This summary provides a selection of September’s most interesting ASA adjudications and highlights the key issues considered in those adjudications. This month looks at the latest ruling from the ASA on how to flag a promotional tweet as a marketing communication where an advertiser ‘partners’ with a celebrity to take advantage of their social media reach, which should provide guidance to advertisers in this difficult area, as well as featuring another adjudication examining the identifiability of marketing communications where an advertiser adopted an alternative strategy to catch the eye of consumers.
This month also features two adjudications, one of which attracted a great deal of media attention, relating to offensive material used in adverts. Both adverts were eventually found to be in breach of the Code for their use of negative sexual or racial connotations.
Finally, also featured in September’s update are several adjudications where the ASA have examined the price at which goods and services are marketed to consumers – where these are not completely transparent and accurate, or contain ‘hidden’ terms or conditions, the ASA will often reach a conclusion that they are misleading in breach of the Code.
1. Oak Furniture Land – 7 September 2016 – An advertiser’s use of a visual ‘price tag’ in its advert was found to be misleading for implying that this ‘base’ price related to the more expensive on-screen product.
2. People Tree Ltd – 21 September 2016 – A complaint made in relation to a model used to advertise a clothing product was not upheld as the model did not appear underweight or unhealthily thin, and the advert was therefore not irresponsible.
HEALTH AND BEAUTY
3. The Perfect Cosmetics Company Ltd – 7 September 2016 – Claims made regarding the efficacy of wrinkle-reducing cream were found to be generally accepted and capable of full substantiation, and were therefore not misleading.
4. Aspire Drinks Ltd – 7 September 2016 – A claim on the advertiser’s website was held to be in breach of the Code as it did not properly reflect the relevant ‘on hold’ claim submitted to the EU Authority, and was not capable of full and proper substantiation.
5. Volkswagen Group UK Ltd – 28 September 2016 – An advert for an Audi containing slow motion close-ups of the car making various manoeuvres was not found to be irresponsible due to the advert’s focus on vehicle design, and not speed, and the general ‘serene tone’ of the advert.
FOOD & DRINK
6. Alpro (UK) Ltd – 21 September 2016 – A tweet circulated by a television presenter promoting a brand of yoghurt was found to be in breach of the Code for not being obviously identifiable as a marketing communication.
7. Lending Stream LLC – 21 September 2016 – A complaint made regarding the lack of a representative example in an advert for a payday loan company was not upheld.
8. New Broom Ltd – 14 September 2016 – Claims used on the advertiser’s website to market its estate agency services were found to be incapable of full substantiation and contained competitor claims that did not allow for verification, and were therefore in breach of the Code.
9. Budd Electrical Ltd – 7 September 2016 – A radio advert containing a statement which objectified women was found to be offensive in breach of the Code.
10. UK Energy Watch Ltd – 21 September 2016 – An advert marketing “free” LED replacement lighting was found to be misleading as it contained ‘hidden charges’ and conditions which were not brought to the attention of consumers.
11. Seventy Thirty Ltd – 7 September 2016 – Claims relating to the ‘high net-worth’ status of individuals used on the advertiser’s match-making website were capable of substantiation and therefore not misleading.
12. Hyperoptic Ltd – 14 September 2016 – A direct mailing for the advertiser’s broadband services was found to be in breach of the Code for failing to be clearly identifiable to consumers as marketing communications.
13. Ginger Pop Ltd – 21 September 2016 – An advert was found to be in breach of the harm and offence sections of the Code for featuring a ‘golly’ character which was likely to represent a negative racial stereotype.
14. Cosmo Gaming Company Ltd t/a NetBet – 28 September 2016 – A television advert for an online casino was found to be irresponsible for linking gambling with positive changes in character and the general lives of those who gambled.
1. Oak Furniture Land – 7 September 2016
The retailer’s television advert promoted their bank holiday sale, with a voiceover stating “At Oak Furniture Land there are solid hardwood sideboards from just two-four-nine”. The advert featured a sideboard alongside a red ‘price label’ graphic featuring the text “From £249”. Smaller on-screen text stated “Featured product £449”.
