This summary provides a selection of the most interesting ASA adjudications in October and highlights the key issues considered in those adjudications. Of interest this month is the attention focused on Virgin Media’s traffic management policy (TMP). Sky’s comparison ad was found misleadingly to exaggerate the effect of Virgin Media’s TMP and to such an extent that the ad was found to denigrate the Virgin brand. However, Virgin Media’s TMP came under further scrutiny in an adjudication of the company’s own ad. The ASA found that Virgin’s TMP was not “moderate”, as the effect of the TMP was not consistent with the general slow down in speed experienced by consumers. This month the ASA also considered a blog post written by a member of the public on the Hi Spirits Ltd webpage which was found to encourage excessive drinking, an example of on-line space within an advertiser’s control falling within the remit of the CAP Code. Further, a feature of this month’s adjudications was the impact of the EU Regulation on Nutrition and Healthcare made on food in relation to a Flora pro-activ ad; and an ad for organic dairy products which demonstrated compliance with the EU rules governing what “organic” cows must eat.
FOOD AND DRINK
- Agriculture and Horticulture Development Board t/a lovepork.co.uk, 23 October 2013 (an ad for the Red Tractor Scheme noting the importance of meat origin did not create a misleading impression that all pigs were raised to free range welfare standards)
- Organic Trade Board t/a Organic UK Food, 16 October 2013 (claims made in an ad for organic dairy products were well substantiated, demonstrating compliance with EU law and therefore did not breach the Code)
- Unilever UK Ltd, 2 October (an ad for pot noodles was accused of discriminating against transsexuals but the ASA disagreed finding the ad’s humour consistent with the company’s advertising campaign)
- Unilever UK Ltd, 16 October 2013 (an ad for Flora margarine which made health claims breached the BCAP Code for changing the wording in relation to one of the authorised claims listed on the EU Register of Nutrition and Health Claims)
- Hi Spirits Ltd, 23 October 2013 (a blog posted by a member of the public about Fireball whisky breached the Code for encouraging excessive drinking)
- WDFC UK Ltd t/a Wonga.com Ltd, 9 October 2013 (a payday loan ad was irresponsible for implying that loans were suitable routinely to supplement a monthly income without much consideration)
- Inspop.com Ltd t/a Confused.com, 16 October 2013 (complaints about an insurance comparison ad which, although it did not include explicit references to sex or sexual imagery, was considered offensive were not upheld by the ASA)
- Hilton International Hotels (UK) Ltd, 23 October 2013 (Hilton could demonstrate that 10% of bookings made were at the “from price” but not that 10% of the relevant hotel rooms were available at the “from price”. This evidence did not substantiate the “from price” claim made in the offer)
- Deutsche Lufthansa AG t/a Lufthansa German Airlines, 30 October 2013 (a “from price” in an ad for discounted flights to Europe was misleading as the “from price” only actually applied to flight tickets to Germany)
- National Theatre of Scotland, 23 October 2013 (a poster for an upcoming play featuring a child with vampire fangs and blood running from her eyes and nose was not found to cause serious or widespread offence)
- Chessington World of Adventures Operations Ltd, 30 October 2013 (the ASA found an ad for a ride at a theme park not to mislead nor to cause children to have unrealistic expectations of the ride)
- Debenhams Retail plc, 9 October 2013 (an ad for a “half price” sale at Debenhams was substantiated showing Debenhams’ compliance with the BIS Pricing Practices Guide in relation to “half price” promotions)
- B&Q plc, 16 October 2013 (the ASA concluded that B&Q had no legitimate reason to extend an offer and that the extension may have disadvantaged customers)
- ASDA Stores Ltd, 30 October 2013 (limitations which applied to an advertised “10% cheaper guarantee” affected a minimal percentage of consumers so the ad was found not to mislead)
- Argos Ltd, 30 October 2013 (an ad for discounted refrigeration products did not display the discount, nor the basis for price comparisons made, on all products and was therefore found to be misleading)
- Beats Electronics International Ltd, 9 October 2013 (an ad for Beats Pill speakers was not offensive or denigrating towards women but the ASA upheld a complaint in relation to the scheduling of the ad on the basis of some provocative scenes contained in the ad)
- British Sky Broadcasting Ltd t/a Sky, 9 October 2013 (an ad for Sky broadband misleadingly exaggerated the effect of Virgin Media’s traffic management policy and denigrated the Virgin Media brand)
- Virgin Media Ltd, 30 October 2013 (the ASA decided that the Virgin Media traffic management policy is not “moderate” and therefore claims made by Virgin Media that their broadband was unlimited were found to be misleading)
- Talk Talk Telecom Ltd, 30 October 2013 (an ad for a package which included half price TV, broadband and phone line was found to be misleading as the line rental cost was not included in the ad)
- Home Office, 9 October 2013 (claims in posters aimed at individuals residing in the UK illegally were based on inaccurate data and the ad’s qualification was unclear in the context)
FOOD AND DRINK
- Agriculture and Horticulture Development Board t/a lovepork.co.uk (“AHDB”), 23 October 2013
A TV ad for the Red Tractor Scheme featured farmer and TV personality Jimmy Doherty on his farm with pigs wandering around. He said “Now more than ever it’s important to know where all your meat comes from, and I think the easy way to do that is to trust the Red Tractor. All pork, sausages and bacon carrying the Red Tractor mark is traceable back to Red Tractor farms. It is inspected to ensure all pork you buy has come from pigs that are well looked after, raised to good standards by responsible farmers”.
Complaint / Decision
Compassion in World Farming and 86 viewers challenged whether the ad gave the misleading impression that all Red Tractor pigs were raised to free range welfare standards which the viewers understood was not the case.
The ASA did not uphold these complaints. The ASA noted that the majority of complaints appeared to be responding to an online campaign questioning the general standard of animal welfare on Red Tractor farms as well as addressing whether the ad implied that all the pigs were free-range. The ASA understood from the complainants that one particular farm in the Red Tractor Scheme (the “Scheme”) had been exposed as falling below Red Tractor Standards. This farm had been removed from the Scheme by AHDB, which then implemented a number of measures and substantive changes to the Red Tractor Scheme Standards, establishing more stringent inspections to help avoid a similar problem in the future. The ASA considered that the monitoring of such a Scheme could not be absolutely infallible and that one incident did not undermine the legitimacy of the Scheme. Although the incident was unfortunate, the ASA concluded that it did not negate the claim “it is inspected to ensure all the pork you buy has come from pigs that are well looked after, raised to good standards by responsible farmers”.
