COMPUTERS AND TELECOMMUNICATIONS

1. Hutchinson 3G UK Ltd t/a Three (3 February 2016)

A banner ad, viewed on a mobile device on 2 July 2015, promoted a Three mobile plan. Text stated "Scratching around for the best deal sucks. Get the Samsung Galaxy S6 at the UK’s lowest price for a limited time only … From £35 a month. No upfront cost”. Footnote text stated “UK’s lowest price claim based on a price comparison of purchasing a Samsung Galaxy S6 on Three’s 1GB, unlimited texts and minutes to the nearest equivalent plans of O2, EE, Vodafone, Virgin Media, Tesco Mobile and Carphone Warehouse as of 04/06/2015”.

Complaint / Decision  

The complaint was as to whether the claim “UK’s lowest price” was misleading.

The ASA upheld the complaint.

Three stated that the claim had been checked against all of their main competitors, namely, O2, EE, Vodafone, Tesco Mobile, Virgin Media (via their direct sales channels), and also with Carphone Warehouse. They provided market share data from an independent party which they believed demonstrated that the competitors selected constituted over 95% of the handset market. They considered that the remainder of the market was so fragmented that it was not practical to check the pricing of all small independent retailers.  

Three explained that they checked the market regularly to ensure that none of their competitors were selling a comparable plan more cheaply and provided a document showing the selected competitors’ pricing for the plan on 4 June, which showed that Three was cheapest for comparable plans. They also submitted evidence, sourced from a third-party consultancy, dated 4 July, which showed that on that date, Three was the lowest price network for a 1 GB ‘all you can eat’ minutes and ‘all you can eat’ texts plan.

The ASA noted that the complainant reported seeing a cheaper equivalent deal from both the Carphone Warehouse and another third-party seller at the time she viewed the ad. The ASA considered that consumers would understand the “UK’s lowest price” claim to mean that the phone and plan could not be purchased from any other retailer across the UK for less than the quoted price, and that the claim was accurate at the time they viewed the ad. The footnote text relied upon by Three was unlinked, lacked prominence and was not considered sufficient to counteract the strong overall impression given by the “UK’s lowest price” claim. The ASA concluded that proper substantiation should include comparative sales data covering all mobile retailers across the UK. In the absence of that data, the ASA concluded that the claim was misleading.

The ASA always reviews claims such as “lowest price” claims very strictly and care must always be taken to ensure that this sort of claim is totally accurate, for the duration of the ad, and to ensure that supporting data adequately covers the relevant market. In this respect it is important to consider the impact of any claim and what the consumer is likely to understand. Any footnote text being relied up must also be adequately highlighted and should always qualify rather than contradict the headline claim. As the telecoms market is highly competitive, particularly on price, it should be anticipated that complaints such as this are likely to be made. 

2. Plusnet plc (10 February 2016)

An online video for Plusnet plc, seen on Plusnet's YouTube page on 13 August 2015, referred to the features of the service they provided to customers, including satisfaction levels with customer service compared with other providers.

Complaint / Decision

A complainant considered that the basis of the comparison was flawed and challenged whether the claim "That's why they [Plusnet] have more satisfied customers than Sky, Virgin and TalkTalk" was misleading and could be substantiated.

The ASA did not uphold the complaint.

Plusnet explained that the claim related to the results of a monthly survey comprising 4,500 interviews of adults in Great Britain by a large market research provider. The survey covered attitudes to services supplied by a range of communication providers and asked respondents about their overall level of satisfaction with their provider as well as satisfaction with contact and value for money. Plusnet believed that an average customer, when asked about their satisfaction level, would take into account the product provided, the price and customer service, and that the most relevant question they could be asked related to their overall satisfaction with the brand. Plusnet noted that the survey had placed them ahead of their main competitors for every month between August 2014 and August 2015.

The ASA noted that the data provided by Plusnet included comparisons in which all the customers surveyed were broadband customers and in which all had had reason to contact their provider regarding their broadband service. For broadband customers who had had reason to contact their provider, the survey period went back to April 2014 (January 2014 for all broadband customers). For each month, in each survey, Plusnet had been shown to have had a higher percentage of customers who were very or extremely satisfied than the other providers listed in the ad. Therefore the ASA considered that Plusnet had supplied adequate evidence to back up the claim.  

This adjudication shows that where a comparative claim is made in an ad the ASA will not uphold a complaint against such claims if the advertiser can provide sufficient evidence to support it. In this instance the survey provided by Plusnet covered 12 months and in each month Plusnet was shown to have a higher percentage of satisfied customers that the competitors listed in the ad. As such the claim was clearly substantiated.

3. Virgin Media Ltd (10 February 2016)

TV, website and press ad for Virgin Media’s broadband service.

  1. The TV ad stated “Get the UK's best widely available broadband for streaming”. The ad featured Usain Bolt who picked up a tablet device. The ad also featured several anthropomorphic characters using the tablet device to watch a video. Another character was seen using a lap top and the ad then showed Usain Bolt watching an internet enabled TV.
  2. The website stated “… This means that Virgin Media’s up to 152Mb service is the best for streaming, when compared to BT, Plusnet and Sky”. The website featured a table that compared Virgin Media’s up to 152 Mb service with other providers. The table included data under the headings “Download speed (Mb) 8-10pm weekday…Latency (in milliseconds) 8-10 weekday…Packet loss (%) 8-10pm weekday”. 
  3. The press ad stated “Get the UK's best widely available broadband for streaming … Faster wireless hub than Sky and BT”.