Complaint / Decision
The complainant, who understood that the more prominent prices did not relate to the product featured, and found the small on-screen text difficult to read, challenged whether the advert was misleading.
The complaint was upheld.
The retailer claimed that the advert featured a form of pricing commonly used in the advertising industry, and that at no point did the advert imply that the product featured was available at the ‘from’ price.
However, the ASA noted that during the time in which the product was shown on the advert, the voice-over and ‘price tag’ both mentioned or displayed the price £249. The price tag, in particular, was prominent and gave the impression that it related to the product. The ASA therefore considered that the overall impression viewers would take from this combination of the tag and voice-over was that the featured product would be available for £249.
The ASA also noted that the advert included on-screen text, which stated that the featured product was £449. The text was, however, much smaller than the ‘price tag’ and the letters were very narrow. The text was also laid against the background of the image of the sideboard for a significant part of the advert, meaning it was hard to see and could be easily missed by consumers. In all, the ASA concluded that the small-print text was insufficiently prominent to counteract the impression created by the voice-over and ‘price tag’ that the product could be purchased for £249. The advert was therefore misleading, in breach of the Code.
This decision highlights the importance of clarity in pricing of products shown in adverts and indeed the risk of highlighting lower prices to attract attention. If highlighting the low prices from which a range of products ‘starts at’ or can be bought ‘from’, advertisers should always ensure that the accompanying images do not mislead with regard to pricing, in particular by showing a product which is, in fact, more expensive. In this case, although small print was used in the advert, the ASA concluded that this effectively contradicted rather than clarified the headline claim.
2. People Tree Ltd – 21 September 2016
A product listing on the advertiser’s website for a dress featured an image of a model wearing the product against a white background.
Complaint / Decision
The complainant challenged whether the advert was irresponsible on the basis that the featured model appeared to be extremely and unhealthy thin.
The ASA accepted the responses of the advertiser, who maintained that they looked for healthy models who could wear their clothing without further amendments being made, and did not uphold the complaint.
The ASA acknowledged that the model’s stance and the shape of the asymmetric dress, as well as the white background against which she had been photographed, emphasised her slim waist. The ASA commented that whilst the model’s arms and legs were slim, they were not out of proportion with the rest of her body. It was also noted that several further smaller images were provided featuring the back of the dress where the model’s waist appeared to be less slim than pictured in the main image due to some clever positioning.
The ASA considered that whilst the model appeared slender in appearance, she did not look underweight or unhealthily thin, and therefore the advert was not irresponsible or otherwise in breach of the Code. People Tree emphasised the ethical nature of their brand and, as such, took the decision voluntarily to take the image off their website.
The subject of the perceived health of models in marketing material is often an area of concern with adverts, and there remains concern over the frequency with which advertisers use models that appear to be underweight. The ASA continue to monitor the situation – over the past eighteen months they have upheld several complaints against high profile fashion companies for using models considered to be ‘very thin’ or ‘unhealthily underweight’, and therefore irresponsible for use in marketing material. Retail advertisers should draw some comfort from this adjudication which identified the model in concern as being ‘slender’ but otherwise of a healthy weight and therefore did not find the advert to be in breach of the Code, although there is clearly a fine line between what may be considered acceptable or unacceptable body images.
HEALTH AND BEAUTY
3. The Perfect Cosmetics Company Ltd – 7 September 2016
A television advert for the advertiser’s eye cream included a ‘before and after’ set of photos for one woman who had used the product on the lines and wrinkles around and under her left eye. The photos were shown side-by-side, with the ‘after’ photo showing a considerable decrease in the puffiness and wrinkles around her eye. A voice-over stated “We’re so confident in the performance of ‘My Perfect Eyes’, we had it examined by UK dermatherapist Dr Hugo Kitchen, using a VISIA scanner. Here’s what he found”. Dr Kitchen then stated “As you can see from the screen where we’ve measured her wrinkle scores on VISIA, to be honest, they’ve virtually disappeared… I really am very impressed by the effectiveness”.
Complaint / Decision
A viewer challenged whether the claims made by the medical professional about the temporary reduction in wrinkles, as shown by the ‘before and after photos’, were misleading and could be substantiated.
