MAIN ARTICLE

COMPUTERS AND TELECOMS

  1. Virgin Media Ltd, 29 June 2011

Virgin Media’s December 2010 marketing campaign included a website and an internet banner advert:

a. the website advert, www.stopthebroadbandcon.org, included options for readers to sign a petition and to share the page via social networking sites.  It also included a video that parodied a Sky TV advert, which was entitled “STOP the BROADBAND CON!” and included the text “Support the Campaign for Broadband Honesty”, plus a lot of other text. b. the banner advert began with the text “Not getting the broadband speed you’re paying for?”, and included the text “Stop the broadband con” and a link labelled “Sign the petition” to the website described above.

Complaint / Decision

A number of complaints were made by British Sky Broadcasting Ltd (Sky) and British Telecommunications plc (BT), namely that the adverts:

  1. denigrated other internet service providers (ISPs) by suggesting that they dealt with their customers dishonestly.
  2. were misleading in a number of respects, largely related to issues as to the speed of the broadband connection.

All of the claims were upheld and Virgin Media was told not to discredit or denigrate other marketers and ensure that the basis of their comparative claims was made clear in future advertisements.

The ASA noted that the repeated references to consumers being "conned" by their broadband providers went beyond highlighting disparities between advertised and delivered broadband speeds and implied that other ISPs dealt with consumers dishonestly in relation to broadband speeds, and therefore it was concluded that the adverts were denigratory. This was heightened by the fact that one of the adverts did not specifically refer to advertising, which meant that the claims were likely to be interpreted as being general, rather than related only to advertising for broadband.  In addition, the ASA considered that the claims made in the adverts gave the impression that other ISPs did not provide customers with information relating to the speed they were likely to receive before signing up to a broadband service, which the ASA understood not to be the case.  In light of these findings, the ASA held that the adverts were misleading.

The ASA considered  that the claim "Faster broadband means better broadband, whether you're surfing the web, watching TV online ... " was likely to be interpreted to be an absolute one and that consumers would therefore expect that Virgin could demonstrate that was the case in all instances in which they used broadband concurrently within households.  Virgin had not, however, provided the ASA with evidence to demonstrate that was the case, and it understood that in order to surf the web or stream TV online without interruptions, consumers would need a certain amount of bandwidth and that some ADSL customers would have sufficient bandwidth to do so, even if their service was used concurrently. Therefore, Virgin would not be able to offer such customers a better service. Because of this, the ASA concluded that the claim was misleading.

Although the advert had been subsequently amended to make clear which BT services were included in the comparison, the ASA decided that the text "Ofcom found Virgin Media broadband is twice as fast as other providers" was likely to be interpreted as an absolute one and that consumers would therefore expect Virgin to be in a position to demonstrate that was the case in all instances.  The ASA held that, because the advert did not make clear that the comparison excluded BT's Infinity service and that the comparison excluded Virgin's ADSL services and generally did not capture the effect of traffic management policies, the advert was misleading.

The ASA considered that the text " ... with around 90% of our advertised speed being delivered to customers" would be read in context, but noted that the basis of the claim was not made clear in the advert itself.  Therefore, the advert did not make it clear that the claim was intended to refer to typical average speeds, and was likely to be interpreted as suggesting all Virgin customers received around 90% of the speed advertised.  The ASA therefore concluded that the claim was misleading.

The ASA noted that Virgin also provided an ADSL service to a small proportion of customers which did use telephone lines.  Because Virgin had not sufficiently clarified this fact in the advert, the ASA considered that the claim was likely to be interpreted as referring to all Virgin broadband services.  In light of this, the ASA decided that the claim was misleading. Advertisers are reminded not to make absolute claims in adverts unless such claims can be substantiated with robust evidence. This decision also demonstrates the ASA’s propensity to look at the overall context of an advertisement, not just specific aspects. The ASA has been focusing on broadband speed as one of its hot topics since July 2010 and CAP is due to produce new rules on the marketing of theoretical maximum speeds.

HOLIDAYS AND TRAVEL

  1. bmibaby Ltd, 15 June 2011

bmibaby sent a promotional e-mail for flights in January 2011 with the headline “Massive discounts, baby!”, and the further text “Quick! It’s your last chance to book BIG savings on all flights for 2011. Don’t delay and check out the flights on offer”.

Complaint / Decision

A complaint was made that the advertised savings were not genuine.

