HEALTH AND BEAUTY
1. Pro Bono Bio Entrepreneur Ltd, 22 April 2015
A TV ad promoted a topically applied gel used to relieve joint pain, stating it was “Drug Free” and “doesn’t contain any drugs”.
The complainant, a GP, understood that the product worked due to a method of absorption through the skin that required the gel to include a drug. The ASA did not uphold the GP’s complaint.
The advertiser explained that the product had been classified as an EU Class IIa medical device by a notified body based in Luxembourg, and that this classification was confirmed by the Medicines and Healthcare Products Regulatory Agency (MHRA). It further provided clinical trial data published in peer-reviewed medical journals demonstrating that the gel did not use pharmacological activity, but rather relied on the nano-scale physical configuration of the components of the gel to provide the desired effects.
Clearcast also responded to say that it had worked closely with the advertising agency prior to approving the ad and felt that the lack of active ingredients having a pharmacological effect meant the gel could be claimed to be drug free.
The ASA considered the public would interpret the claims to mean that the product did not contain pharmaceutical drugs or medicines. As the product had been registered as a medical device, and therefore would not cause a physiological change through pharmacological, immunological or metabolic means, the ASA concluded that the claims were not misleading and did not breach the Code.
ASA adjudications relating to medical devices are somewhat rare. Although the MHRA regulates the advertising of medicines, medical devices are not covered by the same regime. The Association of British Healthcare Industries has introduced its own guidelines which regulate the advertising of medical devices and related services, but only where directed primarily at healthcare professionals. Advertisements directed wholly or mainly to consumers, patients or other non-healthcare professionals remain subject to regulation by the ASA.
2. Boots Professional Services Ltd t/a Boots Opticians Ltd, 15 April 2015
A TV ad for Boots Opticians featured people discussing their glasses and stating “for me it’s the anti-glare; they put anti-glare in there, and for me that makes a really big difference”.
The complainant, a registered optician, challenged whether the claim “anti-glare” was misleading as they understood the term as describing lenses that would reduce the brightness of a light source through a tint, which the glasses did not do. The ASA did not uphold the complaint.
Boots Opticians responded that the claim related to its standard lens offer that includes a reflection-free finish. This coating worked to reduce the amount of light hitting the back of the lens and ‘bouncing’ into the eye, resulting in visual comfort. The advertiser provided a leaflet summarising research conducted by the manufacturer of the lenses demonstrating that the glasses reduced exposure to glare. Boots Opticians also provided transcripts of the relevant customer interviews including claims using the term “anti-glare”.
The ASA felt that the average consumer would understand the claim to mean that the glasses reduced the effect of “glare” and would not have the specialised knowledge to understand the terminology “anti-glare” to mean a tint was used to do so. Because the glasses did reduce this effect, the ASA did not feel the ad was likely to mislead consumers.
This result illustrates that the ASA will only consider the average consumers’ understanding of claims, not that of a consumer having exceptional knowledge of the products being advertised. In this case, the use of testimonials and the consumers’ own words in describing the lenses are likely to have played a part in the ASA’s decision, as it was clear consumers would use the term to describe the actual effect of the glasses.
3. Virgin Media Ltd, 1 April 2015
Claims on Virgin Media’s own website stated that various tariffs in a section headed “VIP Plus Tariff” included reference to “Unlimited data”. Small text at the bottom of each page stated "... You should expect speeds delivered up to 384kbps (3G), actual speeds experienced may be higher or lower and will vary by device and location ...”
Seven complainants understood that a data cap applied to the “unlimited” data tariffs and challenged if the claims were therefore misleading. CAP guidance makes clear that unlimited claims will be acceptable if limitations affecting speed or usage are only moderate and are clearly explained. The ASA considered that this was not the case and upheld the complaints.
Virgin Media responded that the tariffs allowed customers to access the internet without a speed restriction for an initial 3.5 GB of data usage a month, after which they would be restricted to a speed of 384 kbit/s. It felt that this restriction was moderate, particularly as the understood definition for 3G is 200 kbit/s and the customer would not incur any additional charges. Further, the advertiser explained that customers were never prevented from accessing the internet, regardless of the amount of data used, and therefore access was unlimited.
It further stated that only 2% of customers ever reached the 3.5 GB limit in a 30-day period, which it considered was a small minority. Virgin Media felt that those customers who exceeded the limit would also be more aware of the advertised expected speed and that therefore the average consumer would not have been misled.