The ASA noted that the main message of this ad was the importance to consumers of knowing where their meat came from and that the Scheme meat was traceable back to the originating farm. The ad featured a mixture of farms both outdoor and indoor, and made no specific claims that the pigs on Scheme farms were all raised to free-range welfare standards.
The ASA considered viewers unlikely to believe that all the farms in the Scheme would necessarily be comparable to Jimmy Doherty’s or that his represented all the farms on the Scheme, only that the Scheme pigs were “raised to good standards by responsible farmers”.
The ASA concluded that the ad was unlikely to mislead viewers as the message was about being able to trace meat’s origins and no claims were made that all pigs were outdoor reared.
This adjudication shows the ASA taking a pragmatic approach to such schemes, realistically acknowledging that the monitoring of quality schemes is not infallible, and focusing on the key message in the ad in assessing whether the ad was misleading.
- Organic Trade Board t/a Organic UK Food, 16 October 2013
A poster on the London Underground promoting organic milk had an image of two cows with a speech bubble next to each. The first read “This latest high-protein diet is amazing, hun. You must try it.” The other read “No thanks, love, I’m organic. I only do natural.” Text underneath the image stated “They may look the same, but organic cows eat a much more natural diet that’s at least 60% grass, roughage or forage, guaranteed. You get what you pay for, so buy something organic today. Organic. Naturally different”.
Complaint / Decision
The complainant, who believed that many non-organic dairy cows had a diet of over 60% grass, roughage or forage, challenged whether the claim “They may look the same…guaranteed” was misleading.
The ASA did not uphold this complaint.
Organic Trade Board t/a Organic UK Food (“OTB”) responded that EU rules governed the amount of forage an organic cow must eat: 60% of their dry matter intake must consist of roughage, fresh or dried fodder or silage. OTB noted this legally binding standard and that the annual inspection of feeding regimes ensured compliance with the standard. In contrast, there was no minimum requirement in relation to non-organic dairy cows.
Measured by dry weight not all non-organic dairy cows would reach the 60% level. However, the ASA understood that the claim was based on dry weight rather than fresh weight because this was the basis for the relevant EU Regulation. It also considered it reasonable of OTB to base the claim on dry weight as measuring by fresh meant the figures would be skewed by the amount of water contained in grass.
The ASA concluded that consumers would understand from the claim that organic standards meant organic dairy cows were guaranteed to eat “at least 60% grass, roughage or forage”, and that it could not be guaranteed for non-organic fed dairy cows.
This adjudication in an example of the ASA deciding, in this case, against the complainant on the basis of what they considered consumers would understand by the claim, rather than focusing on the pure wording in the ad.
- Unilever UK Ltd, 2 October 2013
A TV ad for Pot Noodle showed a male actor wearing various outfits. The character was shown in a tracksuit, two different dresses, a swim suit and tutu outfit. In the latter two outfits, the character was shown with his legs wide apart. The character said, “Ever since I was little I’ve always dreamed of living an easy life. So, I married a footballer. I’ve been a WAG for 2 years now. I’m a real lady of leisure. I’ve even got my own fragrance. The scent is inspired by my greatest love, it’s hot like a fever, spicy like chilli, divine like chicken. Piri Piri by Brian.”
Complaint / Decision
Two complainants challenged whether the ad was offensive and whether it condoned and encouraged harmful discriminatory behaviour and treatment towards transsexual people.
The ASA did not uphold the complaints as it noted that the ad identified the character as “Brian” and depicted Brian with masculine features, including visible stubble, a masculine voice and body type.
The ASA considered the ad clearly depicted Brian as a self-identifying man who sought an easy life that could be achieved through the lifestyle of a WAG. The ASA concluded that viewers would interpret the ad as a light-hearted mockery of WAG culture rather than transsexual people. Whilst the ASA did appreciate that some viewers may find the ad distasteful it did not consider it likely to cause widespread offence, or condone or encourage harmful or discriminatory behaviour and treatment towards transsexual people.
This ad is consistent with Unilever’s humorous tone commonly used in Pot Noodle advertising, but where previously the ASA has found such humour to cross the line (as in the August snapshot), here it considered the humour to be on the right side of the line.
- Unilever UK Ltd, 16 October 2013
Two ads for Flora pro-activ showed a woman exercising whilst on screen text set the scene: “Real People. Real Results...Isabelle, 46 years old…”. Smaller on-screen text stated “Flora pro-activ contains plant sterols. A daily consumption of 1.5-2.4g of plant sterols can lower cholesterol by 7-10% in 2-3 weeks as part of a healthy diet and lifestyle. The ad then featured a graphic representing Flora with a voice-over stating “The plant sterols in Flora pro-activ are clinically proven to significantly lower cholesterol”. The final scene showed a tub of Flora pro-activ with on-screen text: “No other food lowers cholesterol more”.
Complaint / Decision
Two complainants challenged whether the claim “no other food lowers cholesterol more” could be substantiated.
The EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the “Regulation”) is reflected in the BCAP Code. Only health claims listed as “authorised” on the EU Register of Nutrition and Health Claims are permitted in marketing communications.
Conditions for using the authorised claim for plant sterols include communicating specific information to consumers e.g. that the beneficial effect is obtained with a daily intake of 1.5-2.4g plant sterols. The ASA acknowledged that the Unilever ads incorporated the required information.
Advertisers are permitted to reword authorised claims but only in order to aid consumer understanding and the meaning of the authorised claim must not be altered. The ASA noted that the Flora ads changed the authorised wording by omitting the following sentence: “High cholesterol is a risk factor in the development of coronary heart disease”. This sentence is part of the authorised claim. This rewording did not aid consumer understanding but in fact, in the ASA’s opinion, significantly altered the meaning of the authorised claim. The ASA concluded that the omission of this sentence breached the Code.