Complaint / Decision  

The complaint was on the basis that the following claims were misleading and could not be substantiated:

  1. “the UK’s best widely available broadband for streaming” in ad (a);
  2. “Virgin Media’s up to 152Mb service is the best for streaming, when compared to BT, Plusnet and Sky” in ad (b); and
  3. “Faster wireless hub than Sky and BT” in ad (c).

The ASA upheld all three complaints.

Virgin Media Ltd relied on on-screen text in ad (a) which referred to Ofcom 2014 and Farncombe tests 2014, particularly on low packet loss and latency issues. This also included a link to the substantiation on the website and was shown at the same time as the voiceover making the claim. Ad (b) also clearly set out the relevant metrics used by Virgin Media.

Virgin Media said that the Ofcom report supported that their 152 Mb service recorded the highest average download speed compared to the other ISP packages contained in that report and also showed that their product had low levels of latency and low packet loss.

Clearcast also provided screen shots of Ofcom’s testing which they considered had supported Virgin Media’s claims in ad (a).

Virgin Media said the claim in ad (c) was based on independent research which benchmarked their Super Hub against competitor hubs. They said they had made a comparative claim but had not claimed that a particular connection speed could be achieved by a consumer in their particular home set up or on a particular device. They said there were a limited number of devices currently available that could reach top speeds and they had selected one such device as it was considered the best performing standard Wi-Fi device on the market. They said they tested that device in multiple in-home locations and across short, medium and long ranges to give a comprehensive view of its performance across the Wi-Fi spectrum, and they believed the tests were capable of providing consumers with enough information to understand the claim.  

Complaint 1 & 2

The ASA understood that many consumers would use a wireless connection for online streaming, and therefore considered that they were likely to believe the reference to ‘broadband’ referred to the internet connection from the telephone network to an internet enabled device, including when the device was connected to the router via Wi-Fi. Furthermore, they considered the ad reinforced the impression that the claims included Wi-Fi connections.

The ASA noted that although the Ofcom data relied on by Virgin Media described its 152 Mb service as better over 24-hour and peak periods than other packages, comparisons with certain other provider packages were not listed. Furthermore, the Ofcom report stated that in terms of packet loss over 24 hours, rather than the peak times stated in ad (b), there were significant differences for various packages, several of which, including key competitors of Virgin, were “better than…Virgin Media 152” and peak-time packet loss showed that most packages had no differences. Therefore the ASA considered that Virgin Media had omitted additional information relevant to their service.

As the Ofcom reports were applicable to fixed-line broadband performance only the ASA did not consider they were relevant to substantiate claims for wireless (Wi-Fi) capabilities and instead reviewed the third party testing. The ASA noted that they were concerned that the tests used only one operating system, and one make and model of computer, which they considered was not representative of the range of devices and software that might be utilised by consumers. They considered that many consumers would not be using the optimised device or software used during the third-party testing and therefore an individual consumer’s experience may not have reflected the outcome of Virgin Media’s own results. Furthermore, the ASA understood that the testing did not take into account performance when multiple devices were being used at the same time which was likely to have a negative impact on streaming. Therefore the ASA concluded the claims were misleading and had not been substantiated.  

Complaint 3

The ASA considered the claim in ad (c), that related specifically to the speed of their hub in relation to wireless broadband streaming, and which Virgin Media considered was supported by their third-party testing. Again, as highlighted above, the ASA did not consider the testing adequate to support the claim, especially in relation to their comparison with the competitor services due to the limited device and operating systems used and the likelihood that multiple devices were commonly used within a household. As such, the ASA concluded the ad was misleading.

Whilst Virgin Media provided third-party reports to seek to support their claims, the ASA concluded that these tests did not take into account typical consumer use. Therefore when carrying out testing to substantiate claims it is important that advertisers carefully consider whether such test accurately reflect the typical consumer experience and do not set up tests which intentionally support the claims.

HOUSEHOLD

4. Acdoco Ltd t/a Dr Beckmann (3 February 2016)

A TV ad for Dr Beckmann's "Service-It Deep Clean", a washing machine cleaner, seen on 29 September 2015, featured the on-screen text "Helps kill up to 99.9% of bacteria including MRSA".

Complaint / Decision

The complainant challenged whether the efficacy claim in relation to MRSA was misleading and could be substantiated.

The ASA did not uphold the complaint.

Clearcast responded on the advertiser's behalf and referred the ASA to advice from an independent consultant on Acdoco's substantiation. The consultant had explained that, on the basis of the product’s ingredients and the in vitro testing that had been carried out, the evidence showed it would consistently eradicate almost all of the bacteria.

The expert’s report noted that testing had been carried out under the relevant industry standard and that the testing reported at least a five decimal log reduction in the viable bacterial counts after exposure to the product and therefore, considered it substantiated the claim "Helps kill up to 99.9% of bacteria including MRSA". On the basis of the consultant’s advice and the evidence provided, Clearcast had been happy to clear the ad for broadcast.

