RETAIL

1. AB Ugg Boots Original 6 April 2016 

The ASA investigated three complaints relating to a number of claims on AB Ugg Boots website www.abugg.com.au which included: 

  1. “15 Days Money Back Guarantee!” on the order confirmation page; 
  2. “The style of our sheepskin boots is authentic Australian sheepskin boot style, our boots were made by UGG BOOTS ORIGINAL Company. We make our sheepskin boots in Australia from 100% Australian sheepskin” on the home page. 
  3. “Cancellation ...You should contact us immediately at service@abugg.com.au when you wish to cancel any order for the Products placed through our website ... It is our sole discretion to instruct our delivery partners to return parcels which are unclaimed/refused back to our premises in Melbourne, Australia ...”. 
  4. A number of product listings which featured a picture of the boots on an UGG® branded display shelf. 

Complaint / Decision 

The complainant challenged whether:

  1. ad (a) was misleading and could be substantiated because she was refused a refund;
  2. the references to Australia in ads (b) and (c) misleadingly implied the advertisers were based in Australia as the complainant understood from the packaging in which their order arrived, that they were based in Hong Kong;
  3. ad (d) misleadingly implied that products for sale were genuine UGG® boots, when they understood from the goods they had ordered that was not the case.

The ASA upheld all three complaints. 

AB Ugg did not respond to the ASA’s enquiries. 

The ASA understood that the complainant had only been given a partial refund. As AB Ugg did not provide evidence to demonstrate they honoured the money back guarantee the ASA concluded this claim had not been substantiated. In relation to the second complaint the ASA understood that the despatch address for the delivery was Hong Kong. AB Ugg did not provide any evidence to show that they were based in Australia and consequently this claim was also not substantiated and was misleading. AB Ugg also provided no evidence to demonstrate that their products were genuine UGG® boots meaning the third claim was also unsubstantiated and breached the Code. 

This adjudication is interesting as despite the website, www.abugg.com.au not being a UK website, there doesn’t seem to have been any consideration by the ASA as to whether the UK was targeted by AG UGG and whether the site was under the site was under the ASA’s remit. This is especially pertinent given that the Australian Advertising Standard Bureau has links to the European Advertising Standards Alliance, meaning the ASA could have referred the complaint to them. 

2. Argos Ltd 27 April 2016 

A TV ad for Argos, broadcast on 23 November 2015, stated, “save £100 on this Toshiba 15.6 inch laptop, just £179.99”. Images of the product were shown, and the savings and price statements appeared as on-screen text. 

Complaint / Decision 

A viewer, who had not been able to find an instance of the product being in stock when the ad was aired, challenged whether the ad breached the Code. 

The ASA upheld the complaint. 

Argos believed that they had made a reasonable estimate of demand, as the product did not sell out by the end of the promotion. They applied knowledge of previous Black Friday promotions and had taken the average daily sales of three previous promotions for the line of laptops and multiplied it by the number of days the promotion would run for. They then applied an additional uplift of 42.5% to reach their final figure of 6,000 units. 

The ASA observed that whilst Argos had noted the level of unit sales prior to the promotion, they had not demonstrated how they had used this data to estimate what the demand during this promotion was likely to be. The ASA noted the calculations used by Argos to estimate the number of units required, but considered they had not demonstrated why an additional uplift of 42.5% had been chosen. The ASA also understood that some consumers had been unable to purchase a laptop as the stores and website in their region had no stock left, even though national stock remained. The ASA considered that Argos had not made a reasonable estimate of likely demand, and as a result they also did not determine how much stock would be required across their various stores and website. Due to a lack of robust methodology in calculating demand the ASA therefore concluded the ad was misleading and breached the Code. 

This appears in a number of respects to be a somewhat harsh decision as Argos appears to have considered a variety of factors to estimate the likely demand and moreover, there was stock left nationally. In order to comply with the CAP Code, when planning for promotions marketers need to be able to demonstrate that they have made a reasonable estimate of demand for the products advertised. If it is expected that demand will exceed the supply marketing communication must make it clear that stock is limited. Once the promotion is underway marketers should monitor stocks and if a product becomes available marketing communications should be removed or amended to reflect this.

