FOOD AND DRINK
1. Life Health Foods UK Ltd t/a Up & Go, 2 September 2015
Ads for Up & Go drink included the following claim:
“AUSTRALIA’S NO.1 BREAKFAST”. In small print, “Source: IRI-Aztec, AU Grocery, Value Sales, 2014”.
Complaint / Decision
The complainants challenged whether the claim could be substantiated. The ASA did not uphold the complaint.
Life Health Foods provided the report by IRI-Aztec which showed the ranking of the top 10 breakfast products in Australia in 2014, up until June 2015, and a report demonstrating sales value and unit sales from an independent consumer insights company for the same period.
The ASA considered that the small print reference to “value sales” may have contradicted the likely impression of the claim, although they noted that, due to the size, it was unlikely that consumers would read it. The ASA also considered that the small print was likely to contradict the likely impression of the claim. However, as Life Health Foods had provided an additional report demonstrating unit sales, the ASA concluded that the claim had been substantiated.
This adjudication provides a useful reminder that the ASA will expect to see supporting evidence relevant to the specific claim being made - whether that claim is being made expressly or is implied. The ASA always takes a strict approach with regard to "No. 1", and generally treats these claims as being equivalent to a "best-selling" claim, unless the context of the ad clearly indicates another meaning. In this case, the ASA required proof that the product is actually the top selling product in Australia in terms of unit sales, as value sales was not considered sufficient.
What about products that are not top selling in terms of unit sales, but are for example the most discussed product in social media? The use of "No. 1" claims on such products may be defended but they would need to be formulated particularly carefully in order to not be misleading.
2. Weetabix Ltd, 30 September 2015
A TV ad for a breakfast product used the following claim:
“Weetabix On The Go. A proper breakfast. Bottled”.
Complaints / Decision
The complainant challenged whether the ad made a reference to the benefit of the product as being overall good health or health-related well-being. The ASA did not uphold the complaint.
Weetabix made representations to the ASA that the visuals in the ad, as well as the use of “proper”, demonstrated their product to be a convenient and alternative breakfast choice. Having received examples of general health claims from the Department of Health, such as “Good for you” and “Superfood”, Weetabix and Clearcast were of the opinion that the use of “proper breakfast”, along with the visual elements and context of the ad, demonstrated convenience rather than health.
The ASA considered the use of “a proper breakfast” and concluded that the product would be understood as a breakfast alternative. Confirming this view, they referred to a scene in the ad where after consuming the product, the young man pushed away a croissant. The ASA took the view that this was not rejecting the croissant as an unhealthy choice, just that the young man had already had his breakfast.
Although not an issue for the product in question, it should be noted that making a reference to a general benefit of a nutrient or food or for overall good health and well-being will need to be accompanied by an authorised health claim. This adjudication provides a useful comparison with the Forever Living Products and Jane Plan adjudications below as it demonstrates the importance of clarity when making claims with products related to foods. However, it does also show the fine line between a claim which will be regarded as a general health claim and one which falls on the other side of the line.
HEALTH AND BEAUTY
3. Forever Living Products (UK) Ltd, 2 September 2015
Website ads for Forever Living products included the following claim:
“This carefully created formula contains a special combination of vitamins … which contributes to the reduction of tiredness and fatigue. Perfect for anyone who is interested in metabolism”.
Complaint / Decision
Northamptonshire Trading Standards challenged whether the health claim for the food supplement was authorised under the EC Regulation of nutrition and health claims made on foods and secondly, whether the claims about the rate or amount of weight loss was in compliance with the Code. The ASA upheld the complaints.
Forever Living Products provided the authorised wording they had used to make their claims. They believed that the claim “contributes to the reduction of tiredness and fatigue” was exactly the same wording as that used for authorised claims in relation to the vitamins mentioned. They stated that they had then simplified statements "beneficial to human health" and being "a beneficial physiological effect" from the EFSA Opinions on vitamins to construe the claim “perfect for anyone who is interested in metabolism”, which they did not consider stated or implied any improvement to metabolism. Forever Living Products also mentioned that their product surpassed the minimum standard required when making a “source of …vitamin/s” nutrition claim, in that the food must contain at least 15% of the recommended daily allowance of each of the referenced vitamins. Their products contained over 90% of the relevant recommended daily allowance.
