This summary provides a selection of the most interesting ASA adjudications in October, highlighting the key issues considered in those adjudications.  This month the ASA presented two adjudications on tooth-whitening toothpastes, highlighting the need for advertisers to hold robust, scientific evidence substantiating their claims before marketing communications are distributed (see adjudications on Purity Laboratories Ltd and Church & Dwight UK Ltd).

The ASA also provided two contrasting adjudications on advertising campaigns which were challenged for degrading women.  In Britvic Ireland Ltd, a complaint against an advert reflecting sexist attitudes was not upheld as the advert was clearly an “over-the-top” satirical spoof.  In National Express Group t/a Eurolines, however, adverts for travel to Europe featuring an image of a can-can dancer were held to be likely to cause widespread offence.

The Committee of Advertising Practice (CAP) has released new guidance on Sales Promotions, and, in particular, on Significant Conditions in Sales Promotions. The guidance states that advertisers should take care to include any major factors which would be reasonably likely to influence the consumer’s decision or understanding about the promotion in the initial advertising material.  Consumers should be able to decide whether they want and are able to participate in the promotion from this initial material.  The guidance can be accessed here.

ADJUDICATIONS

FOOD & DRINK

  1. Britvic Ireland Ltd, 3 October 2012 (The ASA investigates whether an orange juice advert objectifies women)
  2. Unilever UK Ltd, 3 October 2012 (Website adverts are challenged for misleadingly implying a high level of fruit content in ice cream)
  3. Wells & Youngs Brewing Company Ltd, 3 October 2012 (An advert for Estrella beer is challenged for linking alcohol with sexual success and popularity)
  4. Marlow Foods Ltd, 10 October 2012 (A ruling on whether a failure to state that Quorn is a meat-free product was misleading)
  5. Kerry Foods Ltd, 24 October 2012 (An advert for ham receives 371 complaints challenging the use of nudity and claims of 100% natural ingredients)
  6. Procter & Gamble UK, 24 October 2012 (The ASA considers whether an advert misleadingly implies that a diet of dry cat food is healthier than other diets)

HEALTH & BEAUTY

  1. LivingSocial Ltd, 3 October 2012 (A daily-deal offering laser eye surgery is challenged for encouraging consumers to rush into a decision to undergo surgery)
  2. Purity Laboratories Ltd, 10 October 2012 (The first of two adjudications this month on tooth-whitening toothpastes)
  3. Church & Dwight UK Ltd, 17 October 2012 (An adjudication on tooth-whitening claims, highlighting the need for substantiation of claims)
  4. Boots UK Ltd, 17 October 2012 (An interesting adjudication on the use of the word “organic” in relation to cosmetics)
  5. Parfums Christian Dior (UK) Ltd t/a Dior, 24 October 2012 (A mascara advert is challenged for misleadingly exaggerating the effects of the product after post-production retouching is used)
  6. Desert Point Ltd, 24 October 2012 (The ASA investigates various claims made in relation to advertising of electronic cigarettes)

LEISURE

  1. Channel Four Television Corporation t/a Channel 4, 3 October 2012 (The ASA investigates advertisements for the TV series “My Big Fat Gypsy Wedding”, despite dismissing the complaints earlier this year)
  2. Virgin Media Ltd, 3 October 2012 (The ASA considers claims made in relation to the presence of buffering on fibre-optic broadband)
  3. Virgin Media Ltd, 31 October 2012 (Circulars advertising fibre-optic broadband are challenged for claiming to have “already connected” a street where the consumer could not in fact take advantage of the service)
  4. Time Out Group Ltd t/a Time Out, 10 October 2012 (The ASA upholds complaints against a website advertising a pub crawl for being socially irresponsible)
  5. Profitable Play Ltd, 31 October 2012 (A Facebook page for an online bingo game is investigated for being appealing to children)

RETAIL

  1. Harvey Nichols Group Ltd, 3 October 2012 (A series of adverts for the Harvey Nichols sale using images of people with wet patches on their clothing are investigated for being offensive)
  2. Philips Electronics UK Ltd, 10 October 2012 (The ASA upholds a complaint against a website where certain features of a television were not actually available to customers in the UK)
  3. Marks and Spencer plc t/a M&S, 31 October 2012 (A made to measure shirts service is investigated for being misleading as the consumer was not required to provide his sleeve length)

HOLIDAYS & TRAVEL

  1. Terravision Transport Ltd, 17 October 2012 (Claims to offer the “fastest” way to London from Stansted airport are investigated by the ASA)
  2. National Express Group t/a Eurolines, 31 October 2012 (A series of adverts featuring a woman in a can-can costume are investigated for being offensive and degrading to women)

OTHER

  1. Everything Everywhere Ltd, t/a T-Mobile, 24 October 2012 (A claim to offer unlimited free texts forever is held to be advertising puffery and not misleading)
  2. Reckitt Benckiser Healthcare (UK) Ltd, 31 October 2012 (The slogan “Washing machines live longer with Calgon” is investigated by the ASA)