The ASA then assessed the statement complained of: “no other food lowers cholesterol more”. This sentence is not included in the authorised wording. The ASA considered this a specific health claim; it could therefore only be made if it were listed as authorised on the EU Register, which it was not. The ASA acknowledged the scientific evidence submitted by Unilever but considered the inclusion of this unauthorised claim to be a breach of the Code.
This adjudication highlights the strict approach that will be taken by the ASA on a claim which constitutes or includes a nutrition or health claim under the Regulation.
- Hi Spirits Ltd, 23 October 2013
A blog post on the website www.fireballuk.com headlined “WHAT UCAS DOESN’T TELL FRESHERS”, included text “Fireball makes friends – last and by no means least, if you take anything away with you from this blog then remember this: Fireball makes friends. I take it to every student affair I attend and it’s always the talk of the party. The guests love you because you’ve brought a bottle and it’s thoroughly entertaining to watch the macho boys down it like it’s water, only to realise that when we say “hot as hell”, we mean it!”.
Complaint / Decision
The Youth Alcohol Advertising Council challenged whether the ad was irresponsible because they believed it encouraged excessive drinking, and styles of drinking that were unwise, as well as implying that alcohol was a key component of the success of social events.
Somewhat surprisingly, Hi Spirits responded that before April 2013 they had not been aware that the CAP Code could apply to content created by members of the public. Hi Spirits noted that the ad had actually been removed before the ASA contacted them.
The ASA acknowledged that Hi Spirits were willing to amend their advertising and had completed an audit of their website and social media pages. Despite this, the blog text which referred to: “downing” the spirit “like it’s water”; the writer’s popularity being enhanced by “bringing a bottle of fireball”, which made friends and caused guests to “love you”; and to the drink being the “talk of the party”, caused the ASA to uphold the complaint. The ASA clearly had the difficulty in concluding that the ad encouraged excessive drinking and styles of drinking that were unwise, as well as implied that alcohol was a key component of the success of the social event.
The ASA extended the remit of the CAP Code back in March 2011 to apply to content created by advertisers themselves, as well as content created by the public, if such content is posted on non-paid for space online which is under the advertiser’s control. Most advertisers will already have adequate policies in place to monitor/regulate posts made by the public where the posts are to online space within their control e.g. a social media page or website. This is particularly important with alcohol ads, as the ASA takes a strict approach, particularly those in association with young people. Hi Spirits has now been the subject of 5 adverse adjudications this year, which are detailed in the January snapshot, May snapshot, July snapshot and September snapshot.
- WDFC UK Ltd t/a Wonga.com Ltd, 9 October 2013
A radio ad for a payday loans company, featured the popular 1950s song “Mr Sandman” with the lyrics “Mr Wonga lend me some dough. Make it the simplest loan that I’ll ever know. Give me two choices when I go on line. One for how much I want. Two for what length of time. Mr Wonga at wonga.com. You make it easy when the month feels too long. Thanks for everything you’ve done. Mr Wonga you’re my number one”. At the end of the ad, a voice-over stated, “For a short-term loan that you control, visit wonga.com. Straight talking money. Terms and conditions apply”.
Complaint / Decision
1. A listener challenged whether the ad was appropriately scheduled because she believed it was irresponsible to broadcast the ad at times when it could be heard by children.
2. The ASA challenged whether the ad, was irresponsible as it gave the impression that the process of taking a high interest loan was one that could be taken lightly.
The ASA did not uphold the first complaint. Instead it noted that although the ad had been broadcast at times when children were likely to be listening, a payday loan service was only available to those over 18 years of age and the nature of the service prevented children, who may have heard the ad from acting upon the offer.
However, the ASA its own challenge. It noted the light, breezy, sing-along music but considered the style of the song itself unlikely to give the impression that taking out a high interest loan was a decision that could be taken lightly. The ASA thought it was clear that most of the claims in the ad were referencing the efficiency of the application process. Nevertheless, the ASA expressed concern that the claim “you make it easy when the month feels too long” gave the impression that a high interest, short-term loan was something that could routinely be taken between paydays in order to supplement a monthly income; further, that this claim gave the impression that this financial commitment did not require a great deal of consideration; which was compounded by the claims about simplicity of process. The ASA therefore concluded the ad was irresponsible.
This adjudication is an example which demonstrates that the ASA is willing, and does, make complaints in its own capacity.
The ASA continues to scrutinise payday loan complaints, especially if they promote irresponsibility when borrowing or lending money in advertising. The issue of payday loans was identified by the ASA as an “in the news” item at the beginning of October 2013 and CAP also published guidance on payday loans and social responsibility on 1 October 2013.
Claims highlighting efficiency of process in payday loan ads are not necessarily contentious (as they were in the Cash Lady adjudication in July), but if used in combination with an impression that loans are suitable routinely to supplement a monthly income without much consideration. they are unlikely to be acceptable.
- Inspop.com Ltd t/a Confused.com, 16 October 2013
A TV ad for Confused.com, a car insurance comparison website, featured a robot knocking on the window of a parked car. The man, seated in the driving seat of the car was startled and the woman, seated in the passenger seat, who had been bent down out of view, sprang upright. The robot said “I’ve run your details…resulting in a saving of £225 on your car insurance”. The man said, “That’s alright, that is” to which the robot responded “Who is our daddy?”. The man replied “I don’t know”.
Complaint / Decision
The ASA received 137 complainants regarding this ad.
1. The majority of complainants objected that the ad was offensive, because they believed there was implied reference to oral sex.
2. A number of complainants objected that the ad was unsuitable for children to see.
3. A small number of complainants objected that the ad was offensive, because it was degrading to women.
None of these issues was upheld as breaching the BCAP Code.
1. The ASA noted on close inspection that the woman was shown to rise from the footwell on her side of the vehicle and acknowledged complainants’ concerns that the ad included an implied reference to oral sex. The dishevelled appearance of the couple; the positioning of the woman; the surrounding location; and the reaction of the couple added to this impression. However, there was no explicit reference to sex and no explicit sexual imagery. Whilst the ASA accepted that some viewers might find the ad distasteful, it considered the ad unlikely to cause serious or widespread offence.
2. The ASA considered the post 21:00 timing restriction applied as being appropriate because no explicit reference to sex or sexual imagery was included, and this restriction would sufficiently minimise the risk of younger children seeing the ad.