The complaint was upheld. The ASA decided that the claim that the savings applied to “all flights for 2011” was misleading because the promotion did not apply to flights after 29 October 2011. bmibaby explained that this was because flights for dates after 29 October 2011 had not been released at the time the email had been sent and that the discounts were available on all flights that had been released at the time the advert appeared. However, the ASA was concerned that bmibaby only supplied a total of 15 examples of bookings made on the day on which the email was sent, and therefore the evidence did not substantiate the claim that savings could be made on all 2011 flights for all routes.  Other information supplied by bmibaby concerning average flight prices, was considered by the ASA as not directly relevant to the savings claim, especially in the absence of comparative data. 

This decision is a useful reminder to advertisers that they should retain sufficient and robust information to substantiate claims of savings and such information should relate to the entire period of the advertised offer.

LEISURE

  1. MyCityDeal Ltd t/a Groupon UK, 8 June 2011

A Groupon internet sales promotion stated "Lengthen Those Lashes with Eyelash Extensions from Bo Chic for £24 instead of £90", and "This Group is valid for 5 on 1 bud eyelash extensions only ...." under the heading "Fine Print".

Complaint / Decision

One complaint was made, by a member of the public who had taken advantage of the offer, that Groupon had exaggerated the advertised value of the treatment.

The complaint was upheld.  Although Groupon were able to provide an email of a price list from the salon owner which confirmed that £90 was the charge for the eyelash extension service, because Groupon were unable to provide evidence to substantiate its assertion that this was their regular charge, the ASA concluded that the value of the treatment and subsequently the savings claim had been exaggerated and concluded that the ad was misleading.

This latest decision against the group buying site’s promotions highlights the need for advertisers to ensure that they hold documentary evidence to demonstrate standard retail prices of goods or services prior to making price reduction offers.

  1. Lions Gate UK Ltd, 1 June 2011

In this adjudication the ASA considered complaints made about two television adverts promoting the release of the film The Mechanic. Both adverts contained clips from a number of scenes from the film, depicting violent behaviour, use of weapons and sexual activity.

Complaint / Decision

  1. Thirteen members of the public complained that the adverts were offensive and distressing, because they featured scenes of graphic violence; and
  2. Three members of the public complained that one of the adverts should not have been shown during the programme Glee because it might be seen by children.

Both complaints were upheld.  Lions Gate submitted that the film had been rated 15 by the British Board of Film Classification and because of this and the subject matter, it would be expected that the marketing material would feature scenes of guns and violence.

The ASA was concerned that the way in which the film had been cut to form the adverts had heightened the impact of the violent behaviour which was shown without any wider context and therefore created a “sustained stream of violent imagery”.  This was emphasised by the fact that the protagonist was not shown to suffer any consequences for his actions, and the ASA was concerned in particular that one scene in which one character looked at the protagonist and said "Nice" would be interpreted by viewers that the violent behaviour that had been shown was being condoned.

Lions Gate had worked with Clearcast, following it’s scheduling advice and the adverts had only been shown post-9pm. Despite this, the ASA considered that the adverts were likely to seriously offend or distress some viewers even when shown post-9pm.

The ASA also noted from the audience index figures for the episode of Glee during which one of the adverts had been shown revealed that a significant proportion of the viewers were under 16, and therefore a significant amount of children had been exposed to inappropriate violent imagery.

The ASA decided that the issues raised in the complaints could not be resolved with a further timing restriction, and that both adverts should therefore be withdrawn from transmission completely.

This adjudication shows that particular care needs to be taken with any advert which shows violence. Advertisers are reminded that they should be aware of the balance that needs to be struck between the dramatic impact and appeal of the advert and the need to place violent imagery in context.

  1.  Lions Gate UK Ltd, 29 June 2011

In this adjudication the ASA reviewed two TV adverts for the film Drive Angry 3D.

The first scene of one of the adverts included a car crashing into a group of people, with large on-screen text and a voice-over stating "Get ready for a hell of a ride".  The main protagonist then said "You can't stop me" whilst pointing a large gun.  This was followed by clips from a number of scenes from the film, depicting violent behaviour and use of weapons.

Complaint / Decision

Two members of the public complained that the adverts were offensive because they included scenes of graphic violence.

The complaint was not upheld. The film had been given an 18-rating, and because of this and the subject matter, it would be expected that the marketing material would feature scenes of guns and violence  Lions Gate has also worked with Clearcast which had imposed a post-11pm restriction, rather than deeming the adverts unsuitable for broadcast at all, on the basis that the violence in the adverts was “comic-book surreal”.