The complaint was not upheld by the ASA.
The ASA noted that the advert was for a topically applied eye cream and featured a number of customer testimonials about the product. On-screen text explained the effects of the cream and identified that these were temporary. The ASA therefore considered viewers were unlikely to understand the eye cream to deliver permanent results.
The ASA considered that efficacy claims about topical creams applied to improve the appearance of wrinkles were well established and accepted within the cosmetics industry. The product contained ingredients which dried out when applied to the skin and formed a film, producing a tightening effect which made the appearance of wrinkles reduce dramatically. The substantiation demonstrated that the ingredients had an immediate effect, albeit it only a temporary one lasting a few hours.
In addition, the ASA were provided with the results of a clinical trial which was ten-hours in duration, taken across 24 subjects, and considered to be within the target market for the product. A ‘control’ eye was used and baseline measurements taken; the product was then assessed in three different ways. The study reported a marked improvement on the treated eye (in terms of both swelling and wrinkle appearance), whilst no improvement at all was noted on the untreated eye.
The ASA also assessed the ‘before and after’ photos that featured in the advert and acknowledged that there was a distinct difference in the facial expressions and appearance in both of these. In the latter the individual’s eyebrows were raised and her eyelids appeared extended, compared to the former where the individual appeared to be squinting. The individual was also only wearing makeup in the ‘after’ photo.
Notwithstanding these differences in the ‘before’ and ‘after’ photos, the ASA considered that the study had shown that the product had a noticeable, although temporary, effect on the appearance of wrinkles in and around the eye area. For these reasons, the ASA concluded that the claim made (accompanied by the ‘before and after’ photos) did not misleadingly exaggerate the effects of the cream.
Efficacy claims for health and beauty products have been a contentious issue for many years. Historically, the ASA tended to take a very strict approach to any claims made. However, with input from the Cosmetic, Toiletry and Perfumery Association (“CTPA”), the ASA is now far more accepting of the substantiation offered by advertisers for the efficacy of their products and associated claims. The large numbers of negative findings against cosmetic adverts has accordingly dropped off markedly in recent years, to the relief of many in the industry. Those in the health and beauty industry are, however, advised to take note of the CTPA’s Guide to Advertising Claims, which, although written in 2008, is still relevant guidance on these issues.
4. Aspire Drinks Ltd – 7 September 2016
The advertiser’s website contained a statement “Green tea extract helps reduce body fat”.
Complaint / Decision
Two complainants challenged the claim in question, which was subject to EC Regulation on Nutrition and Health Claims made on Foods (reflected in the CAP Code).
The ASA upheld the complaint.
The advertiser sought unsuccessfully to rely on a claim submitted to the European Food Safety Authority (“EFSA”) which was ‘on hold’, and a body of evidence produced which they believed demonstrated that additional calories were burnt following consumption of the product.
The ASA first noted that the directors of the company were also the directors and primary shareholders of Farenheit60 Ltd, a company against which the ASA had ruled in respect of very similar claims in 2012.
The ASA considered that the claim “Green tea extract helps to reduce body fat” was a health claim. The ASA also understood that a proposed health claim, which was currently listed ‘on hold’ in a list of botanical substances, had been submitted to EFSA for the botanical substance ‘Epigallocatechin-3-gallate’ (“EGCG)/green tea extract, rich in EGCG’. However, this claim did not explain that it was the EGCG in the green tea that had the claimed effect, and so did not have the same meaning as the claim submitted to EFSA.
Moreover, the ASA understood that the claim had received an EFSA negative opinion as a cause and effect relationship had not been established between the consumption of the catechins in the green tea and contribution to the maintenance of normal body weight. The ASA also understood that seven studies relating to the health claim in concern had previously been rejected by EFSA, and that other studies had since been submitted for analysis.
The ASA also had concerns about the substantiation provided. First, the case study commissioned by the advertiser measured only the short-term thermogenic effects immediately after consuming one can of the product. It did not measure the long-term effects on fat reduction or weight loss, and therefore the study was not considered relevant to the health claim made. There were further shortfalls with the survey including an overly small sample size, non-blinded assessors, and the failure to take into account the additional ingredients in the product.