3. The ASA did not consider that the ad depicted the woman as a sexual object, nor did it suggest that the woman was in distress. On this basis the ASA concluded the ad was not degrading to women.
Ads which are considered by some to be offensive are those which tend to attract the largest numbers of complaints. However, as shown by this adjudication, the ASA often takes a more robust view with regard to these complaints.
HOLIDAYS AND TRAVEL
- Hilton International Hotels (UK) Ltd, 23 October 2013
A website for Hilton Hotel’s loyalty scheme included a web page headed “EENY, MEENY, MINEY…MINIBREAK. BOOK EARLY AND SAVE UP TO 20%. Choose from over 290 hotels, across 54 countries and stay from only £65 this spring”. A price grid underneath displayed hotel names and prices along with “BOOK NOW” buttons. This grid included “Bed and Breakfast prices from…”. Small print at the bottom of the page stated “Terms and Conditions. Subject to availability at participating hotels…Prices featured are Advance Purchase rates…”.
Complaint / Decision
The complainant challenged the availability of rooms at the advertised “from” prices.
The ASA noted that Hilton could show the number of rooms sold at the “from” price but could not identify or substantiate the number they had made available at the “from” price during the time the ad appeared. The ASA noted that consumers would expect a reasonable number of rooms to be available at the “from” price during the period for which the ad was live. The complainant said they had tried to book at the advertised rates over a period of several months, but had been unable to find rooms at the advertised “from” prices.
The ASA also assessed an additional point. The ad said that a customer could book early and save up to 20% but did not state that the advance purchase rates applied to a specific period only. Consequently, consumers would expect to be able to find rooms at the stated “from” price when booking stays for the foreseeable future. Hilton was able to demonstrate that over 10% of bookings made during the period for which the ad was live for stays up to the end of January 2014 were at the “from” price or less. However, as the rate reduction in the ad appeared to apply to an ongoing period the ASA considered that this data only represented a fraction of the total rooms available.
The ASA upheld this complaint because Hilton could not show that at least 10% of the relevant hotel rooms had been available at the “from” price even though they could show that 10% of bookings were so made.
This adjudication is an example of the ASA adopting a strict approach towards the interpretation of sales promotions.
- Deutsche Lufthansa AG t/a Lufthansa German Airlines, 30 October 2013
A press ad for flights with Lufthansa, seen in late April and May 2013, stated “Europe one way from £59*. Book online”. The asterisk linked to small print running vertically up the side of the ad which stated “Economy Class one-way fare to selected German destinations, including taxes…”
Complaint / Decision
1. The availability of flights to Europe at the advertised price of £59.
2. Whether the ad was misleading because it did not state the departure and destination points or the travel period relevant to the quoted fare which it considered material information.
The ASA upheld both complaints for the following reasons.
1. As the ad stated “Europe one way from £59” the ASA considered consumers would expect the fare to be available for flights from the UK to a range of European countries. In order to substantiate the claim, Lufthansa would need to provide availability data relating to flights to multiple European countries. The availability data provided related only to flights from the UK to Germany. The asterix in the ad linked the claim to small print which stated “Economy Class one way fare to selected German destinations”. The ASA decided this qualification contradicted the impression given by the reference to “Europe”. The ASA stated the headline should have referred to fares to Germany alone.
The availability of low fares to Germany was less than 10% in May and June when the ad first appeared. The ASA considered that many consumers would expect a reasonable level of availability of the £59 fare at the time the ad appeared. The ASA were concerned by the low availability of the fare during the first two months of the campaign and decided that this, as material information, should have been clearly stated.
The data supplied by Lufthansa showed the combined availability of the fare across six routes to Germany. The ASA noted that such collective data would not show if in fact availability was extremely limited on some individual routes. The ASA required evidence relating to the availability on each individual route to substantiate the claim.
The ASA concluded that the availability data was not sufficient to support the “Europe” claims because (i) the data only applied to flights to Germany; and (ii) Lufthansa could not show that a sufficient proportion of seats were available on those routes.
2. The ASA explained that information regarding a travel period does not need to be included in an ad unless its omission is likely to affect a consumer’s understanding of, and response to, the promoted fare. As no travel period was stated in the Lufthansa ad, the ASA considered that consumers would expect the fare to be available at any time they saw the ad. Lufthansa explained that the offer related to a year-round fare. Were it not for its concerns regarding availability evidence (particularly in relation to the first two months of the campaign) the ASA said it was satisfied that the omission of a stated travel period would not materially affect the consumer’s response.
The omission of departure and destination information was not necessarily misleading, but the ASA did decide that consumers seeing the ad as it stood would expect to be able to book tickets to a variety of locations. The ASA noted that the claim should have referred to Germany rather than Europe and that the small print was not an appropriate medium to “clarify” this. The ASA was satisfied that the fare was available to a reasonable distribution of German destinations and reasonable distribution of English departures and that therefore the omission of specific departure and destination points was unlikely to have influenced consumers’ response to a revised claim of “Germany one way from £59”.
The ASA considered that had the claim not referred to “Europe” that the omission of a travel period and destination/departure locations would have been acceptable, but in this context it was misleading.
Promotions including “from” prices are likely to attract complaints and remain a regular feature of ASA adjudications. Advertisers should take note from this adjudication that the ASA may require evidence of availability on each route rather than collective data to substantiate a claim.
- National Theatre of Scotland, 23 October 2013
A poster, a bus poster and a leaflet for the Dundee Rep Theatre advertising a play about a bullied 12-year-old boy’s friendship with a vampire child, attracted complaints but none was upheld.
The poster featured a large picture of the head and shoulders of a young child with vampire fangs, bloodshot eyes and with blood running from her eyes, nose and mouth. Text stated “NATIONAL THEATRE OF SCOTLAND…LET THE RIGHT ONE IN”. Underneath, text stated the dates of the production run and box office details. The bus poster and leaflet featured cropped or close ups of this image.
Complaint / Decision
A complainant challenged whether the posters and leaflet were unsuitable for display where they could be seen by children.