The ASA considered that although the adverts contained scenes of blood and gore that might be distasteful to some viewers, neither of the adverts encouraged or condoned violence, and none of the characters were obvious victims or underdogs.  In addition, the ASA considered that most viewers would be aware that more adult material was likely to be broadcast after 11pm and that the majority of post-11pm viewers were unlikely to be offended by the adverts.

This decision contrasts that made by the ASA in the above adjudication concerning adverts for The Mechanic.  The reasoning appears to be that the cutting of scenes for The Mechanic had the effect of condensing the violent scenes, giving them a higher impact and making them inappropriate for post-9pm viewing. In addition, the characters in the film were shown condoning the violence. In contrast , the Drive Angry adverts were scheduled to appear under a stricter time restriction, there was not condoning of violence and the violence was more surreal.

  1. Paramount Pictures UK, 15 June 2011

Paramount made a TV advert for the film "No Strings Attached" which was broadcast during the programme Deal or No Deal shown at 1.30pm.  A man and a woman were featured.  The woman said "I need someone who's going to be in my bed, no strings attached", and the man replied "I could do that".  Short clips of the couple in bed together were shown, followed by the on-screen text "CAN BEST FRIENDS ... BE SEX FRIENDS?".

Complaint / Decision

One viewer complained that the advert should not have been shown when children might see it.

The complaint was not upheld. Clearcast said that there was only one reference to sex in the advert and that, although shown at 1.30pm, it had not been broadcast around programmes aimed at children under 16 years old. The ASA decided that the advert accurately reflected the content of the film because it showed the two adults fall in love, having tried to maintain an exclusively sexual relationship.  Although the ASA noted that some viewers might find the idea behind the film and the advert to be distasteful, it decided that the ex-kids restriction was appropriate and that the advert had not been shown at an inappropriate time because it was unlikely that it would have and adverse affect on any children who had viewed it.

Although adverts with sexual content may be regarded as unsuitable, careful targeting of adverts can usually avoid problems. Timing restrictions will be imposed where content might harm or distress children, or otherwise be unsuitable. HEALTH AND BEAUTY

  1. Home Shopping Selections Ltd, 8 June 2011

Home Shopping Selections placed an advert in the national press promoting a thin strap worn below the knee, which was headlined “IMMEDIATE KNEE PAIN RELIEF” and featured a picture of the product. Further text stated “We asked an independent research company to test our Knee Strap. The results were fantastic and now the benefits of the Knee Strap speak for themselves - as ordinary, every day, [sic] people confirm what we already knew! The Knee Strap works! The independent research company asked a panel of men and women, who suffer from knee pain to try our Knee Strap. When asked 'Did you feel support around the knee area while using the product' 86% said YES and 76% said they felt 'instant support'. The Knee Strap is so effective because it helps support the Patella ... So there you have it - conclusive independent research proves that Knee Strap provides immediate relief from knee pain! ... 76% said that they felt 'INSTANT SUPPORT'”.

Complaint / Decision

  1. A complainant challenged whether the claim "immediate knee pain relief" could be substantiated; and
  2. The ASA challenged whether the claim that the strap offered "Instant Support" could be substantiated.

Both claims were upheld.

Home Shopping Selections adduced evidence that it had commissioned a research company to conduct a research survey with 125 volunteers. They also stated that the product was not deemed to be a medical device and therefore a CE certificate was not necessary.

The ASA consulted the Medicines and Healthcare Products Regulatory Agency (MHRA) which stated that claims that a product that could provide “immediate knee pain relief” brought the product within the classification of medical devices, therefore, it must be registered and must bear a CE mark. Because there no evidence of this, the ASA concluded that this claim breached the Code.

The ASA considered that objective testing methodology with a placebo or control group would be required to support a claim that “instant support” would be provided. In this case product users were asked to self-assess the effects of the product in a questionnaire, something which the ASA considered insufficiently robust to substantiate the claim, which it therefore considered misleading.

This decision highlights the need for advertisers to check that the products that they market comply with all necessary safety standards from the relevant regulatory authorities before making claims that suggest that they belong to a particular group of products.  In addition, this decision demonstrates the type of evidence or studies needed to substantiate any health related claims.