COMPUTERS AND TELECOMMUNICATIONS

3. Guccio Gucci SpA 6 April 2016 

Still images that appeared at the end of a video for the fashion brand Guccio Gucci SpA, shown on The Times website, featured several models dancing to a soundtrack. The final part of the ad featured several photos of individual models. Image (a) featured a woman leaning with her back to a wall wearing a long dress which covered her body from the neck down to her mid-calves including her arms. Image (b) featured another model who was sitting on a sofa. She was wearing a high necked jacket and a skirt which covered her down to her mid-thighs. 

Complaint / Decision 

The complainant, who believed the featured models appeared unhealthily thin, challenged whether the ad was irresponsible. 

The ASA upheld the complaint. 

Gucci advised that the ad was aimed at an older sophisticated market, representative of The Times readership and believed it was, to an extent, subjective whether the model looked unhealthily thin. They believed both models had slim builds, but were not depicted in a way that could be interpreted as unhealthily thin. Nowhere in the ads were the models ‘bones’ visible, their make-up was natural, lighting was uniform and warm to ensure no hollows were caused by shadows and their clothes were not revealing. 

With regards to the model on the sofa, the ASA noted that her legs, while slim, appeared to be generally in proportion with the rest of her body which was not excessively slender or underweight. They therefore did not consider that the model appeared unhealthily thin. 

By contrast, the ASA considered that the model leaning against the wall had slender arms and torso which appeared out of proportion with her head and body. In addition, the ASA considered her pose elongated her torso and accentuated her waist so that it appeared to be very small. The ASA also considered that her sombre facial expression and dark make up, particularly around her eyes, made her face look gaunt. Consequently the ASA concluded that the model in this image appeared unhealthily thin and that the ad was therefore irresponsible. 

The ASA can take a strong approach to ads (usually for clothing or perfume) featuring models that appear to be unhealthily thin. Weight perceptions of models featured in ads is also an issue which tends to attract complaints and, as a result, increased media attention. When assessing such complaints the ASA will focus on whether the models are depicted in a way that makes them look unhealthily thin or vulnerable (note last month’s adjudication in relation to Nobody's Child). As such marketers should consider a number of factors including whether the model’s bones are visible, the model’s pose, make-up, lighting, clothing and who the ad is targeted at. Moreover in light of the recent launch of a formal investigation by the ASA into gender stereotyping in advertising marketers featuring models in their ads should pay particular attention to CAP guidelines on this subject.

UTILITIES

4. Ecotricity Group Ltd 6 April 2016 

A number of claims on www.ecotricity.co.uk about its energy supply included “Britain's Greenest Energy” and “The electricity we supply is the greenest of any company in Britain”. 

Complaint / Decision 

Tesla Motors Ltd challenged whether claims that Ecotricity supplied:

  1. the greenest electricity; and
  2. the greenest energy in Britain were misleading and could be substantiated.

The ASA did not uphold either complaint. 

Ecotricity explained that in the UK, the accepted methodology for comparing electricity sources was via the Fuel Mix Disclosure (FMD) which Ofgem required to be published each year. The evidence for CO2 emissions for coal, gas, photovoltaic, wave & tidal, biogas, offshore and onshore wind, nuclear, and hydro-electric showed coal had the highest CO2 emissions and that on-shore wind had one of the lowest. Ecotricity also supplied the FMD for their electricity and that of their only commercial competitor who also provided electricity which came from 100% renewable sources. This showed that Ecotricity’s CO2 emissions were 10.7 g CO2 per kWh compared to that of their competitor at 18.2 g CO2 per kWh. They therefore believed they had substantiated their claim of “greenest electricity”. 