To determine the normal connection speed, the ASA looked to recent Ofcom research on mobile broadband speeds, published November 2014, which indicated that on average 3G speed was 6.1 Mbit/s, and that this did not vary significantly between providers. Therefore, the drop in speed from an average of approximately 6 Mbit/s to 384 kbit/s was more than a moderate reduction. As a result, applying the CAP guidance, Virgin Media’s claims were misleading and in breach of the Code.
“Unlimited” claims can be contentious as consumers expect truly unlimited service and competitors may challenge the broad nature of the claims. Such claims are frequently the subject of complaints to the ASA. In this case, the ASA showed that it will consider the industry standard, as determined by another regulator, in order to find whether limitations to such claims are moderate or not, thereby ensuring that the contextual circumstances of the claim are considered when concluding whether a claim is misleading.
4. Sky UK Ltd t/a Sky, 1 April 2015
Sky’s website included claims stating its Broadband services had "99.9% SKY NETWORK RELIABILITY*". Smaller text below explained "*Sky's network delivers 99.9% average uptime to your local exchange. Sky's network is part of your overall connection and other factors affect your overall reliability (e.g. home wiring, equipment & websites you visit). Sky Network areas only".
Virgin Media Ltd challenged whether the ad misleadingly implied that the reliability of a consumer's complete broadband service was 99.9%, as it understood that Sky's core network only handled a small proportion of the data flow required to download online content or access a web page. The ASA upheld the complaint.
Sky stated that while core networks only handled a small proportion of end-to-end delivery when measured by distance, their ability to carry all of the content requested by customers and to determine online performance by acting as a bottleneck makes them significant. Further, it argued that the consequence of failure of the core network (i.e. all customers’ connections to all websites would be affected) distinguished it from other elements in the overall network. Thus, Sky did not feel that the proportion of data flow delivered by the core network bared relevance to the claim.
The ASA noted Sky’s statements but considered that consumers would be more concerned with the reliability of the end-to-end broadband connection than that of certain portions of the overall connection. Further, notwithstanding the qualification text stating that "Sky's network is part of your overall connection", the ASA considered that consumers would not be aware of the distinction between their overall internet connection and an internet service provider's core network.
Sky also stated that the ad explained that other factors may affect the overall reliability. It considered that the smaller text made clear that the main claim was qualified, and that the qualification was visually and factually prominent. However, the ASA did not feel that the wording of the qualifying text adequately clarified the headline claim or explained that it did not apply to significant parts of the overall connection. It also felt that some consumers would not understand the language used, for example "average uptime to your local exchange".
Further, the examples that would affect overall connection reliability referred to at the end of the qualification included only in-home factors and did not account for other portions of the connection which Sky did not have control over and which would also affect reliability. The ASA considered that the qualification text was inadequate in explaining the limits to Sky’s control on reliability.
As a result, the ASA considered that the claim, its presentation and the qualification gave consumers the impression that it related to the complete broadband service, and it was therefore misleading. However, the ASA acknowledged Sky’s offer to amend the qualification.
This result echoes that of Virgin Media’s adjudication above. The ASA requires claims suggesting unlimited or nearly limitless services to be thoroughly substantiated and not misleading to consumers. Further, in both cases, text aimed at clarifying the headline claim served as a further source of misleadingness. Advertisers should be certain that any qualifications are complete, clear, concise and capable of being understood by consumers, and that they do not contradict the headline claim.
5. Hamptons Estates Ltd t/a Hamptons International, 22 April 2015
Claims on the advertiser’s website advertised a property with the text “£1,200 per Calendar Month + £216 incl VAT admin fee per property + other fees may apply” with a hyperlink to a PDF containing further details on related fees.
The complainant understood that it would not be possible to rent the property advertised without paying additional mandatory fees and questioned whether the information on these fees was sufficiently clear.
The ASA upheld the complaint, though the advertiser had responded to say that the administration fee was the only fixed charge. It stated that the PDF to which the claim was linked included the other mandatory fees that may apply and that would be likely to vary in amount, including a charge for obtaining references for the applicant and check-in fees.
The ASA, however, felt that consumers would interpret the claim to mean that the administration fee was the only non-optional fee the consumer would have to pay to rent the property, while the PDF demonstrated that this was not the case. Referencing and check-in charges would be required, though at different rates depending on the property. The ASA noted CAP Code rule 3.19 in particular which states that if a fee cannot be calculated in advance as it is dependent on the consumer’s circumstances, the ad must make it clear that this fee is excluded from the advertised price and state how it is calculated.