The ASA understood that the image was central to the play and acknowledged the National Theatre of Scotland’s (“NTS”) argument that the use of fangs and blood was to convey the subject matter of the play and were stereotypical of vampirism. NTS aimed in particular to attract young people who would not typically attend the theatre, and schools and young people with an interest in the popular vogue for vampire narratives. The ASA understood the reasons why the image might appeal to some older children, given the plethora of vampire TV programmes, films and books popular with that age group.
The ASA also concluded that, although some younger children might not understand the images, it did not consider the posters particularly frightening or disturbing, and they were therefore unlikely to cause harm or distress to children and were suitable for public display. The ASA considered the leaflet, although visually striking, less arresting than the larger and full image in the poster and less likely to gain attention from children. Although some children might see it and pick it up, the leaflet was unlikely to be particularly appealing to them so as to encourage them to do so. For these reasons the ASA also concluded that the leaflet was unlikely to cause harm or distress to children.
The ASA made a pragmatic assessment of this ad, considering current popular culture and the ad’s purpose in arriving at its decision.
- Chessington World of Adventures Operations Ltd, 30 October 2013
A TV ad for a ride at a theme park showed two children waking up in bunk beds in the middle of the African plain before running to climb into a truck. A dramatic voice-over stated “Chessington World of Adventures presents, new for 2013, a ride into the wild. ZUFARI”. The truck was shown driving past zebras, a giraffe, antelopes and a rhino in their natural habitat. The voice-over then stated “Expect the unexpected” and a tree fell in front of the truck forcing the driver to stop suddenly and proceed down an “off road” track. The truck was shown driving over a sign stating “Danger! Cave” and heading towards the mouth of the cave. The ad ended with an animated logo and a voice-over stating “Go wild at Chessington World of Adventures Resort.”
Complaint / Decision
The complainant, who had gone on the ride with her child, challenged whether the ad was misleading on the basis that it could lead to children having unrealistic expectations of the experience of the ride.
The ASA understood that the complainant felt that the animals and setting depicted in the ad did not match the experience of the ride and noted that the ad contained very little footage of the actual ride. However, the ASA was satisfied that the ad was visibly set in Africa and was intended to be viewed as a fantastical depiction of the experience rather than a literal portrayal of the ride. The ASA was also satisfied that the animals featured in the ad also featured as part of the ride. Overall the ASA concluded that the portrayal of the ride in the ad was unlikely to lead to children having unrealistic expectations of the experience and therefore did not uphold the complaint.
The ASA did note in its assessment of this ad that more footage of the ride featuring in the ad could have helped viewers understand what could be expected from it.
This is an example of the ASA accepting an image as being sufficiently fantastical to avoid being upheld as misleading.
- Debenhams Retail plc, 9 October 2013
A TV ad for Debenhams featured a voice-over which stated “The Debenhams’ Half Price Sale. With fabulous savings.” Accompanying on-screen text stated “fabulous savings”. The names of several departments were also displayed on screen.
Complaint / Decision
The complainant challenged whether the claims were misleading as they understood that many items were reduced by less than 50%.
Debenhams responded asserting that the promotion complied with BIS Pricing Practices Guide (the “Guide”). The Guide recommends that notices such as “half price sale” should not be used unless the maximum reduction quoted applied to at least 10% of the range of products on offer at the commencement of the sale.
The ASA noted that the Guide is not binding on traders, the Courts or the ASA but that it is to be taken into account. The ASA noted that the ad referred to various Debenhams’ departments. This, in conjunction with references to the “half price sale” and “fabulous savings”, the ASA considered would lead consumers to understand that a half price sale was available at Debenhams in the departments referenced. The ASA considered consumers would understand that a reasonable number of items within the product ranges were available at the maximum discount of 50%. Because the maximum reduction of 50% here applied to over 10% of the range of products on offer in each department, and the store as a whole, the ASA concluded that the ad was not misleading. On this basis, the ASA did not uphold the complaint.
Advertisers should always take the Guide into account when planning promotions. Although the Guide is regarded as guidance and, strictly speaking, is not binding, the ASA will usually expect advertisers to comply with the Guide, unless they can demonstrate good reason for not doing so.
- B&Q plc, 16 October 2013
A B&Q offer began on 22 March 2013 and was due to run until 25 April 2013.
An in-store flyer for B&Q showed photographs of fitted kitchen and bedroom furniture and stated “Friday 26th April – Thursday 9th May”. A national press ad for B&Q showed the same photographs but stated “20% OFF…OFFER EXTENDED, ENDS 9TH MAY”.
Complaint / Decision
Homebase challenged whether the promotion was misleading and had been conducted fairly because the closing date had been extended without good cause.
The ASA noted that the original ad stated the original offer dates of 22 March – 25 April 2013. Although it did not state them in conjunction with explicit calls to action such as “hurry”, it nevertheless suggested that to take advantage of the 20% off offer, customers needed to take it up by the original 25 April end date. B&Q extended this offer period as stated in the ads complained of. The CAP Code makes clear in rule 8.17.4.e that changes to offer closing dates must only be made as a result of circumstances outside an advertiser’s control which make it unavoidable. The Code further prescribes that where a closing date is changed, promoters must do everything reasonable to ensure that consumers who participated within the original terms are not disadvantaged. Because the end date had been extended, the ASA considered that customers who might have hurried to make a decision to take advantage of the offer before the original end date had been disadvantaged. Further, the ASA considered B&Q’s reason for extending (a lower than expected number of sales) not “unavoidable” and therefore insufficient to satisfy compliance with rule 8.17.4. For these reasons the ASA concluded that the ad was misleading and upheld the complaint.
Advertisers must only extend an offer when external circumstances make it unavoidable and even then must be aware that such an extension may be perceived by the ASA as disadvantaging those customers who hurried to make a decision in accordance with the original timeframe.
- ASDA Stores Ltd, 30 October 2013
A TV ad for ASDA featured a female school-crossing patrol officer daydreaming and thinking to herself, “Start at the market for veg…Urgh…Wouldn’t it be great if the low prices came to me?”. The voice-over stated, “it is that simple with ASDA’s grocery home shopping. We deliver direct to your door plus we’re 10% cheaper or we’ll give you the difference, guaranteed. On screen text shown throughout the ad stated “Minimum £25 spend Delivery charges & restrictions apply. Terms and conditions see ASDA.com…Min 8 different grocery items. 1 comparable. 10% cheaper or a difference via vouchers. Terms and conditions apply”.