Ecotricity stated that they were the only supplier of “green gas” which was composed of mostly natural gas with a small percentage of sugar beet derived gas. As there was no prescribed methodology of assessing “green gas” sources they compared their own “green gas” to the norm which was 100% fossil fuel derived. As the lifecycle emissions associated with gas from sugar beet (the source of their green gas) were 99 g CO2 per kWh compared to 199 g CO2 per kWh when burning fossil fuel gas they believed they had substantiated the claim that they supplied the greenest energy in Britain. 

The ASA noted that as Ecotricity’s claims were absolute ones and also contained comparative claims they required substantiation and comparative data to support them. Ecotricity provided evidence of the fuel mix for the “Big Six” utility companies and six other suppliers that were their commercial competitors. The ASA considered that as the choice of companies provided was appropriate and relevant the claims that Ecotricity provided the greenest electricity had been substantiated and were not misleading. 

As Ecotricity demonstrated that no other supplier in the UK offered consumers “green gas” the ASA considered it was reasonable for them to compare their “green gas” CO2 emissions against those of 100% fossil fuel derived gas. The ASA considered Ecotricity had demonstrated that its electricity and green gas had the least impact on the environment compared to their competitors. Therefore the claims that they supplied the greenest energy in Britain had been substantiated and were not misleading. 

These were very bold claims both in terms of being “green claims” and “number one claims” and show that if you have substantiation, such claims can be made. However it is advisory to anticipate that complaints are likely to be made in response to bold claims and to make sure full and proper substantiation is available. Care should also be taken to ensure that the claims cover the whole lifecycle of the process, as was the case in this adjudication.

LEISURE

5. Paddy Power plc 13 April 2016 

A poster for Paddy Power, seen in Liverpool, stated in large text “YOU’LL NEVER WALK ALONE”. Underneath smaller text stated “(OR EVER AGAIN IF YOU PLAY FOR KLOPP)”. The ad contained an image of a wheelchair which stated on its back “PROPERTY OF L.F.C”. 

Complaint / Decision 

Two complainants challenged whether the ad was likely to cause serious or widespread offence. 

The ASA did not uphold the complaint. 

Paddy Power advised that in early 2016 there was widespread coverage of the fact that 13 Liverpool Football Club (LFC) players were deemed unfit to play as a result of hamstring or leg injuries. Paddy Power believed it was widely accepted amongst professionals within the game that the injuries had resulted from high-intensity training techniques used by the club’s new manager, Jurgen Klopp. Although they said they could see that the ad may be distasteful, they believed it was not offensive as it did not make fun of a disability. 

As the ad was shown in Liverpool, the ASA considered that many of the consumers who saw it would understand its context. Whilst the ASA acknowledged that care must be taken to avoid causing offence on the grounds of disability, they considered the reference to not being able to walk was clearly and immediately connected to ‘playing for Klopp’. This was further emphasised by text on the wheelchair, which stated “property of L.F.C”, showing it was specifically for those at the football club. This made it clear that the LFC players and their current injuries, rather than those with a disability, were the target of the humour. As such whilst the ad might be considered distasteful it was unlikely to cause serious or widespread offence. 

Paddy Power’s ads regularly attract complaints as their ads are designed to be controversial. However the ASA often takes a robust approach, and, for example, previously held that another Paddy Power ad, shown in July 2010, featuring a blind footballer kicking a cat into a tree was a “humorous depiction of a fictional situation” and therefore unlikely to cause widespread offence . This is in sharp contrast to the Paddy Power ad in March 2014 featuring Oscar Pistorious, which was found to have caused widespread offence for making light of disability and trivialising his murder trial. 

6. bet-at-home.com Internet Ltd 13 April 2016 

A tweet by BetPromotions4U stated “It’s your lucky day! [link] #betting #europaleague #liverpool #klopp” and featured a close-up photo of a woman pulling her trousers down. Text on her underwear read “IF YOU CAN READ THIS IT’S YOUR LUCKY DAY”. The tweet linked to https://uk.bet-at-home.com. 