While the ASA acknowledged that the required details were linked to the claim, it considered that the additional non-optional fees were material information likely to impact the consumer’s decision to rent the property and were not sufficiently prominent in the ad. As a result, the ad misleadingly implied that other fees may not apply and was in breach of the Code.
Although this conclusion is unsurprising, it demonstrates the ASA’s approach where it considers that information likely to impact the consumer’s decision making process is not presented in a sufficiently understandable way to allow them to make an informed decision.
6. Peugeot Motor Company plc, 1 April 2015
A TV and cinema ad featured a Peugeot car parachuting from the sky, landing on a snowy mountain, being chased by a missile-firing fighter jet and helicopter, driving across a frozen lake and into a half pipe, and flipping over the top of the helicopter.
Complainants challenged whether the ad was irresponsible as it glamorised speeding and condoned dangerous and irresponsible driving. The ASA did not uphold the complaints.
Peugeot stated that the ad attempted to reincarnate a 1980s ad for a previous car and capture a James Bond-esque theme by depicting unbelievable feats of driving seen in films. The intention was therefore to entertain and excite, not to demonstrate real-life driving capabilities. It also explained that the ad did not take place on public roads, but instead in fantastical locations which were created by Computer Generated Imagery (CGI). Peugeot therefore felt that the ad was not condoning irresponsible driving, and Clearcast and the Cinema Advertising Association agreed, stating that the ad was shot in a cinematic style.
The ASA considered that the fantastical theme was demonstrated at the outset and throughout the ad. It also acknowledged the fact that no real driving took place in the ad, which had been produced using CGI. The actions were so far removed from reality that the ASA felt that viewers were unlikely to believe the ad was an actual representation of the car’s ability, and therefore it was unlike to condone or encourage unsafe or irresponsible driving. As a result, the ad was not in breach of the Code.
This result is consistent with the ASA’s approach toward cinematic or fantastical ads, particularly with regard to motoring ads. When viewed in conjunction with the ASA’s decision on an ad for Jaguar Land Rover Ltd, it is clear that the ASA will take a holistic approach to determine the underlying message of an ad.
7. West Quay Cars (Southampton) Ltd, 8 April 2015
A poster ad featuring a woman making a suggestive gesture included the text “If I start to look sexy book a taxi” and smaller text “Don’t make bad decisions because you have had one too many! Don’t drive under the influence, book a taxi with us”.
Complaints challenged whether the ad was offensive as it was sexist and portrayed the woman as unattractive due to her size. The ASA did not uphold the complaints.
The advertiser responded that it did not believe the ad to be sexist or discriminatory, and explained that it was one of three launched as part of a campaign. The others included a man in the place of the woman, and both the man and woman together.
West Quay Cars also stated that it had conducted a polling exercise prior to the launch of the campaign asking approximately 600 people for feedback on the ads. It reported that a very low percentage of the 600 had objected to the ad and the decision to proceed with the campaign was based on the view that the overarching message against driving under the influence was sufficiently important to outweigh the campaign’s potential controversy.
The ASA determined that though some audiences would find the implied message that the woman is unattractive distasteful, the overall emphasis of the image was on her unusual pose and styling rather than her weight. She was wearing clashing colours and large jewellery and accessories which the ASA considered the main reasons why the fictional woman would not be conventionally “sexy”. It also felt that the ad’s light-hearted approach would not be generally understood to objectify women. As a result, the ASA concluded that the ad was not likely to cause serious or widespread offence and therefore did not breach the Code.
Weight can be a particularly sensitive issue to navigate in advertisements, as can be seen with recent ads for Protein World on the London Underground questioning consumers’ ‘beach body’ readiness. Though humour is difficult to gauge in advertising, in this case the ASA understood the humorous intent and felt that the woman’s weight was not the central focus of the ad.
8. UK Insurance Ltd t/a Direct Line, 8 April 2015
A TV ad featured an actor stating “they’ll take the car in and fix it within seven days or someone will pay ... Direct Line will pay you £10 a day until the job is done”. On screen text explained “£10 payment starts on day 8 & is limited to £70. To meet our high quality & safety standards some repairs will take longer.” The final scene included text stating “CARS REPAIRED WITHIN 7 DAYS ... OR WE PAY YOU £10 A DAY UP TO A LIMIT OF £70”.