The ASA noted that advertisers are able to reword authorised claims as long as the reworded claim is likely to have the same meaning for consumers as the authorised health claim. They confirmed that the product did meet the conditions for a “source of …vitamin/s” nutritional claim. However, the health claims could not be used for a product itself but for the nutrient, food or substance it was authorised for. On this basis, the ASA considered that the impression given by the claim was that the “carefully created formula” rather than the individual vitamins provided the health benefit. The ASA also considered by adapting the two authorised health claims to create the single claim “perfect for anyone who is interested in metabolism”, which the ASA concluded was a general health claim, which needed to be accompanied by a specific relevant authorised health claim. As that claim was not accompanied by a relevant specified authorised health claim noted above, the ASA considered that the claim would be in breach of the Code.
Because the ad did not make clear the relationship between the food and the referenced health benefits, and because it made a general health claim which was not accompanied by a relevant authorised health claim, the ASA concluded it was in breach of the Code.
There was an additional complaint about the weight loss claim. Forever Living Products highlighted that the programme undertaken in the success stories was related to a weight loss programme with a focus on fitness and well-being rather than foods. The ASA finally concluded that the “69-day programme” in conjunction with the website page, had an emphasis on food supplements and meal replacement foods which would lead consumers to think the weight loss claims were food based rather than fitness based. The food supplements and meal replacement foods were presented as the key components such that consumers would be likely to link those weight loss claims to the food supplements and meal replacement foods; the ASA therefore concluded the ad was in breach of the Code.
This adjudication demonstrates some of the complexities when dealing with authorised claims from the EC Regulation on nutrition and health claims made on food. Although advertisers are able to adapt and reword authorised health claims, they should consider whether the effect of that adaptation would have the same effect as the authorised claim. They should also ensure it is made clear that the food and/or nutrients specified in the authorised claim, rather than the product itself, is the cause of the relevant benefit. A final comment would be to use caution when using images of foods or statements emphasising food products as this is likely to be viewed as linking your ad or claim in question to the use of such foods.
4. Mac Cosmetics Ltd, 23 September 2015
A billboard in a shopping mall and two posters on the London Underground displayed Miley Cyrus as part of Mac’s advertising campaign for “Mac VIVA Glam”. The billboard presented Miley Cyrus wearing a low cut bodysuit whilst lying on her back with her legs apart against a mirrored wall looking into a camera. The posters were similar except the larger poster showed a mirrored reflection of her crotch whilst the smaller poster only showed a partial reflection.
Complaint / Decision
The complainants challenged whether the ads were offensive as they were overtly sexual and as a result were unsuitable for display as posters in public areas as they were likely to be seen by children. The ASA did not uphold the complaint.
Mac noted that their spokespeople for their “VIVA Glam” campaign were iconic stars who were provocative and influential to various communities. They explained that Miley Cyrus was shown in a confident pose with the ads containing no nudity or any hint of sexual activity. They further noted that the ads did not draw attention to her crotch. Although they believed that the posters were suitable for display, they confirmed that all media owners had displayed the posters within 100m of a school.
The ASA considered the overall nature of the posters as sexually suggestive. They did note that the reflection of her crotch was not heavily emphasised and was distorted by the lighting and by Miley Cyrus’ pose. They also considered how none of the ads had been on display within 100m of a school. Interestingly, the ASA did not view the ads as overtly sexual nor likely to cause serious or widespread offence.
This adjudication demonstrates how advertisers are able to conduct appropriate measures to pre-empt possible breaches of the Code, although there is clearly a fine line between an image which is sexually suggestive and one which is overtly sexual.