The remainder of the substantiation provided included in vitro studies which looked at the antioxidant and cytotoxicity properties of green tea catechins (including EGCG) and were therefore not relevant to the health claim concerning the reduction of body fat. Others measured the effects of the product on rats or measured the effects of a completely different type of tea. For these reasons the ASA did not consider the studies to provide adequate substantiation for the health claim in the advert, and therefore the advert breached the Code.
This was clearly a bold claim to be made, but is a reminder of the importance of strictly applying the provisions in the Nutrition and Health Claims Regulations. It is also a reminder of the importance of using appropriate scientific studies by way of substantiate. In vitro studies, studies not on humans, and studies on something other than the advertised will generally not be adequate.
5. Volkswagen Group UK Ltd – 28 September 2016
A television advert promoted the advertiser’s R8 model. The advert began by showing a close-up of the vehicle, in slow motion, drifting and spinning inside a film studio. The advert then cut to a shot above the car showing the vehicle performing a ‘doughnut’ manoeuvre ending with smoke coming out of the wheel arches. The tyres marks on the studio floor eventually formed the Audi logo with on-screen text stating “Speed isn’t everything”.
Complaint / Decision
Four complainants challenged whether or not the advert condoned irresponsible and dangerous driving.
The ASA did not uphold the complaint.
The ASA noted that large parts of the advert contained slow-motion footage of the car performing drifting and turning manoeuvres, the use of which created a composed and controlled feel to the advert rather than one of excitement or dangerous aggression. The use of close-ups also meant that it was not apparent that the car was performing ‘doughnut’ manoeuvres until the very end of the advert, at which point the Audi logo was visible. The close-up shots, in combination with the closing statement “Speed isn’t everything”, also meant that the focus of the advert was on vehicle design and not speed.
Moreover, the ASA noted that whilst the advert mainly concentrated on specific parts of the vehicle, it was clear to consumers that it had been shot in a studio and accordingly did not represent or resemble realistic driving conditions. Viewers were likely to recognise that the advert was not a demonstration of the vehicle’s handling characteristics in normal conditions. This was accentuated by the lack of any vehicle sounds that one would associate with the road; instead the soundtrack consisted of strings and a vocal which the ASA considered added to the overall serene tone of the advert.
In conclusion the ASA noted that the ‘doughnut’ manoeuvre, whilst dangerous if performed in normal driving conditions, was only shown very briefly at the end of the advert. In combination with the soundtrack, the slow motion close-up shots, and the closing on-screen text, the ASA considered that the advert focused on the aesthetics of the vehicle design, rather than demonstrating the power of handling of the R8. On this basis, the advert did not condone irresponsible or dangerous driving.
This adjudication can be directly contrasted with the decision reached against Audi for a different R8 advert last month. Unlike the advert in August’s edition, this did not contain any images or audio implying excessive speed and power of the vehicle, nor any implication of link between speed and human excitement.
FOOD & DRINK
6. Alpro (UK) Ltd – 21 September 2016
A tweet from television presenter AJ Odudu’s Twitter account stated “FAVE summer snack vibes @Alpro_UK… #Alpro # GoOn”, and included a close-up photo of a blackcurrant Alpro Go On pot in Ms. Odudu’s hand.
Complaint / Decision
The complainant challenged whether the advert was obviously identifiable as marketing communication.
The ASA upheld the complaint. Alpro sought to argue that the tweet was outside the scope of the CAP Code, but this was dismissed.
The ASA understood that a financial agreement had been entered into whereby Ms Odudu took part in a campaign to launch Alpro’s Go On yoghurt over a three month period. It was agreed that various product-related tweets would be published on Ms Odudu’s Twitter account, and that all intellectual property materials used during the campaign would belong to Alpro. The parties also agreed that Ms Odudu would not advertise the products of any competitor companies during the contractual period. In this sense, Alpro had a general level of control over Ms Odudu’s social media activities.
Additionally, although the contract required Ms Odudu to draft her social media posts herself, they were to be based on key messages provided by Alpro – Ms Odudu’s only control was to ensure that the specific wording was in her own ‘voice’. The ASA noted that Alpro was also to have sight of any posts before publication, and would therefore have had the opportunity to request edits should they so wish.
