ADJUDICATIONS

INTRODUCTION

A selection of the most interesting ASA adjudications in March is summarised below, highlighting the key issues considered in those adjudications.

Airport expansion in the South East has become a heated issue recently and it is not surprising that it is playing out through advertising and complaints to the ASA. A relevant advertisement was found not to breach the Code this month and it is clear that the ASA will continue to apply a practical approach toward these ads, with a view to the context in which claims are made. The ASA has felt that consumers are not only likely to understand the issues surrounding expansion, but also that claims are the view and opinion of the advertiser, rather than fact, perhaps demonstrating that the greater the publicity surrounding an issue, the more knowledgeable consumers are deemed to be.

This month the ASA has also appointed two new independent Council Members, Suzanne McCarthy and Wesley Henderson, who will replace Ruth Sawtell and Anthony Wilkes. Their diverse experience as Immigration Services Commissioner and Independent Assessor with the Commissioner for Public Appointments for Northern Ireland respectively, will likely give the Council a wider breadth of expertise when assessing ads and making rulings.

FOOD AND DRINK

1. The Drink Box, 25 March 2015 (despite a lack of response by the advertiser, a circular was found not to be in breach of the Code as it did not irresponsibly advertise to under-18s) 

HEALTH AND BEAUTY 

2. A Nelson & Co Ltd t/a rescueremedy.co.uk, 11 March 2015 (a national press ad for Bach Rescue Night including health claims was found to be misleading and unsubstantiated) 

HOLIDAYS AND TRAVEL 

3. Gatwick Airport Ltd, 4 March 2015 (a magazine ad regarding the potential expansion of Gatwick Airport was found not to be misleading) 

RETAIL

4. DSG Retail Ltd t/a Currys/PC World, 4 March 2015 (a TV ad for a television was found to breach the Code as the technological advancement advertised could not be used with most TV content)

5. BVG Airflo Group Ltd t/a Samuel Windsor, 4 March 2015 (a website was found to be in breach of the Code as the ‘original’ price of the product prior to the advertised discount was not reflective of its true price)

6. Halfords Ltd, 4 March 2015 (a website breached the Code as the ‘original’ price of the product was never the regular selling price on the website on which the ad was featured)

7. Halfords Ltd, 25 March 2015 (a TV ad was found not to breach the Code as it did not encourage dangerous behaviour in children) 

HOUSEHOLD 

8. G2S Group Ltd, 11 March 2015 (a website was subject to complaints regarding misleading claims, three of which the ASA upheld and one which it did not)

9. Vax Ltd, 4 March 2015 (in a highly competitive market, a TV and website ad were held to be in breach of the Code as they were found to be misleading) 

MOTORING 

10. Nene Valley Paramotors, 25 March 2015 (claims on the advertiser’s website were found to breach the Code due to lack of substantiation)

11. Isuzu (UK) Ltd, 25 March 2015 (three issues regarding zombie-themed ads for a truck were investigated and two were upheld while one was not)   

FOOD AND DRINK 

1. The Drink Box, 25 March 2015 

A circular advertised an alcohol delivery company.

Complaint/Decision

The complaint questioned whether the ad was irresponsibly targeted and advertised alcohol to under-18s.

The advertiser did not respond to the ASA’s enquiries. As a result the ASA found that they had breached the CAP Code due to unreasonable delay. However it did not uphold the complaint. The CAP Code specifies that an ad is targeted to under-18s if they make up more than 25% of the expected audience.

The ASA found that there was no reason to believe the circular was distributed to an audience that was not representative of the general population, of which less than 25% is under 18 years of age. Therefore, the ASA did not feel that the ad was irresponsibly targeted, and thus the ad did not breach the Code.

This result is unusual as the ASA did not uphold the complaint, despite the lack of response from the advertiser. In many other adjudications the ASA has viewed similar circumstances as demonstrating a lack of substantiation or as evidence to support the complainant and thus determined the ad to be in breach. 

HEALTH AND BEAUTY

2. A Nelson & Co Ltd t/a rescueremedy.co.uk, 11 March 2015 

A national press ad for Bach Rescue Night stated “The RESCUE NIGHT range helps your mind switch off, so you can enjoy a natural night’s sleep”. The top corner of the ad featured a crescent moon and stars on a dark-blue background.