5. Photo Therapeutics Ltd, 23 September 2015
A TV ad and regional press ad contained the following efficacy claims:
- “Now you can help relieve your pain with Kyrobak. The drug-free in-home treatment for back pain”;
- “…it takes just ten minutes of soothing treatment…Just 10 relaxing minutes a day…”; and
- “… recommended by doctors worldwide, that’s clinically proven to bring you …LASTING RELIEF from BACK PAIN…”.
The complainant challenged whether the ads were misleading and could be substantiated. The ASA upheld the complaint.
Photo Therapeutics Ltd provided details of two clinical trials comprised of 36 subjects and 16 subjects respectively. They also provided details of their patent applications for the product. Clearcast explained that their consultant was broadly in agreement with the ads and that Photo Therapeutics amended their script in accordance with their advice. Clearcast further explained that the product had not been presented as a medical treatment but instead was claiming to help relieve symptoms of lower back pain. Even though Clearcast did note that the supporting evidence could have been more robust, they considered it to be sufficient to support what they considered to be a low level claim.
The ASA, in consultation with the Medicines and Healthcare Products Regulatory Agency and an independent expert, considered that the ads contained treatment claims for a health condition which, as a result, made them medical claims for the product. They noted a few issues with the second clinical trial, including insufficient methodology, lack of a control group and a small sample size which was made even smaller as non-compliant participants were not included in the analysis of the results. Even though the first trial had more than the minimum number of participants required to have a statistically significant result, the ASA explained that in order to substantiate a medical claim, a robust body of evidence would be required. They also noted that as in the second trial, the analysis did not include data about the participants who had dropped out of the studies. Regardless of the issues with trials, the ASA explained that the supporting evidence did not substantiate the claim regarding 10 minutes of use.
It is important to consider carefully whether the claims being made about a product indicate that it is being sold as a medical product. Having reached a different conclusion from Clearcast, it is unsurprising that the ASA would require strong supporting evidence when assessing medical claims. Further, the use of clinical trials as supporting evidence should be robust enough to substantiate the claim. Advertisers should always ensure that at a minimum, simple factors such as using a large number of participants, and using all the data for the analysis can be shown. The ASA expects to view supporting evidence that is applicable to the specific claim about the product.
6. Paddy Power plc t/a Paddy Power, 9 September 2015
An ad in the sports section of the Guardian newspaper which featured odds on the candidates for the 2015 FIFA presidential election, had a headline stating, “JUST F**K OFF ALREADY”.
Complaint / Decision
The complainant challenged whether the ad was likely to cause serious or widespread offence. The ASA did not uphold the complaint.
Paddy Power explained that the Guardian newspaper was targeted at adult readers with the sports section often containing swear words. They noted that the headline, which was keeping in line with their brand’s distinctive voice, reflected the allegations of corruption surrounding Sepp Blatter and FIFA.
The ASA considered that the adult readership of the Guardian, and more specifically of the sports section, would understand the headline to be a light hearted comment on the controversy surrounding FIFA and Sepp Blatter’s tenure as FIFA president. They also noted that the sports section of the Guardian did often contain swear words. The ASA therefore concluded that the ad was unlikely to cause widespread harm and offence.
When considering issues of offensiveness, it is always particularly important to ensure ads are targeted and referenced appropriately to avoid being in breach of the Code.
7. Ever Adventure IOM Ltd, 30 September 2015
A website promoting an online casino contained cartoon-like images on the “Home” page, “Promotions” page and accompanying a number of games such as “Piggy Payout” and “Fluffy Flowers”.
Complaint / Decision
The ASA challenged whether the ad would appeal to children or young persons and was therefore irresponsible. The ASA upheld the complaint.
Ever Adventure explained that their target audience was female players over 30 years of age. Their social media advertising was age-gated and access to their website would be through either inputting the URL or being redirected from an ad external to the site. They noted that the characters in the ad, such as a meerkat and fairy, were of general appeal and not targeted to under 18s.
The ASA, citing the CAP Code on gambling, explained that ads must not be likely to be of particular appeal to children or young persons. By using cartoon-like imagery and games titled “Kitcats” and “Candilicious”, the overall theme of the website was child-like and likely to be of particular appeal to under-18s.