The ASA considered the context in which the product should be used was clearly set out in the ad. The product was intended to be used in washing machines to combat bacteria that might remain in the machine following a low temperature clothes wash. They considered most viewers were likely to understand the product was specific to being used within a domestic environment, rather than a product to help with infection control.

The ASA noted the product had been tested in accordance with a recognised industry standard and considered that was appropriate and relevant to substantiating the efficacy claim. The testing showed that the product was effective at removing MRSA bacteria and therefore, the ASA concluded the claim was not misleading and had been substantiated.

In this adjudication, the fact that the ASA considered that the context that the product should be used in had been made clear in the ad and that the product had been tested in accordance with a recognised industry standard, was key.

5. Challs International Ltd (17 February 2016)

A website, www.challs.com, for the 'Buster' range of drain cleaners, seen in August 2015, featured a page headed "BATHROOM PLUGHOLE UNBLOCKER" that stated "No.1 for Bathroom Plughole Blockages" and featured a picture of a Buster product for the bathroom. A further page, headed "KITCHEN PLUGHOLE UNBLOCKER" stated "No.1 for Kitchen Blockages" and featured an image of the kitchen Buster product.  

Complaint / Decision

SC Johnson Ltd, the manufacturer of a leading competitive product, challenged whether the claims that the products were “No 1” were misleading and could be substantiated.

The ASA upheld the complaint.  

Challs stated that the claim "No 1" did not make a comparison against any other competitor and that it had been intended as puffery. They sought to rely on the basis that the claims in the ad were specific, in that Buster Bathroom Unblocker was No 1 for bathroom blockages and Buster Kitchen Unblocker was No 1 for kitchen blockages and that bathroom blockages were different to kitchen blockages. Challs stated that they were the No 1 selling specialist products on the market, whereas the SC Johnson product was marketed for both types of blockage.

Challs provided a summary of Kantar consumer purchasing data for Plughole and Drain products in the UK. They stated that it showed that the market share ranking changed by period; that on occasions Buster Bathroom Unblocker had outsold the SC Johnson product; and that the Buster brand was the fastest growing in the category.

The ASA considered that consumers would understand the "No 1" claim for each product as a statement that the product was the best-selling plughole and domestic drain cleaning product that could deal with the specified type of blockage, outselling competitors’ products. They acknowledged that some products were marketed as clearing both types of blockage problem, and that Challs would therefore need to demonstrate that each Buster product separately outsold both type-specific products and the generic.

The ASA understood that SC Johnson believed that their Mr Muscle Sink & Plughole Gel 500 ml outsold both Buster products, as Nielsen till data showed this to be the case. The Kantar data provided by Challs showed that on some occasions Buster Bathroom Plughole Unblocker outsold Mr Muscle Sink & Plughole Gel 500 ml and the other competitor products named on the report. However, they noted that the 1000 ml version of Mr Muscle Sink & Plughole Gel had not been included in the advertiser's comparisons. When the 500ml and 1000ml Mr Muscle Sink & Plughole Gel units were compared with Buster Bathroom Plughole Unblocker, the Kantar data showed that they outsold the Buster product on each occasion. When compared with Buster Kitchen Plughole Unblocker, they also outsold that product. Because the data provided by Challs did not demonstrate that their products outsold all others in their category, the ASA considered that the claims "No.1 for Bathroom Plughole Blockages" and "No.1 for Kitchen Blockages" had not been substantiated and concluded that the ad breached the Code.

The ASA always considers “No 1” claims very carefully. In this respect, the ASA will look at what consumers will understand such as claim as meaning. This will generally be that the relevant product is the best-selling product of its type on the market, including, in this sort of example, any multi-purpose products which overlap the area of usage. Unless clear evidence can be provided to substantiate any specific claim, it is likely that the ASA will uphold any complaint against such claims.

FOOD AND DRINK

6. EAT Ltd (3 February 2016)

Three ads for EAT sourdough toasties:

  1. The EAT website www.eat.co.uk, seen in November 2015, included a page which gave information about their “New Sourdough Toasties” and how the bread was made.
  2. A video from EAT on YouTube seen in November 2015 included descriptions of the products as “New Sourdough Toasties”.
  3. A regional magazine ad seen in September 2015 featured an image of a 4-cheese toastie and stated “The ultimate 4 cheese sourdough toastie”.

Complaint / Decision

The Real Bread Campaign (Sustain) challenged whether the use of the term “sourdough” was misleading, as they believed the bread might not be made using only traditional sourdough ingredients and method.

The ASA did not uphold the complaint.

EAT Ltd considered the references in the ads to “sourdough” were acceptable as there was no fixed definition of sourdough bread. Their bread did use a live bacterial starter culture, which they considered justified the use of the term “sourdough”, both in terms of the ingredients and the way the bread tasted, looked and felt. The product ingredients included sourdough and a small amount of commercial yeast. The manufacturing process included using a mixer.

The ASA considered the likely consumer understanding of the term “sourdough”, and considered they would understand that the bread contained sufficient amounts of sourdough to distinguish the bread from non-sourdough products. In this case, the ASA was satisfied that the bread contained a significant percentage of sourdough as an ingredient and, although it also contained a small amount of commercial yeast, they considered that was not uncommon in commercially produced sourdough bread. They did not consider that would affect the average consumer’s perception of the bread as sourdough. They also did not consider that consumers would infer from the term that only traditional manufacturing methods, such as kneading entirely by hand, were used. They therefore concluded that the use of the term “sourdough” was not misleading.