Complaint / Decision
The complainant challenged whether the 10% cheaper guarantee was misleading because they understood it was limited to ten claims, per household, per month including claims made in-store.
The ASA noted that the 10% cheaper claim compared the price of online shopping at ASDA to the price of online shipping at other major supermarkets where customers could shop online. This was made clear through the listed advantages of online shopping along with on-screen text which named the supermarket websites against which the offer was made. The comparison was further explained in on-screen text which stated that it was based upon a minimum £25 spend on a minimum of eight items, one of which needed to be comparable with items sold at competitor online supermarkets.
The ASA noted that the number of individuals who submitted enough valid money-back vouchers to exceed the stated limit of 10 per household per month was typically 0.00001%. The ASA therefore considered this offer condition only likely to affect a very small number of consumers and not a significant condition that needed to be included in the ad. The ASA therefore concluded that the ad was not misleading and did not uphold the complaint.
Although advertisers must inform consumers of any limitation to an offer, the percentage of consumers affected by the limit in this instance was so minimal that ASDA did not need to include it in their ad. Instead the direction to the ASDA Ts&Cs in this ad was sufficient to notify consumers that further terms applied.
- Argos Ltd, 30 October 2013
A promotion on www.argos.co.uk stated “save up to 20% on all Refrigeration”. Underneath that text, products were listed with their original and discounted prices.
Complaint / Decision
The complainant believed that some items in the Refrigeration range were not discounted and so challenged whether the savings claims were misleading and could be substantiated.
The ASA noted that some items were not displayed with a discount or savings message but that all the products in the refrigeration range had been reduced and that more than 10% of the range was reduced by 20%. Although text in the ad informed consumers that the prices listed already included the discount applied, the ASA considered that consumers would need to know what discount applied to each product in order to make an informed choice about which product to select.
The BIS Guidelines (referred to above) recommend that the price used as a basis for a comparison should be the most recent price available for 28 days or more unless the basis of the comparison was made clear in the ad. The ASA noted that the higher price for some products had been available for 14 days prior to the offer. The absence of this time period from the Argos ad meant that the basis of the price comparison on those products was not clear.
The ASA upheld this complaint because the ad did not display the discount applied to each product and it did not state the basis of the price comparison on products which had not been offered at a higher price for at least 28 days. The ASA concluded that the claims were misleading.
Advertisers should ensure that where promotions refer to discounts on “all” products, all products should display a savings message and the basis of price comparisons made on discounted products must be clear where the higher price was not the most recent price available for 28 days or more.
This is another example of the ASA following BIS Guidelines in making its decision.
- Beats Electronics International Ltd, 9 October 2013
A TV ad promoted Beats Pill speakers. The ad featured Robin Thicke performing his now infamous single “Blurred Lines” and three female models.
The ad opened with a close-up shot of one of the women holding the Beats Pill against her chin as she mimed the words to the song. Throughout the ad the women were shown wearing crop tops and hot pants as they danced and interacted with Robin Thicke and the product. In various scenes the women were shown: lifting Beats Pills as dumbbells; holding a Beats Pill in a hotdog bun; looking through two Beats Pills as if they were binoculars; and dressed as nurses pushing a Beats Pill on a trolley. The final scene was of one woman kneeling on her hands and knees with the Beats Pill on her back.
Complaint / Decision
The ASA received 97 complaints challenging whether the ad: (1) was offensive as it was sexist, objectified women and was degrading to women; (2) was inappropriate to be broadcast at a time when children would be watching; and (3) featured models who were irresponsibly thin.
The ASA upheld only the complaint in relation to the second issue.
1. The ASA noted that the ad intended to be playful and comic, its content was based on the “Blurred Lines” music video, and it intended to show the portable and convenient nature of the Beats Pill product. The ASA did consider a number of scenes sexually suggestive, notably: the hotdog, dumbbells, and nurses outfit scenes. The ASA also noted that in comparison to a fully clothed Robin Thicke the women wore comparatively little. The women were often looking directly at the camera, pouting or putting their fingers near, or to, their mouths and the final scene featured a provocative position. Although the ASA acknowledged that some viewers may find elements of the ad distasteful, in particular the shots where the women’s heads were obscured (i.e. focusing on their bodies). Despite this acknowledgment, the ASA noted that these shots were brief and when taken as a whole the ad did not show sustained, overtly sexual or provocative behaviour. The ASA also concluded that most viewers would understand that it was reflective of a music video and consequently did not uphold the complaint.
2. The ASA upheld this second complaint. Whilst the ASA acknowledged Beats’ and Clearcast’s belief that the ad was only mildly sexual in nature, and that children would not understand the mild innuendo associated with the shape and use of the product in the ad, the ASA disagreed. The ASA noted that the ad did not contain any explicit nudity or intimate interaction between characters, but did include shots focusing on the women’s headless bodies and a number of sexually suggestive scenes. The ASA decided that the overall tone of the ad was sexual. The ASA therefore concluded that the ad was not suitable for broadcast before 7.30pm.
3. The ASA acknowledged that all the women featured in the ad were slim, and that the outfits they wore, coupled with shots of their bodies, the dancing and working out scenes did emphasise their body shape. However, the ASA considered that the ad was stylised and reflective of the characters and images generally seen in music videos and that the models did not look underweight. The ASA did not uphold this complaint.
The ASA will consider an ad as a whole when assessing whether it is degrading to women. The ASA can be relatively strict in relation to provocative content but much will depend on targeting and scheduling of the ads. Here the key issue was the scheduling, rather than the content as a whole.
- British Sky Broadcasting Ltd t/a Sky, 9 October 2013
A direct mailing from Sky included a letter and a booklet. Text on the envelope stated “Let’s give Virgin Media a call and see what happens”. The booklet was presented in the style of a conversation between a customer and Virgin Media’s customer services. Text in the booklet stated “so this super-super fast broadband I’ve got is always going to stay that way, right?” The response stated “Well that depends. We do have a traffic management policy”. Text on the next page of the booklet stated “At Sky, when we say our broadband usage is unlimited, that exactly what we mean...you can download whatever you want without worrying about usage limited. Ever.