Complaint/Decision

The complainant challenged whether the claims were authorised health claims in the EU Register of Nutrition and Health Claims for Foods (the EU Register). The ASA upheld the complaint.

The advertiser responded to say that the European Food Safety Agency had put on hold its consideration of health claims for botanicals until they considered the assessment criteria for such claims, and that the Agency was considering permitting the use of traditional evidence to support health claims for such products. It explained that it had based the ad on the traditional uses of the ingredients and had not made a health claim related to sleep, but had rather focused on the ability to calm the mind, without mention of sedative effects.

The ASA noted that according to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods, which is reflected in the CAP Code, only health claims which appeared on the EU Register could be made in ads for foods, including food supplements.

The ASA felt that overall, the ad was likely to give viewers the impression that the product could aid sleep, regardless of the lack of specific claims to this effect. In this regard, it considered that the ad made a health claim related to sleep about a food item.

While the ASA did note that ‘on hold’ claims for botanicals could be used in ads, it felt that evidence was not provided that the relevant proposed claims for the ingredients in the advertiser’s product were ‘on hold’, and no ‘on hold’ claims were entered on the EU Register. Further, such claims must be supported by adequate substantiation, which the advertiser did not provide. As a result, the ASA found this ad to be in breach of the Code.

This is not a surprising result, as the ASA takes a strict approach with unauthorised health claims. It is, however, interesting that the ASA concluded the ad was indeed a health claim due to its overall look and feel.

When making health claims advertisers should review the list of authorised claims on the EU Register and ensure that the claim does not exaggerate the health benefit or overstate the certainty of experts’ conclusions over the potential benefit. 

HOLIDAYS AND TRAVEL

3. Gatwick Airport Ltd, 4 March 2015 

A magazine ad stated that Gatwick Airport Ltd “can build a new runway much faster”, and that “Hundreds of thousands fewer people [will be] affected by noise and air pollution”.

Complaint/Decision

The complaints questioned whether these statements were misleading and could be substantiated. However, the ASA did not uphold such complaints.

The advertiser demonstrated that the first claim was based on a comparison of the timescale of the runway expansion of Gatwick Airport, which would be operational by 2025, with that of Heathrow Airport, which would only be operational by 2026. They further explained that the Airport Commission found that there were relatively few delivery risks associated with Gatwick’s timeline, while Heathrow’s was subject to substantial risks which could delay the expansion.

The ASA felt that due to the contentious nature of the issue and recent press attention, consumers would understand the context in which the claims were made and that they represented the views and expectations of the advertiser. It therefore felt that this claim was justified, as the expansion’s completion a full year earlier than that of Heathrow would be seen by consumers to be significantly time saving. As a result, it concluded that this claim was not misleading.

To support the second claim, the advertiser stated that currently 760,000 people are affected by aircraft noise due to Heathrow Airport. It explained that even the upper-end scenario of people affected following Gatwick’s expansion would fall significantly below this total. The ASA considered that the evidence provided by Gatwick Airport Ltd was enough to substantiate its claim and that therefore the ad was not misleading.

The ASA has again taken the approach of recognising the context within which these claims are made. As with Heathrow Airport Ltd’s adjudication in February, 2015 [link to February 2015 ASA Adjudication Snapshot], it has demonstrated in this adjudication that the public will view all but the boldest claims to be the advertiser’s opinion and expectation, rather than fact. 

RETAIL

4. DSG Retail Ltd t/a Currys/PC World, 4 March 2015 

A TV ad stated that a 4K Ultra HD TV would allow the consumer to “watch your favourite Christmas movies in greater detail”.

Complaint/Decision

Complaints, which the ASA upheld, challenged whether this claim was misleading as 4K content was currently very limited and unlikely to include any popular Christmas films.

The advertiser responded to the complaints by explaining that the TV had an automatic upscaling capability improving non-4K content to a higher resolution, allowing consumers to watch it in more detail. Clearcast also stated that, as no specific films were mentioned in the ad, they did not require the advertiser to confirm that specific content was available as 4K ready.

The ASA considered that native 4K content is of very limited availability and is currently only available in the UK through online on-demand providers. Such content is therefore unlikely to include classic Christmas films. It felt that it had not seen evidence demonstrating that the upscaling of non-4K content was comparable with and similar to genuine 4K content quality.