Complaint / Decision 

The ASA challenged whether the ad breached the Code by linking gambling to sexual success.

bet-at-home.com stated that the tweet was from an affiliate and that the ad was geo-targeted and not intended for a UK audience. The affiliate however advised that the geo-targeting of the bet-at-home.com website meant that it was not possible to avoid UK consumers who clicked on the link going through to the UK website. 

The ASA upheld the complaint. 

The ASA considered that the tweet targeted UK consumers, amongst other European football fans and was therefore in their remit. In particular they noted that the tweet was in English, referenced a match taking place in England and included tags which would be of interest to UK football fans. It also did not feature anything to suggest it was not targeting UK audiences, such as referencing foreign currencies. The ASA considered that the ad clearly linked gambling with sexual success, which is prohibited by the CAP Code, and therefore concluded that the ad breached the Code. 

Geo-targeting is an increasingly popular tool used by marketers to deliver different content to consumers based on their location. Social media now means that ads can easily reach audiences across multiple jurisdictions. However, where geo-filters are applied in this way, marketers should ensure that ad is compliant with each jurisdiction targeted. This is also the second adjudication this month to consider targeting and shows that, at least in these examples, the ASA will proactively seek to enforce ads which they consider within their remit, even if the ad has a European-wide, or even international, context. The ASA can, however, take a strict approach and may take the view that such an ad is not within remit and instead refer the complaint to the European Advertising Standards Alliance (EASA), which co-ordinates the cross-border complaints system for its members (which include the ASA). The EASA also has links with several non-EASA member countries, such as Australia, whose codes are substantially different from the UK’s, ensuring that complaints can still be referred to those countries regulators.

HEALTH AND BEAUTY

7. Medichem International (Manufacturing) Ltd 13 April 2016

A website for FACEB4 facial cleansing products, http://www.faceb4.com, seen in July 2015, included the claims “UK’S MOST EFFECTIVE ANTI-BACTERIAL FACE WASH” and “Clinically proven to be the UK’s most effective anti-bacterial facewash” on the home page. 

Complaint / Decision 

DDD Ltd, who distribute Freederm products, challenged whether:

  1. the claim FACEB4 was the “UK’s most effective anti-bacterial facewash” was misleading and could be substantiated; and
  2. the claim “UK’s most effective anti-bacterial facewash” was verifiable.

The ASA upheld both complaints. 

Medichem advised that the claim “UK’s most effective anti-bacterial facewash” was based on independent tests which showed FaceB4 facewash was more effective at killing the spot-causing bacteria Propionibacterium acnes than all other leading anti-bacterial facewashes currently sold in the UK. This was stated on the back of the product packaging. They provided the two test reports. The also stated that the second claim had been verified by the test reports. 

The ASA considered that the claim would be understood as a comparison of the whole market. However, whilst the tests had been carried out by independent laboratories, they had only been carried out against leading competitors, not against the whole market. The ASA also considered that an effectiveness claim would need to evidence a perceptible benefit to users of the product. This was not evidenced in the tests submitted. As the evidence did not substantiate the claim as it would be understood by consumers, the ASA concluded the claim was misleading. 

The ASA noted that the ad did not direct consumers to any additional information regarding the comparison, including the basis for the claim and the methodology of the tests carried out. The ASA considered that this did not allow consumers or competitors to verify the comparison and therefore concluded that the claim breached the Code. 

This complaint is similar to the Ecotricity adjudication in the sense that the claim was seen by the ASA as a comparison of the whole market. However unlike Ecotricity, Medichem were unable to provide the strong level of substantiation required to support such a claim and, unlike Ecotricity, did not carry out their tests against the whole market. 

8. BioElectronics Corporation 20 April 2016 

A TV ad for ActiPatch pain relief patches featured a patient testimonial. It included the statements “Actipatch has changed my life. It’s changed the way I manage my pain and I love it.” 