The use of marketing terms in relation to food and drink is a hot topic at the moment as consumers become more discerning and increasingly engage with what is in their food, who makes it and where it comes from. Food and drink providers who use terms such as ‘artisanal’ or ‘craft’ to describe their products have come under increased pressure to substantiate such claims. In the US for example, the whisky produced, Maker’s Mark, was subject to a class action alleging that the brand’s claim to be “handmade” was false and misleading, whilst Blue Moon was subject to a lawsuit over its claim to be a ‘craft beer’ when in fact it is a product of MillerCoors, the second-largest brewing conglomerate in the United States. With the increased popularity of ‘artisanal’ or ‘craft’ products, including beers, in the UK such claims are likely to be placed under the spotlight in the coming years. However in this instance the ASA clearly felt that given the fact that there was no fixed definition of sourdough and the fact that the product contained sufficient levels of sourdough, the product’s description was not misleading to consumers. 

7. Iceland Foods Ltd (10 February 2016)

Two circulars for branches of Iceland Food Warehouse, delivered to homes in the week beginning 19 October 2015 and to a primary school on 23 November 2015, advertised a money-off voucher on the front. The back of the circulars advertised an introductory offer on the “FAT bastard” brand of wine. Text stated “OUTRAGEOUS NAME OUTRAGEOUSLY GOOD WINE” next to the brand name.

Complaint / Decision

Four complainants challenged whether:

  1. the language used in the ad was likely to cause serious or widespread offence; and
  2. the ad was appropriately targeted, because it might be seen by young children.

The ASA did not uphold the first complaint but did uphold the second complaint.

  1. Iceland Foods acknowledged that some people might find the ad distasteful but did not believe it would cause widespread or serious offence. They also stated that it was a branded product they had no control over the brand name. They felt that was demonstrated by the small number of complaints received by the ASA when the ad had been delivered to over 175,000 households, and the fact their supplier had been distributing FAT Bastard wines for ten years, but the ASA had not previously received complaints.
  2. Iceland Foods appreciated that door-drop circulars could be read with other post, but the ads were targeted at the adults responsible for food shopping and not children. They said there was nothing particular about the design and arrangement which would attract a child’s attention and nothing to imply that the ad was aimed at children. However, they acknowledged that children might see the circular, particularly the outer pages, and therefore would ensure that ads for the product would be placed on the inner pages of such circulars in future. 

With regard to the circular which was distributed to a primary school, Iceland Foods said their agency had given strict instructions to the company that distributed the circulars that they should only be delivered to residential addresses. The circular therefore should not have been delivered to the school, and the distribution company had taken responsibility for that error and taken steps to ensure it did not happen again.

  1. Whist the ASA noted that advertisers should take care when using swear words in marketing they noted that the circular was distributed to households without any additional targeting criteria. However, they considered that the term “FAT bastard”, while likely to be distasteful to some recipients, was unlikely to cause serious or widespread offence. They therefore concluded the ad did not breach the Code in that regard.
  2. The ASA noted that the ad had been delivered to the primary school in error, and in any case considered that it was unlikely that children at the school would have seen it. However they considered that a circular, distributed to homes in an untargeted manner, was likely to be seen by young children, and noted that the references to “FAT bastard” appeared on the outside where they were immediately visible. The ASA considered that the references to “FAT bastard” were unsuitable to be seen by young children and should not have featured on the outside covers of the circulars. Consequently they concluded the ad had been irresponsibly targeted.

This adjudication illustrates that the ASA will not necessarily uphold a complaint against an ad simply because it is distasteful if it is not likely to cause widespread offence. The ASA have previously taken a fairly robust view in relation to the use of swear words in advertising and marketing. However such ads need to carefully consider how its intended audience is targeted and should be able to demonstrate that the requisite amount of care and planning has occurred to ensure the ad is properly targeted and that impressionable demographics, such as children, are not exposed to it. In this instance, an easy approach would have been to place the ad for the introductory offer on an inside page, so the ASA’s decision is not surprising.

RETAIL

8. Lidl UK GmbH (10 February 2016) 

A TV ad and a poster, for Lidl:

  1. The TV ad, seen between 2 and 5 October 2015, featured members of the public being offered a taste test of Lidl’s own brand vanilla ice cream compared to branded vanilla ice cream. The final shot showed the two tubs of ice cream side by side. Text next to the branded tub stated “£2” in large grey font, with smaller grey font directly underneath which stated “22p/100ml”. Text next to the Lidl tub stated “£1.99” in large grey font, with smaller grey font which stated “20p/100ml” directly underneath. Above the Lidl tub a pink roundel featured the text “SAVE 10%” in large white font, with smaller white font underneath which stated “PER 100ML”. A voice-over stated “Save 10% when you shop a Lidl smarter.”
  2. The poster ad, seen on 12 October 2015, featured the branded ice cream tub slightly behind the Lidl ice cream tub. Text in a pink roundel stated “SAVE 10%” in large white font, with smaller white font which stated “per 100ml by switching to this Lidl product”. Text next to the branded tub stated “£2” in large grey font, with smaller grey font directly underneath which stated “900ml 22.2p/100ml”. Text next to the Lidl tub stated “£1.99” in large grey font, with smaller grey font directly underneath which stated “1L 19.9p/100ml”. 