It also concluded that many viewers would not be familiar with the technology and would assume that the improvement in quality would be achieved by the 4K technology specifically, which was not likely to be the case with films watched over the Christmas period. As a result, the ASA found that this ad was misleading.

Though advertisers are eager to demonstrate the newest technological features of their products, their claims may not match the current practical limitations. Ads must make clear that such advancements are subject to real-world constraints, or they are at risk of being found to be misleading and in breach of the Code. 

5. BVG Airflo Group Ltd t/a Samuel Windsor, 4 March 2015 

A page on the advertiser’s website described shoes with the text, “£45 Save £70 was £115”.

Complaint/Decision

The complaint questioned whether the ‘original’ price of £115 advertised and associated savings could be substantiated.

The advertiser explained that the claim was based on the pricing of the shoes on www.swshoes.co.uk and in Samuel Windsor retail stores between 5 May and 5 August 2014. They submitted data showing that some shoes were purchased at £115 during these times.

The ASA considered that the previous selling price on the website had been £49.95 for two months between 29 April and 30 June. The price then dropped to £45 on 1 July, making the normal selling price on this platform £49.95 and the savings £4.95.

The ASA also considered the selling price of the shoes on online channels associated with Samuel Windsor and found that at the time of the ad the shoes were advertised at between £45 and £53.90. As the advertiser had not provided information on the previous selling prices on these other websites the ASA was unable to determine the normal selling price or the percentage of total sales that sales through those channels represented. As a result, this ad was found to breach the Code as it was misleading. 

6. Halfords Ltd, 4 March 2015 

A website featured text on a bike’s product page stating "£99 WAS £199.99* SAVE £100.00 (50%)". Further text on the "Description" tab stated "Higher price has been charged in 50 of 464 stores from 02/09/14 to 29/09/14 excluding Halfords.com * Intervening prices may have been charged".

Complaint/Decision

The complainant challenged whether the savings claims were misleading and could be substantiated. The ASA upheld this complaint.

Halfords Ltd argued that they had complied with the BIS Pricing Guide and made clear the basis of comparison in price. It explained that the higher price had been offered for 28 consecutive days in 50 stores across the UK and Republic of Ireland and that it was the immediately previous selling price.

The ASA considered the context in which the claim was made on the website and concluded that consumers would be likely to understand that £199.99 was the normal selling price available via the website, which was not the case. The text below the product description which made this clear was contradicted by the impression created by featuring £199.99 at the top of the ad. As a result, the ad was likely to mislead consumers and was in breach of the Code.

As can be seen from this and the above adjudication, the ASA requires advertisers to demonstrate that consumers are making a genuine saving by taking advantage of an offer. In determining if this is the case, it will also consider the genuine selling price of the good is through affiliated channels, as well as the pricing history of the product. These are unsurprising results as the BIS Pricing Guide requires ads to be clear as to what the genuine ‘original’ price was. However, the stipulation that this price should relate specifically to the medium in which the ad is shown, even where an explicit explanation of the disparity is made, can be seen as a strict interpretation of this rule. 

7. Halfords Ltd, 25 March 2015 

A TV ad for children’s bicycles featured children cycling down a residential street at Christmas with the pavement covered in thin snow.

Complaint/Decision

The complainant questioned whether the ad was irresponsible and likely to encourage dangerous behaviour in children as it showed them cycling at speed down an icy slope and occupying the width of the street.

The advertiser and Clearcast responded to say that they had taken care to ensure that the ad was socially responsible. Halfords Ltd pointed out that a slope was not shown in the ad and the children were not riding at speed. Further, the roads were clear and no cars were shown in the ad. Street signs clearly showed that the road was ‘one-way’, demonstrating that there was no danger of oncoming traffic. Halfords Ltd also explained that, while children are not required by law to wear protective helmets, the children in the ad wore them as an encouragement of the practice.

The ASA agreed that there did not appear to be an icy slope in the ad and that the road was clear of snow and cars. Though it did note that the ‘one-way’ sign’s positioning and length of time shown in the ad meant viewers were unlikely to understand the road was a ‘one-way’ street, the ASA considered that they would see it as a residential area and safe cycling environment.

The ASA felt that the ad’s message was not one of road safety, but instead promoted children’s bikes. It concluded that the ad conveyed this message without encouraging viewers to ignore cycling safety and thus was not in breach of the Code.

While the ASA can often take a strict approach toward advertising aimed at children, this adjudication makes it clear that advertisers who take sufficient steps to consider the message behind their ads are less likely to breach the Code. 