The voice-over stated, “ActiPatch drug-free pain relief - the only thing you are going to feel is better. Back pain, knee pain and muscle pain really can make life miserable ... The ActiPatch drug-free pain relief device uses miniaturised clinical technology to relieve pain without medication, indigestion, tingling or drowsiness.”

The ad included shots of ActiPatch being applied to various body parts – shoulder, back, knee and hip. 

Complaint / Decision 

The complainant challenged whether the claim that the device could relieve pain was misleading and could be substantiated. 

The ASA upheld the complaint. 

BioElectronics provided various evidence to support the claims in the ad including published and peer reviewed studies. They also provided a clinical study document relating to an unpublished randomised clinical trial (RCT) of the device in patients with dysmenorrhea (menstrual pain) and a certificate showing Actipatch was a CE marked medical device. 

The ASA considered that consumers would interpret the ad to mean that Actipatch could effectively treat joint and muscle pain, including long-standing pain. They also considered that the claims implied a high degree of certainty regarding the effectiveness of the device. The ASA considered that the combination of at least two good quality trials on people with osteoarthritis and dysmenorrhea, along with a very large registration study meant that the device probably did work to provide pain relief in some people. However the small number of patients used in the RCTs meant there was insufficient evidence to conclude with certainty that the device was effective in relieving pain and therefore the ad was misleading. 

The ASA will always look for properly conducted and peer reviewed clinical studies, usually randomised with blind controls. Here, even though the ASA considered that the two RCTs appeared to provide genuine support for the claim, the numbers in the study were not sufficiently large enough to support the bold claims being made. Where health-related products imply a high degree of certainty in their claims, the ASA will expect such claims to be substantiated by evidence of a sufficiently high quality. Clinical trials are an acceptable source of evidence but marketers should ensure that these comprise of a reasonable number of subjects and that, ideally, they are replicated a number of times.

HOUSEHOLD

9. Grey Technology Ltd 20 April 2016 

Claims seen in March 2015 on http://www.gtech.co.uk and a national press ad: 

  1. A product page, stated “Gtech AirRAM ... The heavy weight that makes it so hard to lift and carry. Halved* ... 10/10 ‘Is this the best vacuum cleaner ever?’ ... AirRam not only outperforms a number of cordless products with ease, but matches the performance of mains powered upright vacuums*”. The asterisks linked to text at the bottom of the page that stated “*Performance comparisons based on independent test to IEC 60312-1 ed 1.1 sec 5.1 and 5.3 when compared to mains powered upright vacuums (Source: GFK, UK Top 20, 2013)”. 
  2. The press ad, was headed “10/10 ‘Is this the best vacuum cleaner ever?’ Daily Mail”. Text stated “... The ridiculous weight that makes it so hard to lift and carry. Halved* ... Astonishingly independent tests prove the AirRam matches the performance of mains powered upright vacuums”. Small print stated “*When compared to mains powered upright vacuums (Source: GFK, UK Top 20, 2013) † Performance comparisons based on independent test to IEC 60312-1 ed 1.1 sec 5.1 and 5.3 when compared to mains powered upright vacuums (Source: GFK, UK Top 20, 2013)”. 

Complaint / Decision 

Dyson Ltd challenged whether the claims:

  1. “matches the performance of mains powered upright vacuums” in ads (a) and (b) were misleading, because they believed a recent regulatory change, which affected the pick-up requirements for vacuuming hard floors with crevice, had a direct impact on any performance comparison;
  2. The weight claims in ads (a) and (b) were misleading and could be substantiated; and
  3. “10/10 'Is this the best vacuum cleaner ever?'” in ads (a) and ad (b) were misleading, because they were based on an out of date review.

The ASA upheld all three complaints. 

Gtech stated the claims were based on independent annual third party data which was received in mid-February. Given the time taken to collate the results they could not be reflected in advertising until the end of June and as such the most recent results they had were for 2013. Gtech understood that the trend in 2014 was for lighter upright vacuums and advised they would amend the claims once the 2014 data was made available to them. Gtech also believed the quote in the Daily Mail was genuine and unlikely to mislead consumers as although manufacturers had subsequently released newer models since the article was published, seven out of the nine models tested were still on the market with minor or no changes to their specifications. 