Complaint / Decision

Ten complainants challenged whether the ads misleadingly implied that the tub of Lidl ice cream was 10% cheaper than the tub of branded ice cream.

The ASA did not uphold the complaint.

Lidl highlighted that both ads featured the pink roundel with text which stated “SAVE 10% per 100ml” and said the ads therefore made it clear that the saving was per 100 ml. They said they had been very careful not to make a price comparison of the two tub prices as they were aware that they were different sizes; they believed it would be misleading to compare the price of their one-litre ice cream tub with the 900-ml branded tub. Lidl said the ads contained no suggestion or implication that the basis of the comparison was anything other than the price per 100 ml. They provided details of their calculation of the savings, which amounted to a 10.36% saving per 100 ml.

Clearcast, responding in relation to the TV ad, said Lidl had sent them information when they were scripting the ad and they agreed that the saving claim of 10% per 100ml was accurate.

The ASA noted that both ads included information which stated that the 10% savings claim was based on a comparison of the price per 100 ml of the two products. While the text which stated “per 100ml” was in smaller font than the claim “SAVE 10%”, it was placed alongside that claim, within the pink roundel. Additionally, the price per 100 ml of the products was stated underneath the price per tub, which the ASA considered highlighted that the comparison was being made on the basis of the price per 100 ml rather than the price per tub. Consequently the ASA concluded that the ads made the basis of the comparison clear to consumers and were therefore unlikely to mislead.

This ruling serves to remind advertisers that where information relating to a claim is clearly presented within the ad and can be substantiated, the ASA will not uphold a complaint as misleading. Any wording by way of clarification, must always genuinely clarify rather than contradict the headline claim, and must be clearly set out. 

9. Designer Sofas 4u Ltd (17 February 2016)

A website, www.designersofas4u.co.uk, seen on 2 October 2015, stated “50% OFF Chesterfield 1857 Leather Sofa - UK Manufactured - RRP £1276.17 [crossed through] £638.09 Save £638.08 - Valid until 04/10/2015”.

Complaint / Decision

A complainant, who believed the sale end-date had been extended and that the product was not generally sold at the RRP, challenged whether:

  1. the sale end-date was misleading; and
  2. the RRP was misleading and could be substantiated.

The ASA upheld both complaints.

  1. Designer Sofas 4u Ltd said the decision to advertise the item at an offer price was taken on a weekly basis, depending on them receiving preferential prices from their supplier. They said their website informed customers that, if they registered interest on a particular product, Designer Sofas 4u would honour the sale price they had seen advertised for a further 7 to 21 days.
  2. Designer Sofas 4u supplied screenshot examples from other retailers' websites selling Chesterfield sofas of a similar size being sold by other retailers.
  1. Whilst the ASA noted that Designer Sofas 4u stated that the price change was made on a weekly basis because of the price being charged to them by their supplier, they considered consumers were likely to expect that the item would be available at the offer price until 4 October, after which it would revert to the higher price. The ASA therefore considered that consumers might have felt pressured into rushing to make a purchase to take advantage of the offer when they need not have done so. Although the ASA noted that Designer Sofas 4u said they would honour a sale price for 7 to 21 days, the suggestion that customers needed to act by the "valid until" date was more prominent and would be understood more readily than the message that a sale price would be honoured. The ASA therefore considered that consumers might have felt pressured into rushing to make a purchase to take advantage of the offer when they need not have done so. As the ad implied that the discounted price was time limited and would increase on a particular date when that was not the case, the ASA concluded that the ad was misleading.
  2. The ASA considered consumers would understand references to RRP to mean that the product was generally sold at the stated price by other retailers, and that they could make savings of the stated amount by shopping at that particular retailer. Although Designer Sofas 4u maintained that they had previously sold the item at the RRP, they provided no evidence of this. While Designer Sofas 4u had supplied a number of examples of Chesterfield sofas of a similar size being offered for sale by other retailers, there was a large variation in the prices. The ASA considered that this suggested there were likely to be differences in specifications and that those prices were not a sufficient basis on which Designer Sofas 4u could base a specific RRP claim. As such the ASA considered Designer Sofas 4u had not substantiated that the item was generally sold at the RRP and concluded that the ad was misleading.

Furniture ads, which regularly contain pricing offers, are frequently the subject of complaints. Between 2012 and 2014, the CMA conducted an investigation into the use of misleading reference pricing by certain furniture and carpet businesses. Following the investigation, the retailers remaining under investigation confirmed a commitment to the use of genuine reference prices and, without any admission of liability, have made changes to their reference pricing practices. On the basis of the commitments received the OFT has closed its investigations. The ASA generally tends to be rather suspicious of RRPs in particular. However, where saving claims are made against RRP prices, advertisers should ensure that these prices are genuinely representative of the price such products are generally sold at. Furthermore advertisers should not suggest a discounted price is time limited and will increase after a certain period if this is not the case.