HOUSEHOLD 

8. G2S Group Ltd, 11 March 2015 

A website for the advertiser stated “WE ARE THE BEST… reassuringly better than all other window and door companies… our doors are better and more secure than any other door… 9 OUT OF 10 CUSTOMERS have recommended G2S to a friend or family member”

Complaint/Decision

Complaints challenged whether the claims were misleading and could be substantiated; the ASA upheld them.

The first complaint considered the comparative claims in the ad. The advertiser explained the several services which it provided were above the standard of their competitors. Further, it provided market research determining what qualities made its services superior, as well as a table comparing competitors’ offers against its own qualities. In addition, the advertiser explained that its unique method of installation ensured that the product was more secure than any other on the market.

The ASA considered the survey provided and concluded that as it was based on a limited number of competitors and features, it was not sufficient to support the claim. Further, it felt that consumers would understand that the doors advertised, rather than their installation, had additional and superior security features to others on the market. Due to the lack of objective, comparative evidence relating to G2S Group Ltd’s competitors and the unclear nature of the claim, the ASA concluded that the claims were misleading.

The second complaint questioned the claim that 9 out of 10 customers had recommended the advertiser. G2S Group Ltd responded, stating that this claim was supported by a selection of customer satisfaction questionnaires, and that it could supply several thousand of such forms. The ASA noted that the questionnaires had included the question “Would you recommend your friends or family?” As this was phrased as a future endorsement rather than in the past tense, the ASA felt that the claim was misleading and could not be substantiated.

The ASA’s decision is a strict interpretation of the Code, yet unsurprising. When considering comparative claims and in particular, superlative claims, it requires robust, independent substantiation which is capable of supporting the claims made, as seen in TomTom International BV’s adjudication from last month

9. Vax Ltd, 4 March 2015 

Ads for the advertiser’s cordless vacuum cleaner included the following claims:

a. A voiceover in the TV ad stated, “we made one change that changes everything – a full size vacuum cleaner without the cord”, with text stating, “Full size – Powerful*” and “*compared to GFK leading handstick vacuums”

b. Text in the ad on Vax Ltd’s website stated, “Powerful. Full size. Now cordless – we removed the cord but kept everything else”

Complaint/Decision

Complaints by Dyson questioned whether the claims were misleading as they suggested that the vacuum cleaner was as powerful as Vax Ltd’s corded models. The ASA found that the ads were misleading and upheld the complaints.

Vax Ltd argued that the claims did not compare the power of their advertised cordless machine with corded models and that consumers would expect there to be a difference between such models. It also felt that the text qualifying the “Powerful” claim explained that performance related claims were not in relation to corded models.

The ASA felt that the overall wording and tone of the ads suggested that a comparison with corded machines was being made and that the only difference was the absence of the cord; thus the performance of Vax Ltd’s product would be comparable, even in suction power and dust pick up. It also considered that the text used to qualify the “Powerful” claim was ambiguous when viewed in conjunction with the remainder of the ad.

Further, while the advertiser had provided testing showing comparisons between cordless and corded models, these did not compare suction power or dust pick up. As Vax Ltd had not provided substantiation demonstrating such performance of its product as against corded vacuums, the ASA felt that these claims were misleading. As a result, they were in breach of the Code.

What is particularly intriguing about this adjudication is that Dyson made a complaint regardless of the fact that Vax Ltd’s claims were only comparing its own models and not those of competitors – clearly highlighting the competitive nature of the vacuum cleaner industry. 

MOTORING 

10. Nene Valley Paramotors, 25 March 2015

The advertiser’s website stated “DTEC (Dynamic Torque Effect Compensation) is a unique technology patented by SCOUT. SCOUT is the only paramotor in the world to precisely compensate the torque effect throughout the whole power range. This ensures level flight without pilot input, perfect handling and a precise turning capability around pylons.”

Complaint/Decision

The complaint questioned whether the claims were misleading and could be substantiated. 

The advertiser responded to say that the paramotors used airfoil-shaped profiles which created lift during flight which compensated for the torque. It provided a video of the product being used under test conditions and further links to its website which explained the torque effect. It believed that the video demonstrated straight, steady flight at full power, when the torque effect was strongest, and reasoned that this was due to the DTEC as there was no other torque compensation means on the SCOUT paramotor.