  1. Nutricia Ltd, 29 June 2011

In this adjudication the ASA considered two adverts for Cow and Gate Complete Care Growing Up Milk, including a TV advert featuring a toddler and including the text "Did you know that to grow at his best your toddler needs at least 6 mg of iron per day?", "*as part of a mixed diet", with a voice-over stating "that's the equivalent of 20 litres of cows' milk …".  Following this, a mother was shown carrying an enormous beaker of 20 L of milk and placing it in front of the toddler and the voice-over continued "... or just two cups of Cow and Gate Growing Up Milk specifically tailored for toddlers age one to three."  On-screen text then stated "2 cups=500ml. Cow & Gate Growing Up Milk should be used as part of a mixed diet", whilst the mother gave the child a small cup of Cow & Gate Growing Up Milk, and then "Helping to support Healthy Growth, Brain Development, Learning Skills. Cow & Gate Complete Care Growing Up Milk. Because healthy toddlers, are happy toddlers"

Complaint / Decision

A number of complaints were made:

  1. Many viewers complained that the text used in the TV advert misleadingly implied that cow's milk was the only or main source from which young children could obtain their Recommended Daily Allowance (RDA) of iron;
  2. Suffolk Trading Standards complained that the TV advert misleadingly implied that 500 ml of Growing Up Milk would be able to provide toddlers with 100% (6 mg) of their RDA of iron, whereas a toddler would not absorb 100% of the iron in any food;
  3. Many viewers complained that the TV advert was misleading and harmful because it implied that ordinary cow's milk was inadequate or that not using the advertised product could damage children's development;
  4. Several viewers complained that advertisers could not substantiate the claim in the TV advert that the product could help "support Healthy Growth, Brain Development, Learning Skills";
  5. Several viewers complained that the advert might adversely affect a mother’s decision to breastfeed, which would be detrimental to babies and toddlers because they believed that breast milk was the best milk for them to consume.

Claims 1 and 3 were upheld and claims 2, 4 and 5 were not upheld.

The ASA noted that Nutricia had adapted the advert to follow the instructions given in a previous ASA adjudication by including the on-screen text "*as part of a mixed diet.  However, the ASA found that the advert still misleadingly implied that cow's milk was an extremely significant source of iron for young children and was the most important part of a toddler’s diet in relation to iron intake, despite the fact that cow's milk is actually relatively low in iron compared to other foods.

The ASA consulted the Food Standards Agency (FSA) and an independent expert to find out more about the absorption of iron from different foods.  The FSA said that the bioavailability of iron in cow's milk and formula milk was relatively low. However, based on absorption rates, 500ml of Cow & Gate Growing Up Milk would be theortically capable of providing a toddler’s RDA of iron. Therefore, the ASA held that this claim was not misleading as to the amount of iron provided by the product, even though they acknowledged that toddlers should obtain their RDA of iron from a varied diet.

The ASA took further advice from the FSA and noted the terms of a report from 1994 of the Committee on the Medical Aspects of Food Policy and concluded that, whilst it had other nutritional benefits, ordinary cow's milk was not a good source of iron. As the Growing Up Milk contained more iron than ordinary cow’s milk, the ASA did not consider the comparison in relation to iron content to be misleading. However, the on-screen qualification that "Cow & Gate growing-up milk should be used as part of a mixed diet, was not sufficient to avoid the misleading overall impression of the advert that that milk was the main or most important source of iron in the diet for toddlers. The exaggerated benefit of the product in the diet was considered likely to mislead parents either to think that not using Growing Up Milk could risk iron deficiency in their children, or to contradict good dietary advice for young children.

Although it was acknowledged that Nutricia was legally prohibited from comparing the nutritional properties of Cow & Gate Growing Up Milk with food or drink other than milk, the relevant Regulation   did not prevent a child from being depicted drinking Cow & Gate Growing Up Milk as an accompaniment to a meal to illustrate clearly the importance of children having a varied mixed diet.

The ASA referred to the EC Regulation on Nutrition and Health Claims Made on Foods. An application had been submitted for the claim that added iron was important for brain development and helped the immune system. However, until this was determined, UK adverts were permitted to make registered claims provided they complied with the CAP and BCAP Codes.

The ASA also consulted an independent expert on whether the claim "helping to support Healthy Growth, Brain Development, Learning Skills" had been sufficiently substantiated by the evidence adduced by Nutricia. As to “healthy growth” the expert concluded that Cow & Gate Growing Up Milk could, at best, benefit 10% of UK toddlers, on the basis of iron deficiency in approximately 10% of toddlers. The studies submitted were only on children aged 6 to 18 months, not aged one to three, and the numbers in the studies were small. As to “brain development and learning skills”, the expert again referred to the issue of iron deficiency and said that iron supplementation could help prevent the deficit in brain development amongst this small group of toddlers.