The ASA therefore had no hesitation in concluding that the tweet was a marketing communication falling within the remit of the CAP Code. The ASA then assessed whether the advert was obviously identifiable as a marketing communication.
The tweet was presented in a similar ‘voice’ to Ms Odudu’s other tweets and did not contain any clear identifiers to mark it out. The ASA noted that whilst the tweet contained Alpro’s Twitter handle and campaign hashtags, they did not consider that these would make the commercial intent of the content clear to consumers (or Alpro’s control over the nature of the tweets). The ASA concluded that the content would not have been obviously identifiable to Ms Odudu’s 25,000 Twitter followers as a marketing communication, and therefore it breached the Code. The ASA told Alpro and Ms Odudu to ensure that all future marketing communications were identifiable as such, expressly suggesting by including an identifier such as “#ad”.
This adjudication however acts as a warning to advertisers when using the social media accounts of brand ambassadors to circulate tweets, particularly when they are in the ‘voice’ of the ambassador, without any clear identifiers to mark the tweet out as a marketing communication. The issue as to what is a clear identifier is, however, still open to some debate.
This adjudication is similar to the complaint upheld against Nike and their brand ambassadors Wayne Rooney and Jack Wilshere in June 2012, in which two tweets relating to Nike’s ‘#makeitcount’ campaign were found to be in breach of the Code as the ASA did not consider that they contained anything to indicate sufficiently clearly that they formed part of Nike’s marketing communications.
By contrast, in the subsequent adjudication from September 2013 involving Nike and Wayne Rooney, the complaint against the advertiser was not upheld notwithstanding the failure again to use an indicator such as ‘#ad’ or ‘#spon’. The ASA were satisfied in this case that the communication contained sufficient references to Nike and their advertising campaign to make it clearly identifiable as marketing material.
There is therefore a fine, and somewhat hazy, line between acceptable and unacceptable tweets from the accounts of brand ambassadors which can make life difficult for advertisers.
There are a number of possible options when marking material out as being a marketing communication. It is clearly easiest to use an indicator such as ‘#ad’ or ‘#spon’ (‘#spon’ seems to be preferred by the ASA where the ambassador retains editorial control), but marketing departments will often be reluctant to use these terms. The September 2013 Nike adjudication shows that alternatives can be used. Advertisers should, however, seek to be comprehensive, with whatever express and clear references can be used, although with promotional tweets this will inevitably be challenging in only 140 characters. Including a link to a picture in this type of situation can help.
7. Lending Stream LLC – 21 September 2016
Three television adverts for a payday loans company featured a man called Lenny in a rowing boat travelling down a river. The first advert made reference to customers being able to apply for up to £1,500 “within minutes”. The second advert featured text stating that funds are repayable at “Representative APR 1,272%”. In the third advert, one of the characters had used funds from the advertiser to get a kitchen appliance fixed, with the same on-screen reference to the rate of repayment.
Complaint / Decision
The viewer, who noted that the adverts included a representative APR (RAPR) but not a representative rate example, challenged whether the adverts were in breach of the Code.
The ASA did not uphold the complaint.
The ASA considered that the advertiser was not required to include a representative example if they included any information in their advert which triggered the requirement to include an RAPR, such as an incentive to apply for credit or a favourable comparison. The ASA noted the examples provided in the third advert, such as the customer who fixed her washing machine, and the claim “level headed approach to help folks”, but concluded that neither of these were likely to be seen as capable of persuading, influencing or otherwise incentivising customers to apply for credit.
However, the ASA did consider the claim “six months to pay it back” in the third advert to be likely to encourage viewers to apply for a loan on the basis that they could delay payment for a significant amount of time. Moreover, the opportunity to receive “funds within minutes” referenced in all three adverts was likely to influence customers to apply for credit.
Each advert, therefore, included information which triggered the inclusion of an RAPR, while the RAPR was the only rate of interest featured with no reference to a rate of cost. On this basis, the ASA concluded that the adverts were not required to include a representative example, and were therefore compliant with the Code.