With regards to complaint 1, although the ASA acknowledged that new mains upright vacuum cleaners made to conform with the new energy labelling regulations would perform differently in comparisons with older machines, they considered that Gtech was working with the latest market data available to them and that consumers would understand that the data did not include newer models. They therefore concluded that the claims were unlikely to mislead on the basis suggested by Dyson. 

However the ASA noted that Gtech was only able to test 15 of the 20 cleaners named in the article. In addition the comparison did not include the results of dust removal from hard floors with a crevice. The ASA considered that consumers were unlikely to understand that sections “5.1 and 5.3” referred specifically to the tests for dust removal from carpet and hard flat floors only. As such the claim was misleading. 

Responding to the second complaint, the ASA again noted that only 15 of the 20 vacuum cleaners were tested. They also noted that the average weight of the products tested was 6.42 kg compared to 3.6 kg for the AirRam, which was not half the average weight of the 15 cleaners considered. Moreover, the ASA considered that consumers would interpret the claim to mean the AirRam was half the weight of each bestselling cleaner tested, which was not the case. Therefore they concluded the claims were likely to mislead. 

In relation to the third complaint, the ASA noted that whilst the 2012 Daily Mail article referenced in ad (a) was available to read further down the page, the claim itself appeared unreferenced next to a Good Housekeeping Institute logo, giving the impression the quote was attributed to them. The ASA also understood that the tests were unlikely to have been carried out to an accepted industry standard. The ASA further considered that the source and age of the quote needed to be clearly stated in the ads. Therefore as the quote was not suitably qualified the ASA considered that the claim was misleading. 

Where advertisers make comparative claims against competitors the ASA require clear evidence to substantiate such claims and should consider how consumers will interpret such bold claims. Those in the household sector should be aware that it is a highly competitive market so bold claims are likely to be open to challenge. It is imperative that this evidence is clearly and precisely linked to the claim made. In this instance, Gtech could have considered limiting the claim to only the 15 competitor vacuum cleaners tested, rather than the 20 claimed. With regards to complaint 2 Gtech could have inserted additional wording, such as ‘almost’ or ‘nearly’, to qualify the claims in relation to the cleaner’s weight. 

10. Victoria Plum Ltd 20 April 2016 

The home page of Victoria Plum’s website stated “UP TO 60% OFF” and showed a number of product ranges with “up to” discount levels. Text on the product page for the Arc Basin & Pedestal Large stated “£89.99” with an asterisked price of £194.99 crossed through. The asterisk was linked to text further down the page which stated “When purchased separately … Includes Click Clack Basin Waste - Slotted”. 

Complaint / Decision 

Victorian Plumbing, who believed the products were not available to purchase separately, challenged whether the savings claim was misleading. 

The ASA upheld the complaint. 

Victoria Plum stated all the products had been available to purchase separately on their website but that consumers often purchased the basin and pedestal together. They advised the two products had been available to purchase separately on their website for the duration of the offer for a combined price of £194.99. 

The ASA noted that in the four months leading up to the ad, the basin and pedestal had been sold for £159, £179 and £89.99. The waste unit needed to be purchased separately throughout for £15.98 or £16. The ASA noted that over 90% of sales were at £89.99 in this period which had been applied for eight weeks, the longest period of any of the offers. Taking into account the volume of sales at each price and the lengths of time each offer had been applied for the ASA considered that Victoria Plum had not demonstrated that the cross-through of £194.99 was the usual selling price for the items when bought separately and concluded the claim was misleading. 

Promotional prices should always be based on a products normal selling price as opposed to a temporarily increased price which will mislead the consumer as to the actual savings they can make. The ASA will look at both the time spent at each price in the preceding months to the promotions and the volume of sales made at each price to ascertain the “usual selling price” or genuine selling price, to determine whether the promotional price is distorted and therefore misleading.