The ASA considered that, in the context of the whole advert, viewers would not infer that the product would provide additional benefits for the majority of toddlers who obtained sufficient iron and other nutrients from eating a mixed and healthy diet. Therefore the claim under consideration was considered to be misleading.

The ASA noted the Department of Health’s recommendation that a baby should be breastfed for the first six months and that six months was the recommended age for the introduction of solid food, with breastfeeding and/or breast milk substitutes continuing.  The advert clearly stated that the product was specifically aimed at toddlers between the ages of one and three. Therefore the ASA decided that the advert was unlikely to be understood to suggest that the product should be used as a substitute for breast milk, concluding that it was unlikely to mislead by undermining parents' decision to breastfeed. This adjudication was clearly complex, involving a considerable degree of input from one of the ASA’s experts. The fact that it took well over two years to reach the final adjudication stage is likely to be quite telling. Food or food-related adverts making nutrition and health claims are always complex and will also regularly attract complaints. Advertisers will know that great care needs to be taken, but attention must always be paid to implied, not just express claims.

HOUSEHOLD

  1. Anglian Windows Ltd, 29 June 2011

A sponsored web-link for Anglian Windows stating "Whitchurch Windows - Save Energy & Heating Costs With Our Quality Windows! Enquire Now [a website address for Anglian Windows followed].”was displayed on-screen in February 2011 when searching for the term “Whitchurch Windows" using an internet search engine.

Complaint / Decision

Whitchurch Windows challenged that the advert was misleading on the basis that consumers would be given the impression that the advert was for Whitchurch Windows rather than for Anglian Windows.

This complaint was not upheld. Anglian windows used a keyword search process for their sponsored search adverts, such that if a consumer searched for windows in the Whitchurch area the search engine would recognise that Anglian Windows had a national presence and sold windows in that area . As the highest bidder for those search results at that time, the Anglian Windows advert would appear at the top of the list of results. The ASA noted that it was commonplace for companies to use locations as well as products and services in their sponsored search results and that any company could bid for the search terms.

The ASA decided that the inclusion of Anglian Window’s web address made it likely that consumers would perceive that the advert was for Anglian Windows , and that any internet user specifically searching for Whitchurch Windows’ website would also be able to find the correct link in the main body of the search results. Therefore the advertisement was not misleading.

This decision re-iterates the ASA’s support of the use of key word searching, where there is no likely confusion for the public (see also last months’ adjudication on Euro Ceramic Centre. This also demonstrates the danger of using a location-based company name.

RETAIL

  1. Comet Group plc, 15 June 2011

A brochure had the text “Online prices in store now. Please ask in store for details” as its header. The same text also appeared on every double page spread, with the additional text “Prices checked daily”.  In addition “Prices and offers correct at time of going to press. Prices and offers may vary. Ask in-store for details. Offers valid from 17 February 2011” was included at the bottom of each page, and “Save £150. £89.99 was £239.99 Panasonic 12 MP digital camera ... Model DMC-FS9EB-K ... Only at Comet” was included at the top of page 22.

Complaint / Decision

Two complaints were made that:

  1. DSG Retail Ltd (DSG) complained that the claim "Prices checked daily" was misleading because it believed that the advert implied that Comet checked the online prices of all of its competitors. However, it had omitted the prices of Dixons Retail; and
  2. A member of the public challenged whether the claim "Save £150. £89.99 was £239.99" was misleading and exaggerated the saving because the complainant believed that Comet had used the exclusive nature of the product to set an unrealistic RRP.

Both complaints were upheld.

The ASA noted that dixons.co.uk had not been included in any price comparison and acknowledged that that was made clear in the Price Match Promise on their website where the competitors were listed. However, it also noted that the advert did not qualify the basis of the price comparison, and because of this the ASA concluded that the advert was misleading.

The ASA noted that the DMC-FS9 was sold exclusively sold by Comet and was not the same as the DMC-FS10 sold by other retailers. However, although Comet had sold its DMC-FS9 product at the price of £239.99 for 21 days in November 2010, the ASA noted that the BERR Pricing Practices Guide stated that comparisons with retailers’ own previous prices should in general be the immediately previous price for the product. If an earlier price was to be used for the comparison, this should be expressly stated.  Because the basis of the price comparison had not been made clear in the advert, the ASA considered it to be misleading.