The ASA upheld the complaint. It felt that robust evidence would be needed to substantiate the claim that DTEC design compensated for torque, resulting in “level flight without pilot input, perfect handling and a precise turning capability around pylons.” It considered that, as no independent evidence or further information was provided to demonstrate the flight in the video was straight or that torque was being compensated for, there was not sufficiently robust evidence. Further, the advertiser did not provide substantiation as to the speeds being achieved in the video, and thus the ASA did not feel the claimed effect throughout the entire power range had been demonstrated. There was also a lack of evidence demonstrating that the straight flight allegedly shown was a result of torque compensation achieved by DTEC technology.

With regard to the claim that “DTEC…is a unique technology patented by SCOUT” the ASA felt that documentation provided by the advertiser demonstrated that a patent had been applied for, but not that it had been granted or that other paramotors were not using the same technology as DTEC.

As a result, the ASA found that there was not sufficiently robust evidence to demonstrate that DTEC design compensated for torque throughout the entire power range, or that DTEC was unique technology patented by SCOUT.

This result demonstrates the need to substantiate claims thoroughly – including claims of uniqueness or patent status. 

11. Isuzu (UK) Ltd, 25 March 2015 

A video depicting the advertiser’s truck as the hero in a zombie infested city was shown as part of a banner ad on various websites and an app’s in-game ad.

Complaint/Decision

Complaints questioned if the content of the ad was distressing and offensive because it was excessively gory and frightening. They also challenged whether the ads were irresponsibly placed as they could be seen by children.

The advertiser responded that it did not believe the content to be distressing and that the campaign had been timed to coincide with Halloween. Isuzu (UK) Ltd believed that consumers would be more expectant of advertising with a Halloween theme as a result. The ad was only served in a tightly controlled online display and app campaign, based on demographic and behavioural targeting focused on males over 18 years of age with an interest in cars, as determined by their dominant browsing history. The advertiser also referred to safety restrictions put in place by networks which ensured that the ad would not be shown in an environment or website that was clearly aimed at children, even if an adult fitting their targeting visited such a website. Further, it explained that only by clicking on the ad and demonstrating an interest in the content could the longer version of the ad be viewed.

Exponential Interactive Inc, the network that served the ad on several of the sites seen by the complainants, confirmed the targeting method used. It did, however, acknowledge that if an entire family used one PC a cookie would be unable to identify a single individual, increasing the risk of a child viewing the ad. However, it felt that parents would be proactive in clearing cookies or opting out of behavioural targeting.

The ASA did not uphold the complaint that the content of the ad was distressing and offensive as it noted that while the protagonist of the ad was surprised by the sudden appearance of zombies, he was not shown to be in immediate danger. The ASA considered that some viewers may find the ad unsettling and that it needed to be carefully targeted, but that it was not overly graphic, violent or threatening, nor was it likely to cause serious or widespread offence. Thus, it was not in breach of the Code in this respect.

With regard to the second issue, the ASA upheld the complaints. It considered that the targeting undertaken by the advertiser did not mitigate the risk of a child sharing a device and browsing session with an adult and thereby viewing the ad. While the ASA noted that parents could minimise this risk by deleting browsing history or opting out of behavioural advertising, it felt that many would not be aware of targeting methods or steps they could take to avoid such targeting.

In addition, it considered the age ranges of the websites and app involved. The ASA concluded that children could view the ad on websites regularly used by those under the age of 18 regardless of the targeting conducted. This included Sparknotes, a website viewed by one of the complainants. Further, the app was deemed suitable for children above the age of four. The ASA felt that it was likely that parents would allow a child to play the app even if they would not allow the child to browse the internet independently. As acknowledged by Exponential Interactive Inc, this could lead to a child viewing the ad in the app or on a website while using the device with an adult in the same browsing session. In light of the above, and the targeting methods employed, the ASA felt that the advertiser had not taken the necessary precautions to mitigate the risk of a child viewing the ad, and that it was therefore in breach of the Code.

This result is interesting considering the giffgaff Ltd’s adjudication last month regarding a similarly Halloween themed ad. The ASA clearly considers the timing of an ad when determining whether it has breached the Code.

However, with behavioural targeting becoming more common and consumers unlikely necessarily to understand how it operates, the ASA has taken the stance that advertisers must have responsibility for ensuring that their ads are appropriately targeted.