LEISURE

10. WHG (International) Ltd (3 February 2016)

Two TV ads for William Hill:  

  1. The first ad featured various CGI effects and short, fast changing clips of footballers playing on a pitch with high paced music. The beginning of the ad showed a radar screen with seven red dots and one glowing yellow ball. Another scene showed a footballer flying into mid-air with smoke being emitted from his feet, and another was shown skidding on his knees on grass while leaving a trail of fire behind him. The ad also featured games, including an electronic pinball machine and table football.
  2. The second ad featured various CGI effects as well as short, fast changing clips of footballers playing on a pitch with high paced music. The beginning of the ad showed a shot of a mobile phone exploding and then a scene featuring a referee blowing into a whistle with animated air coming out of his mouth. Following these were scenes of an illuminated ball running through a pin ball machine, a footballer was shown in a red radar screen and two other footballers were shown about to collide into one another, followed by an explosion. Another footballer was shown jumping in the air with his number alight. The ad also featured various arcade style games, including an electronic pinball machine and a football themed shooting game.

Complaint / Decision

The complainant challenged whether the ads were likely to be of particular appeal to children and were therefore irresponsible. 

The ASA did not uphold the complaint.

WHG explained that none of the graphics represented modern-day youth culture and that the use of retro styled arcade games and comic graphics in the ad was instead targeted at 25 to 44 year-old men. Although the use of arcade style games might have been reflective of youth culture 20 years ago, that was not the case today.

Clearcast considered that the use of bright colours and explosive effects created a “pop art” look for the ad, rather than anything that could be particularly associated with young people. The also believed that pinball was a fairly old game popular in the 1970s and that arcade games in general were seen as outdated by today’s youth. Clearcast also stated table football was another game WHG’s target consumers might have played in their youth and might play now in a nostalgic way. Clearcast had taken steps to ensure that no players in the ads resembled current international or Premiership players, whose images they considered were likely to appeal to young people.

The ASA considered that the scenes from both ads were likely to appeal to viewers aged under and over 18. However they accepted that the games included in the ads would be primarily associated with the youth culture of previous generations. Furthermore, the ASA agreed that the images used in the ads, particularly in ad (b), had a “pop-art” effect, which again would be more familiar and appealing to viewers over 18. As such the ASA considered the overall content of the ads was likely to appeal more strongly to viewers over 18 and, on that basis, concluded that they did not breach the Code.

As the amount of gambling advertising has increased, so has the number of complaints to the ASA. Moreover, as technology evolves, consumers are accessing gambling products in new and different ways such as online and via mobile devices. As such gambling remains a hot topic for the ASA. However this complaint demonstrates that where advertisers take steps to ensure that gambling ads are responsibly targeted, the ASA will not uphold complaints against such ads.

BUSINESS

11. Stanley Black & Decker UK Ltd (3 February 2016)

Four ads for the “ORA Technology” range of cordless vacuum cleaners, on www.blackanddecker.co.uk, viewed on 30 March 2015:

  1. The website home page featured a scrolling banner which included the claim “Picks up first time again and again and again”.
  2. A web page describing the ORA Technology range included the claim “Picks up first time again and again and again*”. Text at the bottom of the web page stated “*visible debris on even hard floor surfaces”. 
  3. A web page for the “2 in 1 Stick Vac with ORA technology” stated “Powerful airflow and motorised beater bar provides one pass pick up performance, even with heavier debris”. 
  4. A web page for the “Hand Vac + Floor Extension with ORA Technology” also stated “Powerful airflow and motorised beater bar provides one pass pick up performance, even with heavier debris”.

Complaint / Decision

Dyson Ltd challenged whether the following claims were misleading and could be substantiated:  

  1. “Picks up first time again and again and again” in ad (a); and 
  2. “Powerful airflow and motorised beater bar provides one pass pick up performance, even with heavier debris” in ads (c) and (d). 
  3. They also challenged whether the claim “Picks up first time again and again and again*” in ad (b) was contradicted by the qualifying text “*visible debris on even hard floor surfaces”, and whether the qualifying text was presented clearly.

The ASA upheld all three complaints

  1. Black & Decker said they carried out two different types of in-house testing of the two ORA Technology vacuum cleaner products, both of which were battery-powered. One used the relevant International Electrotechnical Commission (‘the IEC Standard’) and the other they devised themselves to demonstrate the performance of the vacuum cleaners using various types of common household debris of varying size and weight. Black & Decker said the qualification wording was clearly referenced and therefore clarified the headline claim, which was itself only used with imagery or content showing the vacuum cleaners being used on common hard floor surface types.
  2. Black & Decker said the claim was incorrect and had been amended to state “Powerful airflow and motorised beater bar for optimized pick up performance, even with heavier debris”.
  3. Black & Decker said they considered the claim “Picks up first time again and again and again*” did not communicate to consumers that the vacuum cleaners would pick up 100% of debris first time, every time, on all floor surfaces. In this respect they again relied on the qualification wording which they considered clearly explained what the claim represented and, in terms of positioning and size of font, was clearly set out for consumers.
  1. The ASA considered that due to its presentation, consumers would understand the claim in ad (a) as a standalone, unqualified claim that the advertised vacuum cleaners would pick up all types of debris on the first pass of the cleaner, from all common floor surfaces, the vast majority of the time, in normal domestic use (and that the performance was maintained as the dirt receptacle filled). The CAP Guidance on “Vacuum cleaner marketing” made clear that appropriate testing to support all objective claims regarding vacuum cleaner pick-up performance followed, or were of an equivalent standard to, the current relevant IEC Standard.  