The conversation continued: “Do all your movies and sports channels come in HD? I like my stars to shine”. The response stated “Not exactly. But we do have a couple of sports stars in our ads”. Text on the next page of the booklet stated “We’ve also got more HD channels than anyone else…its easy to see that we’ve got the most HD channels around...”
The conversation then stated: “I’ve just bought an amazing new 3D TV. Can’t wait to try out the dedicated 3D channel.” The response stated “Sorry, we don’t have one of those.”
Complaint / Decision
Virgin Media Ltd (VM) challenged whether:
1. the ad misleadingly exaggerated the effect of VM’s traffic management policy;
2. the ad misleadingly implied that the majority of the sports and movie channels provided by VM were not available in HD;
3. the ad misleadingly implied VM customers were unable to watch live 3D programming, which was untrue; and
4. the ad was denigrating to the VM brand by presenting an overly negative portrayal of the service its customers received.
The ASA acknowledged VM’s comments that their traffic management policy (the “Policy”) affected only a small percentage of their customers and that they did not reduce the speed of the service received by customers on their 60Mb and 100Mb services to below 30Mb – the speed at which broadband was described as “superfast”.
The ASA noted that the following page made clear that Sky did not implement a traffic management policy. The ASA considered that consumers would understand the question and response in the ad to mean that those customers receiving VM’s superfast services (namely those with speeds above 30Mb) were likely to have the speed of their service reduced to below 30Mb as a result of the Policy. As the ASA understood this not to be the case, it concluded that the ad misleadingly exaggerated the effect of the Policy.
2. Not upheld.
The ASA believed that consumers would understand the question “Do all your movies and sports channels come in HD?” and the response “Not exactly” to mean that not all of VM’s sports and movie channels were available in HD and that Sky offered more channels in HD than their competitors. However the ASA did not consider that the ad implied that the majority of the sports and movie channels provided by VM were not available in HD.
3. Not upheld.
The ASA noted that customers would understand the proposition “Can’t wait to try out the dedicated 3D channel” and the response “Sorry we don’t have one of those” to mean that the VM service did not include a channel dedicated to live 3D programming. As a result the ASA did not consider the ad implied that VM customers were unable to watch live 3D programming.
In addition to the exaggeration of the effect of VM’s Policy, the ASA considered that the presentation of the ad was in such a manner that went beyond a robust and objective comparison of the services offered by Sky and VM and in fact denigrated VM’s brand.
The ASA takes a strict approach to the denigration of an organisation, whether a competitor or, in certain instances, a regulator (as in the Iceland Foods Ltd adjudication in the August snapshot). Comparison ads remain a regular feature of adjudications and are likely to attract complaints from competitors. This adjudication shows this whilst true and fair comparisons are acceptable, exaggerations of a competitor’s failings are not. Of course, any complaint with regard to a competitor must now be addressed first in direct correspondence between the parties to try and resolve the complaint.
- Virgin Media Ltd, 30 October 2013
Claims made on the “Broadband” section of the Virgin Media website stated “the faster your broadband speed, the more you’ll be able to do online…Unlimited downloads. Download and browse as much as you like with no caps and no hidden charges.”
A press ad stated “Half price for 6 months…£7.25 a month…Broadband…’Unlimited downloads’1’ – with no caps or hidden charges”. Small print stated: “Broadband:1 Acceptable use policy applies. Heaviest users’ download speeds may also be affected by traffic management measures from 4pm to 9pm and 10am to 3pm.”
Complaint / Decision
British Sky Broadcasting (Sky), British Telecommunications plc (BT) and 20 public complainants challenged whether the “unlimited” claims in both ads were misleading and could be substantiated. Sky also challenged whether the claim “no caps” misleadingly implied that there were no provider-imposed restrictions on a customer’s ability to download data.
The ASA upheld both complaints for the following reasons.
The ASA considered the statements made in the ads referring to unlimited downloads to be strong claims about the services advertised and that consumers would expect a service described as “unlimited” not to be unduly restricted by provider-imposed limitations, and that where policies which limited speed of access did exist, these restrictions should only be moderate.
Virgin Media (VM) argued that their Traffic Management Policy (TMP) was consistent with the average general slowdown experienced by consumers using the internet in peak hours. They supported this argument with a uSwitch report. Although the ASA considered the nature of this evidence suitable it was concerned about VM’s methodology. VM only tested line speeds from each participating IP address once; this did not allow for a comparison between line speeds at peak and off peak times for that IP address. Also of concern to the ASA was the fact that the VM line tests were carried out using the uSwitch website which included a self selecting sample. This could result in a biased sample. The ASA considered testing each IP address once insufficient to demonstrate a consumer’s experience of general slowdown in speed throughout the day. It subsequently concluded that this evidence could not support an “unlimited” claim for a service, subject to the VM TMP.
The ASA reviewed Ofcom’s report on consumers’ experience of broadband speed in peak hours. This report measured the maximum speed, average 24-hour speed and peak hour speed (defined as 8pm till 10pm) experienced. The ASA considered that consumers were more likely to base their expectations of a service advertised as “unlimited” on the actual variations in speed experienced by the consumer during the day rather than a headline speed stated by the provider in an ad. Ofcom carried out its tests on 2000 participants each of which was subject to 14,000 tests a day, carried out throughout the day. The ASA considered this data more robust than that of the uSwitch sample.
The Ofcom report showed a slowdown of maximum speed of between 6% and 16% (this equated to an average slowdown across all technologies of 10%). The VM TMP saw speed reduced by 30% (with a potential maximum of 40%) which the ASA did not consider “moderate”. The ASA therefore considered that the small print in the VM ads which referred to the TMP contradicted rather than clarified claims that the service was “unlimited”. The ASA therefore concluded that the claims had not been substantiated and were misleading.
Further, the claims made in the ad such as “download as much as you like” were likely to be interpreted by consumers to mean that there were no provider-imposed limitations. Although there was no ceiling on the amount of data VM customers could download, a provider-imposed limitation on their services nevertheless applied. Because this limitation affected a customer’s experience of using the “unlimited” service in a way that was contrary to a consumer’s expectation, the ASA concluded that the claim “no caps” was misleading.