As is expected, the ASA has continued with its strict approach when assessing ads which could appeal to children.
8. Supercell Oy, 30 September 2015
An animated TV ad for an app game, “Boom Beach”, depicted cartoon characters in a fantastical setting. The ad depicted a gun boat firing at a sniper tower which blew up and contained statements such as “I stand corrected Johnson; it is super fun to blow something up that provides no strategic advantage”.
Complaint / Decision
The complainants challenged whether the ad glorified violence and was unsuitable for broadcast when children may be watching. The ASA did not uphold the complaint.
Supercell Oy explained the ad was for a strategy game targeted at males aged 18 to 49. In agreeing with Supercell Oy, Clearcast noted that there was no sense of realistic danger in the fantastical setting as none of the cartoon characters were shown to meet an unpleasant end. Due to the style of the game, Clearcast was happy to clear the ad for broadcast without any scheduling restriction. Supercell Oy did however aim for the ad to be aired with programming that was typical of their target market.
The ASA explained that the use of an animated ad removed any depiction of a realistic war. Considering that the ad did not show any injuries or casualties and could not be emulated by viewers, the ASA noted that it was unlikely that viewers would associate the ad with every day real life. In considering the scheduling of the ad, the ASA explained that the ad was unlikely to harm or cause distress to any children who saw it and noted that it was suitable for broadcast without a scheduling restriction.
In reaching this conclusion, the ASA has considered the overall context of the ad, including factors such as setting, characters and target audience.
9. Charles Tyrwhitt LLP, 2 September 2015
The company webpage promoted the price of a cotton shirt with text stating “£29.95 was £70.00 saving £40.05”.
Complaint / Decision
The complainants challenged whether the savings claim was misleading and could be substantiated. The ASA upheld the complaint.
Charles Tyrwhitt made the savings claim on the basis that they had previously advertised the cotton shirt at the £70.00 price from 1 December 2014 to 12 January 2015, a period of 6 weeks.
As with pricing claims, the ASA considered that the £70 price would be understood by consumers to mean the usual selling price of the shirt at the time the ad appeared. They would also expect the savings claim to be representative of a genuine saving. Charles Tyrwhitt had not provided any evidence to demonstrate the pricing history of the claim except for stating that the product had been at the £70 price for the dates mentioned above. This was 3 months prior to ad being seen by consumers. On this basis, the ASA considered that it was unlikely that the £70 price reflected the genuine selling price of the shirt at the time the ad appeared and therefore meant that the claim did not represent a genuine saving against the usual selling price.
It is unsurprising that the ASA upheld the complaint as there had not been any evidence documenting the pricing history of the product. Further there had been a 3 month period between the higher price and sale price. Advertisers always need to pay particular attention to pricing claims and to take note of the relevant BIS Pricing Guidelines. In particular, in this context, the advertiser needs to show that the higher price is a genuine usual selling price.
10. Harrods Ltd in association with The Conde Nast Publications Ltd, 2 September 2015
A competition run by Harrods in association with Vogue was administered by Harrods “General Competition Terms and Conditions” which stated that they would apply to competitions unless otherwise stated and the Harrods “My Green Man Competition”. They set out that only one entry per person was allowed and that “entrants must take a photograph … in a setting of their choice…” respectively.
Complaint / Decision
The complainants challenged whether the competition had been administered fairly as the winning entries had not complied with the terms and conditions. The ASA upheld the complaint.
Although Harrods had noted that their terms and conditions may have been perceived as confusing, they explained that the “My Green Man Competition” terms indicated that “General Competition Terms and Conditions” applied meaning the single entry condition would apply. Harrods announced two sets of winners, one which allowed multiple entries and the second which did not.