Pricing is always a complex area. This adjudication reiterates the ASA’s stance with respect to companies including up-to-date prices making price comparison adverts. The reference to the RRP is particularly interesting, and emphasises the need to comply with the BERR Pricing Practices Guide.

FOOD AND DRINK

  1. Unilever UK Ltd, 1 June 2011

This adjudication concerns two adverts for gravy granules that were placed in catering magazines. Both adverts included the text "unbeatable taste vs. Bisto*" and smaller text stating "KNORR has unbeatable scores for taste, appearance, consistency and aroma when testing against main competitors*". Small print at the bottom of the advert stated "*Partner Research Jan-April 2010".

Complaint / Decision

Premier Foods Group Ltd complained that:

  1. the comparative claims in both adverts were misleading and could not be substantiated;
  2. the adverts should have made clear how consumers could verify the featured comparisons; and
  3. the comparison of the advertised products with "Bisto" was misleading, because Bisto was a brand name and the adverts did not make clear which specific Bisto product had been used as a basis for the claims made in the advert.

The first two complaints were upheld.

The ASA considered that the statements made in the adverts were top parity claims (as opposed to a “number one” claim) capable of objective substantiation.  Unilever had provided the ASA with a survey in which 62 chefs had been surveyed and asked to taste three products: Knorr Gravy Granules for Meat Dishes (Knorr); Bisto Gravy Granules (Bisto); and a third party product not referred to in the adverts, and were asked to choose which one they would rank first. The ASA decided that this method of testing did not ask the chefs to single out any particular factors for tasting, which meant that the claims concerning these factors had not been adequately substantiated.

The ASA also noted that the claim included a comparison with Knorr’s main competitors. However, the survey results for the third-party product which showed that it had obtained a better score than the Knorr product, had not been included.  As a result, the ASA concluded that Knorr had not been shown to be unbeatable in comparison with its main competitors, and therefore the adverts were misleading in this regard.

The ASA further noted that both adverts should have set out how consumers could check the information used as a basis for the comparative claims made in the adverts. Alone, the fact that the headline claims in both adverts were accompanied by asterisks that linked to text providing the name of the survey company and the dates of the survey, was not considered by the ASA to be sufficient for readers to verify the comparisons. Consumers should have been directed to the relevant website.

The third complaint was not upheld. Bisto Gravy Granules were considered to be the most equivalent Bisto product to Knorr’s standard gravy product, having approximately a 50 per cent share of the trade market. Because of this, the ASA considered that a trade audience was therefore likely to understand that the Bisto Gravy Granules product was the one being compared in the advert.

This adjudication highlights some of the issues to consider when seeking to make comparative claims. Advertisers should not cherry pick only data that places their products in a better light. Also, this adjudication makes clear how the ASA considers cross-references to survey information should be dealt with.

  1. Ferrero UK Ltd, 29 June 2011

This adjudication concerns a TV and video on demand (VOD) advert for Nutella. The VOD advert was shown during Jamie’s American Food Revolution and Neighbours.  The advert featured various people, including children, waking up and going about their morning routines, preparing toast with Nutella, and leaving their homes dressed for work or school.  The words “ ... Each 15 gram portion contains two whole hazelnuts, some skimmed milk and cocoa ... Wake up to Nutella” were included in a voice over, and on-screen text stated “wake up to nutella”.

Complaint / Decision

31 complaints were received from viewers and from Which Ltd, challenging the adverts for being:

  1. misleading because it did not make clear that Nutella also contained a high proportion of sugar and fat; and
  2. likely to encourage poor nutritional habits or an unhealthy lifestyle, especially in children.