TELEVISION

11. Kerry Foods Ltd 13 April 2016

A TV ad for a range of ham from Denny included a voice-over that stated, “Our new improved Denny Deli Style, 100% natural ingredients ham. It tastes better than ever before, and it's still the only ham with no artificial additives or preservatives.” On-screen text also stated “STILL THE ONLY HAM WITH NO ARTIFICIAL ADDITIVES NO ARTIFICIAL PRESERVATIVES”. A packet of ham was shown at the end of the ad, with text on the packaging that stated “WE ARE THE ONLY 100% NATURAL INGREDIENTS HAM”. 

Complaint / Decision 

The complainant challenged whether the claim “the only ham with no artificial additives or preservatives” was misleading and could be substantiated. 

The ASA did not uphold the complaint. 

Kerry Foods explained that they were the only producers who had access to the proprietary food technology used to make the product. They stated that they replaced the commonly used ingredients to make ham, such as phosphates, nitrates and flavourings, with 100% natural alternatives. Kerry Foods were able to check the validity of the claim through market trawls, conducted every two years, as all cooked hams were legally required to declare if the preservative sodium nitrate was used in their ingredients. The confirmed all other ham products marketed in the UK and Republic of Ireland (ROI) contained additives. 

Kerry Foods advised that the ad was broadcast in the RIO and Northern Ireland (NI) only and that Denny ham products were not sold outside of ROI and NI. They advised all the multiple grocery outlets were included in the trawl but not all convenience chains or independent stores. However they explained that typically these stores sold the top selling products, meaning it was unlikely any products had been missed. 

The ASA noted that the evidence provided by Kerry Foods included ham products from most supermarkets in both NI and ROI and also other food brands which also showed that those products contained sodium nitrate or another type of preservative and additives. Although the ASA noted that some convenience chains and smaller independent stores had not been included in the market trawl results, given that sodium nitrate was traditionally used in ham manufacturing and that production without the use of artificial ingredients was inherently difficult, the ASA considered the evidence provided was adequate to substantiate the claim. 

Like the Ecotricity adjudication, Kerry Foods made extremely bold claims in reference to being the only ham on the market with no artificial additives or preservatives and provided clear, substantive evidence to support this. Given the current trend towards consumers wanting ‘natural’ foods, marketers can gain a huge advantage by differentiating their products as containing only natural ingredients. However, advertisers should be aware that there is a high threshold in order to substantiate such claims and an increased risk of complaints as a result.

FOOD & DRINK

12. Tiana Fair Trade Organics Ltd 27 April 2016 

Claims about the product, crystallised coconut blossom nectar, on the website www.tiana-coconut.com, seen on 3 February 2016, included “guilt free sugar substitute”. 

Complaint / Decision 

The complainant challenged the claims below, which were subject to the requirements of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the CAP Code:

  1. “guilt free”; and
  2. “sugar substitute”.

The ASA upheld both complaints. 

Tiana stated the claim had since been amended to “guilt free alternative sugar” which they believed made it clear the product was a sugar. They advised that “guilt free” referred to the product’s low glycaemic index (GI) of 35 which meant it did not increase glucose in the blood, compared to sugar which had a GI of 100. They did not intend to make health claims and the ad only stated it was a sugar alternative without specifying health benefits or how it would affect blood glucose. 

The ASA considered that “guilt free sugar substitute” could be understood to reference a general benefit of the product to overall health or health-related well-being with a comparative element as it suggested it was beneficial compared to sugar. This was especially the case in the context of other claims in the ad such as “Superfoods” and “healthier alternative” which were also general health claims. As there were no authorised health claims relating to GI, these could not be made in advertising. The ASA also considered that the claim could be understood as a nutrition claim. As it did not reflect the wording of a permitted nutrition claim, it again did not meet the conditions of use to allow it to carry such a claim and therefore breached Code rules. 