Payday loans are increasingly popular and are coming under heightened scrutiny from the ASA. To avoid falling foul of the Code advertisers should always ensure they comply with various rules such as the requirement to include examples when detailing repayment rates. However, this will not apply where information is used which automatically triggers the inclusion of an RAPR.
8. New Broom Ltd – 14 September 2016
A television advert and the advertiser’s website both promoted Purplebricks, an online estate agent. The television advert included an agent seen viewing a client’s property, who stated “You could save thousands”. Small print stated “Based on average estate agent’s commission – Source: Which? Survey 2011”. The website included the claim “£4,158 AVERAGE CUSTOMER SAVING WHEN SELLING”. Next to that text was a link to further text which stated “Savings based on Purplebricks average sale price…with the UK average commission rate of 1.5% applied. Rates vary”.
Complaint / Decision
The complainant challenged the claims made – whether the claims “You could save thousands” and “£4,158 AVERAGE CUSTOMER SAVING” used on the advertiser’s television advert and website respectively were misleading and capable of substantiation.
The ASA upheld the complaints made on the advertiser’s website, but not those on its television advert.
Regarding the television advert, the ASA commented that the 2011 survey relied upon by the advertiser did not lend itself to the purpose Purplebricks was trying to use it for due to its methodology. The ASA also considered a communication from one conveyancing firm to demonstrate national averages in commission rates to be inadequate. However, despite these concerns, the ASA understood that an estate agent would be required to offer a very low commission for consumers not to make a saving with Purplebricks. Given how viewers were likely to interpret the claim, the ASA concluded that the television advert was unlikely to mislead.
In relation to the claims made on the website, the ASA noted that to substantiate the savings claim of “£4,158 AVERAGE SAVING” the advertiser would have to provide evidence showing the average asking price in the UK from a property advertising website dated March 2016. Purplebricks were not able to provide this, nor any data to demonstrate their average fee. The figure provided by the advertiser of an ‘average commission fee of 1.5%’ was noted, but considered insufficient substantiation for the claim made, which was therefore misleading to consumers.
Moreover, the online claims, whilst not naming specific competitors, implied that they referred to high street estate agents in general. The advert gave no indication as to how the average sale price had been calculated. The ASA took this into account in concluding that the advert did not allow for verification by consumers or competitors, as required by the Code.
The advertiser was lucky in this instance not to have had the complaint in relation to the television advert upheld, particularly relying on a 2011 survey. Nevertheless, this ruling is a useful reminder for advertisers to take care when presenting savings claims against competitor products or services, particularly when specific figures are stated. When highlighting savings claims, advertisers should always do so clearly and precisely, together with sufficient explanation for any comparison to ensure it is verifiable. Whilst ruling in part against the advertiser, the ASA did acknowledge Purplebricks’ willingness to engage in the process and its offers to make changes to its marketing material. Being seen to act responsibly in light of any complaint is clearly recommended when dealing with the ASA.
9. Budd Electrical Ltd – 7 September 2016
A radio advert for Budd Electrical stated “Yes, everyone’s going to Budd Electrical! It’s B, U, double D, and we all love a double D, right?...”.
Complaint / Decision
Two listeners challenged whether the advert was offensive, as they believed the statement in concern was sexist and objectified women.
The ASA upheld the complaint.
The advertiser sought to argue that the ‘DD’ reference was intended to be a reference to Double Diamond beer, which they said was enjoyed by both men and women. However, this line of argument was dismissed.
The ASA, not surprisingly, considered that listeners would understand the “double D” allusion to be a reference to women’s bra cup size. Although the advert was not overtly sexual in nature, it nevertheless drew attention to women’s bra cup size which bore no relevance to the advertised electrical service, and presented women as sexual objects by inviting listeners to focus on their bra size.
The ASA had no hesitation in concluding that the statement in concern objectified women and was therefore sexist and likely to cause serious or widespread offence.