The ASA reviewed the test data submitted by Black and Decker and took expert advice. In particular, they noted that Black and Decker used a version of the IEC Standard from 2008, rather than the updated 2013 version. The ASA considered that the methodology of the most up-to-date IEB Standard should have been used. The ASA also noted that Black and Decker had not used the IEC Standard to test the performance of the vacuum on carpet, or on hard floor with crevices. They had also not tested the performance of the vacuum cleaners when the dirt receptacles were ‘loaded’. Consequently the ASA concluded the IEC Standard test results presented were not adequate to support the claim in the ad as it would be interpreted by consumers.

Although their own tests followed some aspects of the IEC Standard, the vacuum cleaners’ dirt receptacles were not cleaned before each test run as required by the IEC Standard and only one test run was carried out, as opposed to the three required by the IEC Standard. The ASA therefore considered that these tests did not reproduce the same level of statistical significance as the IEC Standard and therefore were not adequate substantiation for advertising claims about pick-up performance. As such the claim “Picks up first time again and again and again” had not been substantiated and was therefore misleading.

  1. For the same reasons stated above, the ASA concluded that the original claim had not been substantiated and was therefore misleading. Furthermore the substantiation provided was not adequate even to support the amended claim.
  2. The ASA considered that as the qualification wording was not presented to consumers sufficiently clearly, both in terms of font size and position at the bottom of the web page. Moreover, they considered that the qualification contradicted rather than clarified the headline claim, which clearly implied that the vacuum cleaners picked up all types of debris first time, from all types of floor surface, as the receptacle filled, as the qualification referred only to even hard floor surfaces. On this basis the ASA concluded ad (b) was in breach of the Code.

There are two important learnings for advertisers to take out of this adjudication. Firstly where CAP has released specific guidance, such as the CAP Guidance on “Vacuum cleaner marketing”, advertisers should ensure they consult and refer to this when creating their ads. The ASA pointed out that such guidance was available in this instance and were clearly unimpressed by the fact that despite this Black and Decker did not implement an equivalent standard of testing in the SBD test to the current IEC Standard. Secondly marketers should ensure that any qualifications are clearly presented and clarify rather than contradict the claims they are intended to clarify. 

12. Hanoi Bike Shop (10 February 2016)

Two posters for a noodle bar seen on a train on 19 October and at a train station on 13 November featured text that stated, “GET YOUR NOODLE ON! FIRST TUESDAY OF EVERY MONTH FOUR DELICIOUS NOODLE BASED DISHES …”. The posters also showed two slogans with text that stated “PHAT PHUC” … THE HANOI BIKE SHOP”. 

Complaint / Decision

The ASA received complaints from two members of the public:

  1. One complainant objected that the ad was offensive because it featured a slogan, which when spoken sounded like a swearword; and
  2. One complainant objected that the ad was inappropriate for public display where children could see it because it featured a slogan that sounded like a swearword when spoken.

The ASA did not uphold either complaint.  

Hanoi Bike Shop stated that they were a Vietnamese canteen and that “Phat Phuc” was the name of an event that had been running since March 2015 and was also used for naming some of their noodle dishes. They clarified that “Phat Phuc” in Vietnamese was pronounced “Fet Fook” and meant “Happy Buddha”. 

Primesight believed that the creative was suitable for outdoor display on the basis that when pronounced correctly, “Phuc” did not sound like a swear word.

  1. The ASA understood that the word “happy” in Vietnamese was correctly spelt as “Phuc” and although it was pronounced as “Fook”, they considered that it sounded similar to the expletive.

However, the ASA noted that the Hanoi Bike Shop sold Far Eastern cuisine, which both posters had made sufficiently clear. In the context of the posters, they considered that viewers who might have been offended by bad language were likely to recognise that “Phuc” was from a reference to Southeast Asian language, was different from the expletive and would not necessarily be pronounced in the same way. The ASA therefore, concluded that the posters were unlikely to cause serious or widespread offence.

  1. The ASA considered that younger children, who were unlikely to comprehend that “Phuc” was a Vietnamese word, were also unlikely to read or pronounce it as the expletive. While some older children might have pronounced it as the expletive, given the context of an ad for a Vietnamese restaurant and that the word was taken from the Vietnamese language the ASA did not consider that this made it unsuitable for them to see. They therefore concluded that the posters were not irresponsibly placed where children could see them.

Where ads may have alternative meanings or interpretations due to language or cultural variation it is important how these are portrayed in the context of the ad. As the word “Phuc” was correctly used in the context of a Vietnamese restaurant within the ad the ASA held that there was no breach of the Code. However if the word had been used out of context in a double entendre in order to draw attention to its similarity with the English word expletive, the ASA may have taken a different approach. The context as to how such words are used is always key, sometimes looking at the targeting of any ads. The ASA can take a relatively robust approach to this sort of complaint, as was the case with the adjudication in February 2015 for booking.com.