Neither of the complaints was upheld.  The ASA considered that, in the context of toast being prepared,  viewers would be likely to understand that the references to hazelnuts, skimmed milk and cocoa as ingredients that  differentiated Nutella from other similar spreads. Viewers were unlikely to interpret the advert to mean those were the only ingredients in the product, or that it did not contain any unhealthy ingredients. In addition, because each child featured in the advert was shown eating only one slice of toast with Nutella and was surrounded by other healthy breakfast items including fruit juice, milk and cereal, the ASA decided that the overall impression of the advert, including the "wake up to Nutella" message, was that Nutella was a breakfast option, and did not suggest that Nutella should be consumed in excessive quantities, or on a daily basis.  In light of this, the ASA decided that the advert was unlikely to encourage poor nutritional habits or an unhealthy lifestyle in children, and that it was unlikely to mislead customers into thinking that it made a significant contribution to a balanced diet. Ferrero made the point that the content and scheduling of the adverts for Nutella was restricted because it is a high in fat, salt and sugar (HFSS) product. In addition, Ferrero had its own policy designed to avoid placing Nutella adverts around programmes relating to health, obesity, child hyperactivity and similar. It was only since they had been contacted by the ASA about these complaints that they had discovered that it was not possible to enforce these voluntary restrictions in relation to VOD, otherwise, they would not have shown the advert during or around Jamie’s American Food Revolution. As a result they had since decided not to advertise Nutella on VOD.

This adjudication re-iterates the ASA’s approach of taking the overall effect of an advertisement into account and assessing allegedly misleading quotes and text in the context of the whole advert.

OTHER

  1. Book A DSA Test, 15 June 2011

On 13 March 2011 Book A DSA Test’s website included an advert which stated "Book a DSA Test. The quick and easy way to book your practical or theory driving test online ... You can now book your DSA Practical and Theory test FAST and SIMPLY online. We are here to provide you with the smart way to book and manage your DSA Practical Driving Test or your DSA Theory Driving Test online with as little fuss for you as possible. Booking your test couldn't be simpler now, just complete the online form for the test you are booking at a time that suits you and we will do the rest ... ".

Complaint / Decision

A complaint was made by the Driving Standards Agency (DSA) that the website could mislead consumers into thinking they were booking a test directly with the DSA, rather than through Book A DSA Test.

The complaint was upheld. The ASA noted that Book A DSA Test’s website did not include the DSA logo and the web address was “.com” rather than “.gov.uk” (which is used by the DSA itself), and the website also contained a disclaimer stating that it was not the DSA or a government-backed agency (this was a recent addition). However, the ASA considered that the general impression given by the advert could mislead consumers into thinking  that they were booking a test directly with the DSA.

This adjudication follows a decision made by the ASA concerning a similar advert made by Training Theory Solutions Ltd, on which we reported last month.  In contrast to the Book A DSA Test advert, the Training Theory Solutions Ltd adjudication was not upheld, even though both adverts were placed on “.com” rather than “.gov.uk” web addresses.  The main difference here was that the name of this advertiser could in itself be misleading, because it included the word DSA. As a result, they needed to take greater precautions in order to ensure that customers were not misled in these circumstances.

  1. All Vehicle Contracts Ltd, t/a AutoBuddy, 15 June 2011

From 30 March to 3 April 2011, Autobuddy's website included claims such as that it was "The Home of INSTANT Online Quotations", that it provided a "Quick Quotation Search" where consumers could choose from drop-down lists of a range of car manufacturers, models, "versions" and contract types, and a "Vehicle Shopper with Company Car Tax Calculations" where consumers could choose from drop-down lists of contract types, car manufacturers, CO2 emission levels and select a monthly cost range.

Complaint / Decision

One complaint was made that the quotes offered were not actually available because the complainant had found that he could not obtain vehicles on the 12-month contract stated as an option on the website.

The complaint was not upheld.  The ASA found that Autobuddy had been unable to honour the automatic quotes generated for the complainant because of a fault in their website quotation system, rather than for any other reason. It also noted that Autobuddy  had taken appropriate and immediate action to correct this fault. Although this had been frustrating and disappointing for the customer concerned, the ASA concluded that the advert did not breach the Code. This decision demonstrates a practical approach on the part of the ASA to technological problems that arise especially in the context of internet advertisements. Advertisers that they may not be held responsible for such problems provided that there is not a delay between their discovering the issue and taking corrective action.

  1. Creative Media Ltd, 8 June 2011

In February 2010, Creative Media Ltd placed a competition promotion in a car magazine to win £10,000 worth of car accessories.  It was headlined "WIN A £10,000 MAKEOVER!", and included text which stated "FORGET TRINNY, SUSANNAH AND THAT Gok fella, when it comes to full on budget busting makeovers we've got a competition that'll blow your socks off ... it's not very often we get to offer a full-on motor makeover but that generous lot over at the Auto Sound & Style Show, to celebrate their awesome event kicking off on the 7th of March at Stoneleigh Park, are gonna be fitting one lucky winner's car with over 10-grand's worth of super-slick technology. I'm not joking either, just check out the list of top mods opposite and you'll have to agree it's gotta be just about the bestest prize in the history of FC bestest prizes!”.