10. UK Energy Watch Ltd – 21 September 2016
An email sent by the advertiser offering free LED replacement lighting had the subject line “Fully Funded LED Lighting – save up to 80% on energy costs”. Text within the body of the email stated “UK Energy Watch is pleased to offer your business a FREE replacement of the lighting across your office, property or estate, helping you to reduce your electricity bill by up to 80%. Our LED lighting is installed with ZERO capital outlay”. It went on to state “What have you got to lose? It costs you nothing. You never get a bill from us. Challenge UK Energy Watch to reduce your bills”.
Complaint / Decision
The complainant, who enquired about the offer, challenged whether the advert was misleading because they understood that costs were, in fact, payable.
Despite the advertisers argument that their advertising accurately reflected how the replacement scheme worked because the customer was not paying for the installation but instead restructuring the outgoing costs that they already had, the ASA upheld the complaint.
The ASA considered that the claims made in the advert, namely “Fully Funded LED Lighting”, “FREE replacement of lighting across your office”, and “ZERO capital outlay”, were likely to be understood by a trader to mean that they would not incur any costs when taking up the advertiser’s offer of free replacement LED lighting. The fact that traders would have to pay for the lighting installation, albeit in monthly installments, was information likely to affect their decision to take up the offer in question. Without this information, the advert was likely to mislead.
It is clear from the Consumer Protection from Unfair Trading Regulations and the CJEU decision in PurelyCreative and Others v Office of Fair Trading that marketing communications should not describe a product or service as “free” if the consumer had to pay anything other than the unavoidable cost of responding to the offer and collecting or paying for delivery of the item. This ruling is a reminder for advertisers to be very careful in the way they present offers of ‘free’ services or products so that these are not unambiguous or contain conditions which are not clearly signposted to consumers.
11. Seventy Thirty Ltd – 7 September 2016
Claims made on the advertiser’s website promoted a match-making service. The text used stated “Our Members are high net-worth individuals…”.
Complaint / Decision
The complainant, who joined the service and had been offered the chance to meet someone who they did not believe was classified as a high net-worth individual, challenged whether the claim used on the advertiser’s website was misleading and capable of substantiation.
The ASA did not uphold the complaint. It accepted the advertiser’s arguments that the term “high net-worth” was subjective, and satisfied itself with the fact that prospective members had to pay large up-front cash fees before using the service. The ASA also considered that consumers would interpret the headline claim to mean that members of the match-making service were wealthy, but would make no assumptions as to how much members earned.
The advertiser also provided the ASA with definitive proof that checks had been carried out in relation to the complainant’s file. Based on this the ASA were satisfied that there was sufficient substantiation for the claim made so that the advert was not likely to mislead.
12. Hyperoptic Ltd – 14 September 2016
A direct mailing for the advertiser’s broadband services was addressed to “The Resident” at the recipient’s address. Text on the mailshot stated “Open now to pick up your speed”. Smaller text at the bottom of the leaflet stated “Sent by Hyperoptic Ltd. If undelivered return to…”. The reverse of the leaflet had the appearance of a card notifying a household of an undelivered parcel or letter, with text which read “Hyperoptic – SORRY, Your current broadband supplier couldn’t deliver… could not be downloaded because: Your broadband provider is charging you for fibre, but squeezing your data through old copper phone lines – Please see inside to pick up your speed”.
Complaint / Decision
The recipient challenged whether the advert was obviously identifiable as a marketing communication, as required by the Code.
Despite the advertiser’s protestations that the envelope in concern made it clear that it contained marketing material from their company (specifically, due to the prominence of the text “Promotional terms” on the reverse of the envelope and the references to “open now” and “see inside”), the ASA upheld the complaint.
The ASA noted that the outside of the mailing bore a strong resemblance in size, shape, colour and design to cards that informed people that it had not been possible to deliver an item of post. As such, the ASA considered the initial impression a consumer was likely to have of the mailing, particularly if they did not see the side with the address panel on it first, was that the communication concerned undelivered mail.
Although once examined the nature of the communication was clear, the ASA considered that this was insufficient to make it obvious that it was marketing material. The advert was therefore in breach of the Code.
The adjudication will act as a warning to advertisers against using ‘clever’ or particularly novel designs to market their products or services seeking to catch the eye of consumers, which may, in fact, be misleading and in breach of the Code. Adverts must be readily and obviously identifiable as marketing communications at all times.