The ASA noted that consumers would understand that the single entry condition applied to the competition. However, as the original set of winners included a winner who had submitted multiple entries, the winner had not been selected in accordance with the terms and conditions. Although the ASA understood Harrods had not intended to limit the number of entries, failure to include the provision of multiple entries was likely to mislead entrants. In response to the term about “setting of their choice”, the ASA considered that in failing to define “setting”, relevant information had been omitted for the competition to be administered fairly.
The ASA’s decision to uphold the complaint is not surprising as terms and conditions should not be open for interpretation. They should clearly set out the terms on how participants can enter as well as other factors such as prizes and time periods.
11. JB Global Ltd t/a Oak Furniture Land, 9 September 2015
The company website contained the following claims:
- A banner which stated “72 hour savings MUST END WEDNESDAY” along with a countdown clock; and
- A savings claim for “Sleigh Walnut Solid Mango Computer Desk” with a crossed out “Was” price of “£689.63” and a “Now” price of “£429.75”. A statement in the product description stating “Please note this range is a web exclusive collection … not available to view in any of our showrooms”.
Complaint / Decision
The complainant challenged whether the two claims were misleading as they had implied that the product was only available for a certain period of time, when this was not the case, and whether the product had actually been sold at the “was” price. The ASA upheld the complaint.
Oak Furniture Land explained that the 72 hour promotion only applied to certain items which had been grouped together in a separate section on the website. The items included in the sale were clearly marked with a previous price, promotional price, and following the end of the promotion, an increased price. In particular, they noted that the computer desk product did not feature an “extra savings” or “was, was, now” price. They provided information showing the promotions that had run from January to July 2015 including a list of discounted products. Oak Furniture Land also provided information on the number of desks they had sold, including prices for the period from December 2014 to June 2015. They explained that the savings claim represented a “was” price advertised on another one of their websites.
Although the ASA considered the use of a banner and separate page for promotional products, they explained that the banner was not clear in indicating only 9 products were in the promotion which had a “was, was, now” price. Consumers were likely to understand that the promotion applied to all products on the website with a “was” and “now” price and that the price would increase at the end of the promotion. Having considered the sales data regarding the savings claim, the ASA noted that the evidence did not sufficiently show the product was sold at the usual selling price. In particular, there had been 70 transactions of the product, of which only 4 had been sold at the usual price.
As discussed in the Charles Tyrwhitt adjudication above, it is very important for advertisers to demonstrate that the higher price is the genuine usual selling price. They must also clearly distinguish to consumers what products are included in a promotion. If using specific wording to distinguish the products, as was done here, it should be mentioned in the promotion so that it is immediately clear to consumers.
12. Naim Audio Ltd t/a Naim, 9 September 2015
The company webpage promoted a power cable with the following claim:
“…it controls the corrupting influence of mains power on delicate audio electronics, creating the best possible environment in which they can shine”.
Complaint / Decision
The complainant challenged whether the claim was misleading and could be substantiated. The ASA upheld the complaint.
Naim provided a graph from a test carried out by an audio review magazine as well as an article from the magazine. They also provided results from a test they had carried out showing how the product could also protect audio products from other external vibrations.
The ASA considered that the claim implied that the product could mitigate the negative effect from the mains power and could have an effect on sound quality, suggesting a difference would be noticeable by consumers. The ASA noted that the review in the magazine was not adequate evidence to substantiate a claim. They also explained that the results from Naim’s own test did not demonstrate the corrupting influence from the mains power or that the product could control that influence.
This adjudication serves as a useful reminder to provide adequate robust evidence which demonstrates the claim in question.
13. Jane Plan Ltd, 9 September 2015
A TV ad for Jane Plan contained the following claims as voice-overs and on-screen text:
- “Jane Plan is one the UK’s leading diets, that delivers to your door”;
- “Lose weight the easy way”;
- “The thing that really makes Jane Plan successful is that it works”; and
- On screen text indicating the amount of weight lost by a person within a specific time.
Complaint / Decision
The complainant challenged whether the four claims above were misleading and could be substantiated including whether claims 2 and 3 were authorised health claims. The ASA upheld the complaint. Jane Plan explained that the product advertised was not a food or food supplement but a diet plan. In response to the first claim, Jane Plan provided evidence by way of reviews and awards by magazines, newspapers and online sources. Clearcast considered that the evidence supported the first claim.