In light of the increasingly negative perception of sugar as an ingredient in foods, many advertisers are seeking to highlight their products as sugar-free or comparatively better than similar products containing sugar. However, as this adjudication illustrates, marketers should ensure that they do not fall into the trap of making unauthorised health and/or nutrition claims when making such claims, if they do not meet the requirements to do so.

HOLIDAYS & TRAVEL

13. VUR Village Trading No 1 Ltd 27 April 2016 

Two promotions on the Village Hotels website for Friday night packages: 

  1. The first ad, was headed “Feel Good Fridays.” Text stated “1 Night Stay, 2 Course Dinner ... Choose your hotel and book your break today ... From £59”. A drop-down menu on the page displayed the hotels participating on the promotion and allowed the visitor to select one to proceed with booking. 
  2. The second ad was also headed “Feel Good Fridays.” Text stated “Friday's [sic] until 30th November 2016 ... Choose your location and book in for your break with us”. A drop-down menu on the page displayed the hotels participating in the promotion and allowed the visitor to select one to proceed with booking. Beside the name of each hotel text stated “from £59”. 

Complaint / Decision 

The complainant, who had attempted to book the promotion for one of the listed hotels and discovered that no rooms were available under promotion (a) and were not available for £59 under promotion (b), challenged whether:

  1. sufficient information about availability for consumers to make an informed decision on whether or not to participate had been provided in ad (a); and
  2. the claim “from £59” in ad (b) was misleading and could be substantiated.

The ASA upheld both complaints. 

Village Hotels stated that it was difficult to make a reasonable estimate of likely demand as there was no directly comparable historical data for the Feel Good Friday offer. They believed that as they were not selling a single physical product, the definition of ‘stock’ for the purposes of the promotion was debatable. In order to convey availability to consumers, Village Hotels advised that they had the condition “All rates are subject to availability” in the terms and conditions for the offer, which they believed was sufficient. They stated that many customers would just book another night or another hotel if their first choice was unavailable. 

Village Hotels advised that, like most big hotel groups, they used a revenue management system to control prices. 121 rooms were sold at the initial £59 price and the price in early February was now £69 which was subject to movement depending on demand and availability. 

While the ASA noted that “All rates are subject to availability” was stated in the click-through terms and conditions, they considered that this was insufficient to indicate the status of rooms at a particular hotel. As the ad appeared on a live part of the advertiser’s website, the ASA considered that this should reflect current availability and that the advertiser should ensure the information was up to date and accurate. The ASA also considered that ‘stock’ related to the number of rooms available in each hotel and that a reasonable estimate of likely response should have been calculated on this basis. As insufficient information had been provided and the ad had not been amended when hotels became unavailable the ASA therefore found that ad (a) was misleading. 

The ASA expected to see evidence that at least 10% of promotional rooms were available at the ‘from’ price stated in the ad and that these were reasonably distributed across the promotional period. However no documentary evidence was provided to demonstrate this. The ASA considered that consumers would perceive the product as a standalone promotional package and that prices would be set and not subject to the usual fluctuation of hotel pricing. However the ASA understood that at any point in the promotion Village Hotels did not know whether the rooms would change in price and, if so, in what direction and by how much. As a result of the above points the ASA concluded that ad (b) was also misleading. 

Under the CAP Code, marketers must make a reasonable estimate of demand when planning a promotion and should be aware that the condition to require 10% of the product to be made available at the ‘from’ price is ASA standard practice. Where the promotion occurs across a number of stores, or in this case hotels, the advertiser must ensure that the product in question is reasonably distributed across each store for the entire promotional period. Marketers whose prices usually fluctuate depending on demand and availability should consider whether such fluctuations are appropriate for the promotion being offered or whether a fixed price for the duration of the promotion should be applied instead. It is not enough to say that a promotion is subject to availability, especially where this statement is insufficient to indicate the status of the product’s availability. Advertisers should also take extra care relying on previous promotions to estimate demand as increasingly consumers use social media to share promotions meaning interest can be much higher.