13. Ginger Pop Ltd – 21 September 2016
A press advert taken out by the advertiser in a local newspaper included text which states “Visit our shop and get the tea-towel”, and featured an illustration of a ‘golly’ character holding a pint of ginger beer with text underneath stating “ENGLISH FREEDOM”.
Complaint / Decision
Two complainants, who believed the depiction of the ‘golly’ character to be racist, objected that the advert was offensive and therefore in breach of the Code.
Despite the advertiser’s argument that the golliwog character used in the advert was not racist and represented both a magical being and even that it represented an aspirational role model, the ASA not surprisingly upheld the complaint.
The ASA firstly noted that the advert was a reference to some local controversy around the tea-towel produced by Ginger Pop for display and sale in their shop, but they did not consider that all readers would be aware of that background, or that such awareness would impact on their reaction to the advert.
The ASA commented that the Code required marketers to ensure that adverts do not contain anything which is likely to cause serious or widespread offence, and that particular care must be taken to avoid causing offence on various grounds such as race. The advert featured an image which was clearly recognisable as a golly character, which the ASA considered would likely be viewed by many people as representing negative racial stereotypes – the prominent inclusion of the image in a press advert was therefore likely to cause serious or widespread offence. Moreover, the ASA commented that the inclusion of the words “ENGLISH FREEDOM” in the advert was likely to further contribute to that offence, because in combination with the image it could be read as a negative reference to immigration or race. The ASA concluded that the advert was likely to cause serious or widespread offence.
This adjudication attracted a deal of media attention, which was not surprisingly highly critical of the advertiser. Areas such as race or gender are often the subject of complaint to the ASA. However, the ASA can be quite robust when dealing with complaints as to causing offence in advertising, even where there is a lot of adverse publicity. Nevertheless, this advert is one of those examples where the advertiser clearly went too far.
14. Cosmo Gaming Company Ltd t/a NetBet – 28 September 2016
A television advert for NetBet online casino featured a number of people doing everyday activities (such as walking along the street) or using the advertiser’s mobile app. They were seen holding shopping bags and money, sitting in hot tubs holding pairs of dice, walking towards a helicopter, driving a convertible car or getting on a yacht. The scenes described were prefaced by an image of a slot machine displaying the numbers ‘777’ and interspersed with text stating ‘JACKPOT’ and an image of an airplane.
Complaint / Decision
A viewer challenged whether the advert glamorised gambling by suggesting that it could considerably enhance the standard of living of those who gambled.
The complaint was upheld by the ASA, despite NetBet’s argument that at no point during the advert were the characters shown to gain enhanced personal qualities and that there has always been a certain aura of glamour associated with the gambling industry.
The ASA acknowledged that many of the activities being undertaken by the characters in the advert represented things that winners would feasibly be able to do if they won a sizeable amount of money on NetBet’s website. However, this was presented in a way which suggested a distinct contrast with the character’s lives beforehand, implying that their lives had changed as a result of their win (particularly in relation to the use of an airplane or yacht). The ASA considered that the scenes depicted financial security as a result of gambling success as it implied that the characters now had sufficient funds to enjoy luxuries of the nature shown in the advert.
Moreover, the ASA noted that the advert depicted the characters as being happier after winning money. The ASA made it clear that advertisers and broadcasters need to take care to ensure that in portraying a scene such as this, gambling adverts do not imply a change in the self-image of individuals. In particular, the man seen sitting in the hot tub displayed a level of self-assurance that had not previously been evident, implying that this positive change in attitude was due to his gambling success. In light of these factors, the ASA concluded that the advert glamorised gambling by suggesting it could considerably improve the living standards of those who used the service, and was therefore irresponsible in breach of the Code.
This conclusion reached by the ASA should remind advertisers in the betting industry to take care when portraying the ‘positive’ effects of using their gambling services. Advertisers may be permitted to highlight certain purchases that can be secured with betting winnings, but should not stray into territory suggesting that a gambling win can have a positive change on their state of being, their character or to their lives in general. Doing so would link gambling with positive life choices, which the ASA considers to be a breach of the social responsibility sections of the Code.