Jane Plan did not believe the second claim to be a health claim. The claim had been made in relation to the programme as a whole and the voice-over in the ad supported this, despite some images of food being shown in the ad. Clearcast noted that the claim had been reviewed by a nutritional expert, who confirmed that the claim was not a health claim but referred to the convenience of the plan. Clearcast also explained that the average viewer would view the ad for a diet delivery service rather than an ad for food. Clearcast agreed with Jane Plan that the third claim was not a health claim but was based on the fact that Jane Plan had satisfied clients and had received many new clients through word of mouth.
As mentioned above, Jane Plan noted the ad was for a diet plan, with an emphasis on calorie control rather than a food. Further the ad made clear that Jane was a weight loss expert and so had an emphasis in weight loss rather than any other general nutrition. Referring to the use of a nutritional consultant, Clearcast explained that the claims had been substantiated as they included the rate of weight loss and BMI for each client featured.
The ASA explained that the first claim could be interpreted so that Jane Plan is one of the UK’s leading diets and it delivers food to a customer’s door or that Jane Plan is one of the UK’s leading diet delivery services. They considered that Jane Plan’s customer reviews and media coverage was not sufficient to substantiate a leading and best-selling claim. It was further explained that Jane Plan’s sales data covered diet delivery services in the UK rather than all diet companies and did not include data for several of their competitors.
The ASA considered the images of food in the ad and explained that this would establish a link in the viewers’ minds between the food and the claims. They concluded that, since claims 2, 3 and 4 were not authorised health claims and claim 4 referenced amounts of weight loss in relation to food, they were in breach of the Code.
This adjudication reiterates common messages apparent when substantiating claims such as the need for supporting evidence to be adequate, robust and specific to the product in question. As mentioned in the adjudications above, it is also important to try and make a claim which has one clear interpretation. If there are multiple interpretations, the advertiser should try and provide supporting evidence for all the interpretations. Advertisers should also be cautious of the content they use on product websites, such as images and product descriptions, as these may not portray the message in the claim.
COMPUTERS AND TELECOMMUNICATIONS
14. Vodafone Ltd, 2 September 2015
Ads for Vodafone contained the following claims:
- “We’re unbeatable at connecting your calls…Based on call connection performance across 26 towns and cities vs. three main competitors in April 2014 …for verification see …”; and
- “Our network Unbeatable at connecting calls…” “Vodafone is: Unbeatable at connecting your calls. Unbeatable at keeping your calls connected…Call connection was measured across 26 towns…”.
Complaint / Decision
Hutchinson 3G UK Ltd challenged whether the “unbeatable” claims were misleading and could be substantiated. The ASA upheld the complaint.
Vodafone believed that their top parity claim was acceptable as no other mobile network operator could beat them on call performance and connection. They stated that they had based their claims on data collected across 26 towns and cities in the UK in two separate 25 day periods and had also used methodology which adhered to the standards set by the European Telecommunications Standards Institute.
Due to the use of a top parity claim, the ASA expected to see robust evidence to substantiate Vodafone’s claims. The ASA sought advice from Ofcom who were concerned that the collected samples appeared to be limited and to have excluded large areas of the UK. The ASA were also concerned that the samples were not representative of the UK as there were no locations in Wales, Northern Ireland, most of Scotland and certain parts of England. Considering the nature of the ads, the ASA explained that despite the qualification given in the ads, consumers were still likely to interpret the claims on the basis of call performance across the UK. In reference to the qualification, the ASA noted that it contradicted rather than clarified the ads. The ASA concluded that Vodafone had provided insufficient substantiation to support their top parity claims.
It is unsurprising that the ASA upheld the complaints as there was a lack of robust evidence to substantiate the claims. Further, advertisers should ensure they refrain from exaggerating their claims unless they are able to support it with adequate evidence.