S FAST. IT'S FUTURE PROOF. IT'S TIME TO SWITCH TO FIBRE OPTIC BROADBAND. There are two main types of broadband. One uses copper wire. One uses fibre optic. One was invented for phone calls. One was designed with the internet in mind. One is struggling to keep up with the growth of the web. One is not. One slows down the further you live from the phone exchange. One does not. One is used by BT, Talk Talk, Tiscali, Orange, Sky and others. One is used by Virgin Media. Which one have you got? There is only one fibre optic network widely available in the UK. It brings you the Mother of all Broadband. Only from Virgin Media". Small print stated, "Fibre optic technology is "the Mother of all Broadband" due to factors such as its low signal attenuation, low signal interference and high data-carrying capacity".

Complaint/decision

British Sky Broadcasting (Sky) challenged whether the claim, "THE MOTHER OF ALL BROADBAND" was misleading because it was based on low signal attenuation, low interference and high capacity, which Sky believed were insufficient indicators on which to base a claim that Virgin broadband was superior in every material way. However, the ASA considered that the small print in the ad sufficiently qualified the meaning of the claim. Virgin had made the basis of their claim clear and had shown the inherent advantages of fibre optic based networks. Therefore the ASA concluded that the ad was unlikely to mislead consumers.

Sky also challenged whether Virgin Media's claim, "IT'S FUTUREPROOF" was misleading, because Sky understood that Virgin Media was no better equipped to deal with the next generation Internet requirements than other ISP providers. The ASA considered that this claim appeared in the context of an ad that highlighted the differences between Virgin's fibre optic based broadband and ADSL services. The ASA believed that readers were likely to infer that Virgin's network was based on a more advanced technology than ADSL and that this technology had the potential to meet the challenges of developing faster broadband services. The ASA noted limitations inherent to ADSL broadband and acknowledged that it was generally accepted that next generation networks would be provided by fibre optic technology. The ASA therefore concluded that the ad was unlikely to mislead.

Finally, Sky challenged Virgin Media's claim that fibre optic cabling was "designed with the internet in mind" because cable technology predated the Internet. However, the ASA noted that fibre optic communications technology was developed as a means of transferring data over long distances at high bandwidths. This type of data transfer is essentially what the Internet entailed. Further, the ASA considered that readers were likely to infer from the claim that fibre optic technology was well suited to carrying Internet data and they were unlikely to interpret the claim literally and so the this claim was not upheld.

This adjudication, in the ongoing broadband battle involving Virgin Media's claim, demonstrates that advertisers can make strong comparative headline claims provided that they are clearly qualified in the small print.

OTHER

12. Experian Ltd t/a CreditExpert, 5 August 2009

A TV ad for CreditExpert offered a "30 day free trial".

Complaint/decision

Three viewers challenged whether the claim that the trial was free was misleading because, although customers were required to register with the trial online with their credit card details, they were required to contact CreditExpert by telephone before the end of the trial to avoid being charged for subsequent months.

The ASA upheld the challenge. Although customers were not charged for the period of the trial itself, the ASA considered that the need to take action to avoid being charged after the trial period was likely to be an important factor in customers' decision to take up the offer. The BCAP code requires that "Advertising must make clear the extent of the consumer's liability for any costs" and that all significant limitations and qualifications are made clear. Since the ad did not highlight this requirement, the ASA concluded that it was misleading.

This adjudication demonstrates that the ASA will interpret the BCAP Code's requirements regarding clearly expressing costs strictly. It is a widespread commercial practice to require consumers to take action to avoid being charged after expiration of a free trial period and so advertisers should ensure that such requirements are stated expressly in the ads.

13. Jet2.com Ltd, 19 August 2009

The national press ad for Jet2 stated, "Mega flight sale. Over 10,000 seats at least! ... From £2.99 one way inc. taxes".

Complaint/decision

The complainant challenged the availability of flights at £2.99.

The ASA upheld the challenge. It considered that not every single seat was required to be reduced in Jet2's flight sale. The ASA considered that a reasonable proportion of the "over 10,000" seats were available for £2.99 as Jet2.com had provided evidence that 14% of the reduced seats were available at that price. However, the ASA considered that this fare should also have been available on all or most destinations. As only 12 out of 45 destinations were offering £2.99 seats, the ad was held likely to mislead.

This adjudication appears to be particularly harsh given that the ad made no claims as to the availability of the £2.99 fare across Jet2's range of destinations. However, the claim may have been acceptable had it included some qualifying text with small print, for example, "limited geographic locations". This emphasises the risk of implied claims and how a relatively minor change to the ad might have avoided an adverse adjudication.

14. Toys 'R' Us Ltd, 26 August 2009

A national press ad for a toy retailer featured a number of "HALF-PRICE" children's bikes. A sub-heading stated, "THE WORLD's NO.1 BIKE RETAILER" and text below stated "SAFETY – ALL OF OUR BIKES COMPLY WITH THE TOUGHEST BRITISH AND EUROPEAN CYCLE SAFETY STANDARDS."

Complaint/decision

Halfords challenged whether Toys 'R' Us could substantiate their claim that they are the "No.1 bike retailer". Further, Halfords believed that some bikes only complied with British standards, which were not as strict as the European EN standard.

The ASA considered that consumers were likely to interpret the claim "THE WORLD's NO.1 BIKE RETAILER" to mean that Toys 'R' Us was the best-selling bike retailer worldwide. Whilst the ASA appreciated that Toys 'R' Us had stores in 33 countries, they had not provided comparative sales data for the bike market. The ASA had not been able to verify whether the claim was accurate or not and therefore concluded that it was misleading.

However, the ASA held that the reference to safety standards was not misleading. The ASA noted that Toys 'R' Us had a number of measures in place to ensure the safety of the bikes and that the company was moving towards European standards. The ASA also considered that most consumers would not necessarily interpret the claim to mean that they complied with both the British and European standards, but that consumers would expect the bikes to have been tested to an appropriate level, whether British or European.

This adjudication reminds advertisers that comparative ads, particularly unqualified "No.1" claims, will always require robust substantiation.

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 30/09/2009.