Further text, next to pictures of a number of different car accessories, listed the prizes “JKM G4 IN CAR PC; TAROX DISCS AND PADS; TSUNAMI CABLING AND POWER CAP; AUDIOCONTROL EPIC 160 IN-DASH BASS MAXIMIZER; NAVIGON 8450 LIVE SAT NAV; VI PERFORMANCE MONITOR; PARROT MKI9200 HANDS-FREE KIT; STEELMATE PARKING SENSOR KIT AND TYRE PRESSURE MONITORING SYSTEM; DOTZ ALLOYS WRAPPED IN MYTHOS RUBBER; FALCON SECURITY PREDATOR EVO4 ALARM; ALPINE DOUBLE DIN HEAD-UNIT AND COMPONENT SPEAKERS; GROUND ZERO 5000W RMS SUB AND 2-CHANNEL AMP; RACCOON VEHICLE WRAP”.

Complaint / Decision

A complaint was made by the winner of the competition who challenged whether the competition was conducted promptly and efficiently because he had not received a number of the listed prizes.

The complaint was upheld.  The CAP Codes require marketers to conduct promotions promptly and efficiently and to avoid causing unnecessary disappointment.  They also require that prize promotions should specify, before or at the time of entry, when winners would receive their prizes if later than six weeks after the closing date.  However, no such information was included in the competition or in the terms and conditions online. Creative Media stated that they could not have known the specification of the car for which the prizes were to be supplied until the winner was chosen.

The complainant had won the competition in May 2010 but had still not received five of the thirteen prizes in April 2011.  The ASA noted Creative’s response that it had experienced problems sourcing the advertised prizes, and had kept in contact with the winner about the situation.  However, the terms and conditions of the competition provided for alternative prizes or cash to be supplied, and neither alternative options had been offered to the complainant, Creative should have tsken the initiative to solve the problem much sooner. Therefore, the poor administration of the competition had caused unnecessary disappointment to the winner.

This decision highlights that poorly run competitions can fall foul of the CAP Codes. Advertisers should take into consideration how long it will take to source and deliver prizes prior to including them in competitions.

  1. Direct Line Group Ltd, 22 June 2011

Complaints were made with regard to two Direct Line adverts promoting home insurance on TV and as a banner advert on the Direct Line website.

Both adverts included the claim "We promise to beat the price of your current home insurance".  Further on-screen text for the TV advert stated "Minimum 12 months + with current home insurer. Minimum premiums & qualifying criteria apply. New purchasers with 3 + claim free years only on equivalent cover to ours. Excluded Direct Line Select".

Terms and conditions were given on a separate page for the banner advert

Complaint / Decision

Two complainants challenged whether the claim "We promise to beat the price of your current home insurance" was misleading because the complainants understood that Direct Line would only agree to beat customers’ next renewal premiums.

The complaints were not upheld:

The ASA understood that in the TV advert Direct Line had offered to beat the premiums that customers were paying for their current insurance, provided that they had been with their existing insurer for more than twelve months (a qualification which was included in the online text). Clearcast had approved the advert on this basis.   The ASA noted that a complainant had been told by Direct Line that they would not beat the price of his current home insurance because the offer applied to future renewal premiums only. However, Direct Line contended that this was an error on the part of the individual representative. The ASA acknowledged that Direct Line had issued guidance to its staff to follow when administering the offer. The ASA also considered that the advert had adequately described the offer, and Direct Line had taken appropriate steps to enable their staff to administer the offer correctly.

Although no qualifications were included in the body of the banner, the ASA noted that there was limited space in the advert in which to explain the terms of the offer.  The ASA decided that the link to Direct Line’s terms and conditions was sufficiently prominent for consumers to be able to find the relevant information needed to consider the offer fully, especially in conjunction with the wording “we promise to beat the price of your current home insurance”.  

In relation to both adverts, Direct Line had also shown that it would agree to better a customer’s current insurance premium and not just their next renewal premium. On this basis, the ASA concluded that the adverts were not misleading.

Provided that full details of any qualifications to offers are included, or there is a sufficiently prominent link to details of such qualifications, and sales staff are fully trained in the terms of the offer, they should not be misleading. Care must always be taken to ensure that qualifications are sufficiently significant to amount to contradictions.