The complaints questioned if the actor’s claim was misleading as it was contradicted by the on screen text stating that the payments were limited to £70. The ASA did not uphold the complaint.
The advertiser explained that the vast majority of repairs were completed within the timeframe relevant to the payment cap. In addition, the on screen text did not contradict the actor’s claim, but further clarified the upper limit of the payments. The text was also larger and was more prominent than is normally required.
While the ASA felt that consumers would understand the actor’s claim to mean that the payments were not limited to any set period and would continue until the car was repaired, it considered that the text was sufficiently prominent to clarify the cap to the payment. Thus, when viewed as a whole, the ad was unlikely to mislead consumers and was therefore not in breach of the Code.
Considering the claim made by the actor, which the ASA acknowledged could be misleading, it is surprising that the ASA did not uphold the complaints. It appears that it took into account the likelihood of cars being repaired within the two-week period relevant to the claim, and therefore this decision is somewhat dependent on the facts, rather than the claims made.
9. Valve Corporation t/a Valve S.A.R.L., 15 April 2015
A claim on the advertiser’s own website promoted a game with the price reduction claim “-16%”, “£29.99” and “£25.19”.
The complainant challenged whether the reduction in price was misleading and could be substantiated. The ASA upheld this complaint.
The advertiser explained that it had marketed the game with a pre-purchase price of £29.99 on 20 August 2014. The game was later discounted during the advertiser’s autumn sale, commencing on 26 November. Valve Corporation stated that following this sale, the game returned to its regular price of £29.99.
The ASA concluded that, as it had not seen robust documentary evidence to show the game had been sold at the higher price of £29.99 from the pre-purchase period until the autumn sale, or that the price had immediately returned to this higher price following the promotion, the claim that the price reduction was available for a limited period of time was misleading and could not be substantiated. It therefore upheld the complaint.
As can be seen by last month’s adjudications for Halfords Ltd and BVG Airflo Group Ltd t/a Samuel Windsor, pricing is an area the ASA will consider carefully, and it will require robust documentary evidence from the advertiser to demonstrate any price reductions claimed. Advertisers should always take account of the BIS Pricing Guidelines when making any price claims.
What is particularly interesting about this adjudication is that the advertiser had mistakenly priced the product several times during the course of the promotion, requiring the price or the percentage of savings claimed to be amended. The ASA did not view this unfavourably when adjudicating, but instead focused on the dates of the promotion to determine the misleadingness of the claim.
10. Bedworld (North) Ltd, 8 April 2015
A TV ad included the phrases ‘ship this bed ... you can ship the bed right here at bedworld.net ... we’ve shipped this bed ... and it felt great.’
The complaints challenged firstly whether the ad was offensive as they questioned whether the word ‘ship’ was substituting a swear word, and secondly if the ad was inappropriately scheduled. The ASA did not uphold the first complaint but did uphold the second.
The advertiser responded that the voiceover described the nature of its online business and that it aimed to put across its excitement at being able to ship beds free of charge, which it felt was reinforced by the signs in and around the showroom stating ‘free shipping’. It also explained that it had reviewed the sound bites in the ad and were satisfied that the actors had clearly pronounced the word ‘ship’. Clearcast agreed and felt that the ad’s overall message made a time restriction unnecessary.
The ASA felt the word play had been used to draw attention to the offer of free shipping, which was evident from the signage in the ad. While the word ‘ship’ sounded similar to a swear word, it felt that in the context of the ad, viewers offended by bad language were likely to understand the pun and therefore understand what the actors were saying. As a result, the ad was unlikely to cause serious or widespread offence and was not in breach of the Code.
However, the ASA considered that young viewers were unlikely to register the distinction between the expletive and the word ‘ship’, and that they may already recognise the bad language and that it was unsuitable for them. As a result, the ASA considered that a scheduling restriction should have been applied and that the Code had been breached.
The ASA’s approach in this adjudication reflects its ruling in Booking.com BVf’s adjudication from 18 February 2015 where it also found that the replacement of an expletive with another word was not likely to cause widespread harm or offence. However, in this case, it felt that children were likely to understand the swear word already, whereas in Booking.com BVf’s ruling it did not. This difference clearly led to the ASA’s conclusion that a timing restriction should have been applied in this case.