HEALTH AND BEAUTY

13. Genr8online (24 February 2016)

An ad on eBay for Genr8online, a food supplements retailer featured text that stated, “GENR8 ... BTV is 55 [sic] more efficient at storing and restoring glycogen over Vitargo BTV will enable a higher workout rate compared to Vitargo (35 [sic]) BTV has fast gastric emptying and fast acting recovery BTV Produces a high sugar-free insulin spike BTV produces a superior anti-catabolic trigger for protein use BTV will assist lean muscle formation by cutting fat BTV will reduce muscle fatigue after loading by 44 [sic]”. 

Complaint / Decision

The University of Nottingham challenged the health claims made in the ad, which were required to be authorised on the EU Register of nutrition and health claims made on foods.

Genr8online believed that they were only making comparative claims with a competing product and that the ad did not feature any health claims. They stated the claims were based on the results of two peer reviewed studies of the product, which was a carnitine and carbohydrate supplement.

The ASA considered in the context of the claims for the product's benefits for improved athletic performance, the claims in the ad implied a relationship between the product and health and were therefore likely to be understood as health claims, which must be authorised on the EU Register. The ASA considered the first two claims were likely to be understood by consumers to be health claims with a comparative element, which were also required to be authorised on the EU Register. As Genr8online had not provided evidence that the health claims were authorised on the EU Register as required the ASA concluded that the ad breached the Code.

This adjudication demonstrates that where health or nutrition related product are being advertised, marketers should be very clear whether claims made in relation to these products feature health or nutrition claims. If they do these claims must be authorised on the EU Register.

FINANCIAL

14. Gocompare.com Ltd (3 February 2016)

TV ad and poster for Gocompare.com:

  1. The TV ad featured a voice-over saying "Tonight, back by popular demand, the man who has enriched the lives of millions" before the character Gio Compario appeared on a stage. Behind him, revolving text stated "40,000 QUOTES A DAY" while small print stated "Average number". Further small print appeared stating "Between '06-'15", followed by more revolving text that read "OVER 40 MILLION CUSTOMERS".
  2. The poster ad stated "£3/4 BILLION SAVED ... Average for customers who bought and saved £137 (Car), £183 (Buildings & Contents) '06 - '15".

Complaint / Decision  

Confused.com challenged whether:

  1. The claim "OVER 40 MILLION CUSTOMERS," which they believed did not accurately reflect the number of individuals who had used the service, was misleading and could be substantiated; and
  2. The claim "£3/4 BILLION SAVED," which they believed was ambiguous as to whether the amount was 'three to four billion' or 'three quarters of a billion', was misleading.

The ASA upheld complaint 1 but did not uphold complaint 2.

  1. Gocompare.com stated that the reference to customers was to the number of distinct and validated accounts of customers who utilised the Gocompare.com service to obtain a quote in the period between November 2006 and March 2015. Customers were only counted once, regardless of the number of quotes they requested or retrieved, and no test quotes or test accounts were included. They said they were aware that a customer could have registered more than one account, so they had applied a series of differentiators to the number of customer accounts so that each unique combination of first name, surname, date of birth and email address was counted as a single customer. They said that they recognised that some customers may have more than one account (with varying email addresses) and had considered using postcode information to differentiate these, but that this had resulted in a larger figure.
  2. Gocompare.com believed that presenting the figure as a fraction made it easier for consumers to grasp rather than using a decimal or percentage. They believed that the presentation they had used was commonplace in retail. They consciously avoided the approach used in scientific publications of fractions, where the whole fraction was represented as a single typographical character with a slanted bar, as this would reduce the size of the figures and negatively affect the legibility of the ad. They also believed that such a claim would be extremely ambiguous and therefore meaningless and that, read in conjunction with the precise savings claims noted in the ad as substantiation for the claim, it would be illogical and inconsistent for consumers to interpret the claim as the considerably more vague "three to four billion".
  1. The ASA noted that 40 million customers over the period of a decade was a very large proportion of UK adults and that steps should have been taken to ensure that this figure was realistic. They considered that it was not unlikely that some customers would have registered more than one account, particularly over the relatively long time period of 2006 to 2015, and that reasonable steps should have been taken to determine whether accounts were duplicates and exclude an estimate of these from the final figure.

Although the ASA acknowledged that data relating to repeat quotes had been excluded and that attempts to remove other duplicate data had been made, Gocompare.com had not established whether the figure used in the ad was likely to be a reasonable estimate of the number of unique customers in light of the size of the number. Therefore the ASA were not satisfied that the claim was based on a robust methodology that adequately took into account the possibility of duplicate accounts and concluded that it had not been substantiated and that ad (a) was therefore misleading.

  1. The ASA considered that using super- and subscript numerals would be unequivocally representative of a fraction, but agreed that the approach used in ad (b) was also a generally recognisable way of presenting a fraction. In the context of the ad they considered that consumers were unlikely to interpret "£3/4 BILLION" as the relatively vague "£3 or £4 billion" and would instead recognise the claim as containing a fraction. Consequently they concluded that the claim was not ambiguously presented and was unlikely to mislead.

This adjudication shows that particularly where specific numerical claims are made by marketers a robust methodology is required to demonstrate clear substantiation. In this instance Gocompare.com had made attempts to consider and substantiate their data and, for example, had taken into account the fact customers could have more than one account, and adjusted their figures accordingly. However despite this the ASA were clearly not satisfied that the claim sufficiently took into account duplicate accounts, illustrating the level of substantiation and accuracy of data required for such claims.