Advertisers cannot claim that their services are “unlimited” and have “no caps” unless any restrictions which are imposed are “moderate”. A CAP help note “Use of ‘unlimited’ claims in telecommunications advertising” provides guidance on what the ASA is likely to consider as “moderate”. This note states that: consumers should be able to carry out lawful online activities, e.g. stream content, at or close to the consumer’s normal connection speed; where download speed is affected this should not go beyond what consumers would reasonably expect from the service; and if a provider can demonstrate that the effect of a TMP is not dissimilar to the general slow down experienced, the restriction is likely to be considered moderate.
- TalkTalk Telecom Ltd, 30 October
An ad on TalkTalk’s Facebook page stated “TalkTalk invites you to our Hottest Half Price Event ! TV, broadband, fibre and calls Half Price for 6 months, from only £7.75 a month”.
Complaint / Decision
The complainant challenged whether the claim “£7.75 a month” was misleading because he understood that a charge of £15.40 a month for line rental also applied.
TalkTalk admitted that internal guidance had not been followed in this instance and said it would update the ad. The ASA upheld the complaint, finding the ad misleading because a consumer would believe that the package would be £7.75/month when in fact an additional charge of £15.40 would also be applied to the bundle.
Advertisers must always take care to disclose all costs associated with an offer to avoid misleading consumers. CAP issued a help note “Price claims in telecommunications marketing” which states that price claims should not exaggerate the extent of the benefit and specifically, that if line rental applies to an offer, it must be quoted clearly.
- Home Office, 9 October 2013
A poster for the Home Office, which was displayed on the side of vans driven through six London boroughs, featured a close-up image of someone holding a pair of handcuffs and wearing a uniform with a badge which stated “Home Office”. A yellow box in the top left hand corner featured black text which stated “In the UK illegally?”. Green text to the right, in the style of an official stamp stated “106 ARRESTS LAST WEEK IN YOUR AREA*”. Underneath, text stated “GO HOME OR FACE ARREST Text HOME to XXXXX for free advice, and help with travel documents”. A white box along the bottom of the poster included small print at the left-hand side which stated “*30 June-6 July 2013 covering Barking and Dagenham, Redbridge, Barnet, Brent, Ealing and Hounslow”. Next to that, larger text stated “We can help you to return home voluntarily without fear of arrest or detention”.
Complaint / Decision
The ASA received 224 complaints (including some from groups which represented migrants in the UK, legal academics and the Labour peer Lord Lipsey) which challenged whether:
1. The poster, in particular the phrase “GO HOME” was offensive and distressing because it was reminiscent of slogans used by racist groups to attack immigrants in the past; and
2. The poster was irresponsible and harmful, because it could incite or exacerbate racial hatred and tensions in multicultural communities.
3. The claim “106 ARRESTS LAST WEEK IN YOUR AREA” was misleading and could not be substantiated.
4. The qualification contained in the ad’s small print was unclear because it was written on a moving vehicle so could not be read easily.
5. The poster was misleading because it implied that arrest was the automatic consequence of remaining in the UK without permission.
The ASA upheld only complaints no. 3 and no. 4.
In relation to complaint no. 3, the ASA considered those who saw the poster would understand this claim to mean that during the previous week 106 people in the area in which they saw the poster, had been arrested under suspicion of being in the UK illegally. The ASA considered the claim “in your area” to relate to, at the minimum, the locality of the person when they saw the poster and at the maximum to the London borough in which they saw the poster.
However, the claim was based on data which related to a significant part of London north of the Thames rather than to specific areas in which the poster was displayed. Further, the data did not relate to the week prior to the campaign. The ASA noted that the posters were displayed between 22 to 28 July, yet the data related to the week 30 June to 6 July, the last day of which was over two weeks prior to the first day of the campaign. The ASA therefore concluded that the claim was misleading and had not been substantiated.
In relation to complaint no.4, the CAP Code requires marketing communications to state significant limitations and qualifications, and that such qualifications are presented clearly. The ASA considered the information relating to the dates and areas to be significant qualifications.
The ASA noted that the Code does not specify a minimum point size for small print in posters. In this regard the ASA considered that small print should be clearly visible to a normally sighted person, reading the marketing communication, once, from a reasonable distance, and at a reasonable speed. The ASA noted that the poster was displayed on a moving vehicle, and therefore many who saw it would have only a limited time in which to read all the information. The ASA flagged that the size of the font used in the qualification here was significantly smaller than any other text in the poster and appeared to be half the size of the text next to it. In this instance the ASA concluded that the size of the font used, its prominence in relation to other information in the poster, and the limited time in which those who saw the poster would have to read it meant that it had not been presented sufficiently clearly and was therefore misleading. The ASA upheld this complaint.
In relation to the other aspects of the complaints, the ASA regarded the statement “In the UK illegally” made clear that the poster was directed at illegal immigrants rather than at non-naturalised immigrants who were in the UK legally, or UK citizens. Also, although reminiscent of slogans used in the past to attack immigrants to the UK, here appeared as part of a longer claim in which the words “GO HOME” were not emphasised. As a result the ASA considered that in context the claim would be interpreted as a message regarding the immigration status of those in the country illegally which was not related to their race or ethnicity and was therefore unlikely to cause serious or widespread offence or distress.
As the vans had targeted London boroughs which had either a very low or above average uptake for voluntary departures and were primarily driven through areas in which illegal immigrants were known to congregate, the ASA concluded that the poster was unlikely to incite or exacerbate racial hatred and tensions in multicultural communities, was not irresponsible and did not contain anything which was likely to condone or encourage violence or anti-social behaviour.
Finally, the ASA considered that the poster implied that those who were in the UK illegally were at risk of arrest under suspicion of committing an immigration offence, but that there was an alternative option for those who wished to return home voluntarily. Although some in the UK without permission might have a legitimate right to remain, there was a risk of arrest pending investigation, and the ASA therefore did not consider the ad to be misleading in this respect.
This adjudication attracted a lot of media publicity on the basis of aspects of the ad which were upheld. Although political in nature, the adjudication does demonstrate the need to take care in formulating claims and includes some useful reminders in relation to font size.