FOOD & DRINK

1. Britvic Ireland Ltd, 3 October 2012

A cinema advert for a soft drink showed a woman walking across an orange grove carrying a bottle of orange drink, with her cleavage exposed.  She said “Do you like my bits?  Of course you do.  Come, let me show them to you”.  She walked through a laboratory-style room where women wearing revealing outfits were working.  She said to one, “Mmm, nice bits”, and the woman replied “Thanks, I squeezed them myself this morning”.  The women held a pair of oranges in front of their bodies as the main character said “We love bits, all bits, as long as they’re juicy and natural … We are not only interested in the size of the bits, don’t be shallow … what is important is what’s inside too – like juice.”  She then dipped her finger into an orange half and licked it.  The advert ended as two women carried wooden crates of oranges outside, with their cleavages exposed.  The main character said “And now we say goodbye.  We know you boys can’t wait to get your hands on our bits”.

Complaint / Decision

The first complainant, who saw the advert before a film with a 15 rating, challenged whether the advert was offensive and irresponsible, because it was sexist, objectified women and reinforced chauvinistic stereotypes to impressionable people.  The second complainant saw the advert before a film rated 12A.  He challenged whether the advert was irresponsible and inappropriate for children.

The first complaint was not upheld.  Britvic submitted that the campaign had been designed to target their core market of 18 to 30 year old men, and the references to “bits” were a tongue-in cheek way of highlighting to product’s key feature.  Britvic said they had tested the advert prior to its launch and received a positive response form both men and women.  However, the ASA considered that the data submitted was not sufficiently detailed to draw definite conclusions as to the public’s predicted reactions. Nevertheless, the ASA considered that, although in some respects the advert did reflect sexist attitudes, the setting and context of the advert made it clear that it was a fantasy, and the average viewer was likely to recognise it as an “over-the-top” satirical spoof, and it was therefore not likely to cause serious or widespread offence.

The second complaint was upheld.  The advert had only been approved for screening before films with a 15 or 18 rating, and had been shown before a 12A film in error.  The ASA considered that the advert was irresponsible and inappropriate for children.  However, as Britvic had acknowledged that it was shown in error and they had no further plans to use the advert in this context again, no further action was required.

The “fantasy” element of the advert, along with the restricted age range, seemed to be a key factor in the ASA’s decision that the advert was not likely to cause serious or widespread offence, despite clear sexual references.  It seems that making exaggerated and “over-the top” references may sometimes be considered less likely to cause offence.

2. Unilever UK Ltd, 3 October 2012

This adjudication concerned three adverts featured on www.loveicecream.com for Wall’s ice cream.

  1. The first advert, showing product information for the Twister lolly, contained text stating “Do the twist … Life is twisted.  So why not tangle your tongue around a Twister lolly?  Chill out with the smooth pineapple flavour ice cream and refreshing lemon-lime flavour fruit ice.  Then twist it to the max with the unexpected strawberry fruit core.  Live life your way!”  A side banner showed images of strawberries on a chopping board with the text “Love fruit”.
  2. The second advert, showing product information for Mini Twister lollies, contained text stating “An eight pack of Twister lollies in two enticing flavours: creamy pineapple ice cream and strawberry fruit ice twisted around a core of delicious strawberry fruit ice; and creamy pineapple ice cream and strawberry fruit ice twisted around a fruity core of lemon fruit ice”, next to a picture of two Mini Twister lollies and two small strawberries and two pieces of citrus fruit.  A similar “Love fruit” side banner as in advert (a) was also featured, but with peaches instead of strawberries.
  3. The third advert, reached by clicking on the “Love fruit” side banners, showed a Solero ice ream and a mixing bowl full of ice cream and fruit, with the text “What makes our ice cream taste so fruity?”.  If the bowl was clicked on, the following text appeared:  “…we combine fruit with ice cream to create a delicate balance of softness and sweetness in a light yet indulgent eating experience.”  The page also contained information about various types of fruit, a fruit horoscope quiz and a banner showing the Wall’s range of “fruity ice cream”.

Complaint / Decision

The Children’s Food Campaign (Sustain) challenged whether the adverts gave a misleading impression of the nutritional value of the ice cream range, as they implied a high level of fruit content.

The complaint was not upheld.  The ASA considered that the pages in adverts (a) and (b) showed product information but did not make any nutritional or health claims.  Unilever referred in their response to the Food Labelling Regulations 1996 and said that their description and images used complied with those regulations.  Pictorial representations of flavours are permitted provided the flavour is derived wholly or mainly from the food depicted.  Unilever said the pictures complied with this requirement.  The ASA noted this argument, and determined that the amount of fruit shown on the page was in any event relatively small, and not sufficient to imply that the lollies contained a high level of fruit content and mislead as to their nutritional value.

Unilever explained that the pages featuring the product information were designed to look like the pages of a book.  The “Love fruit” banner containing images of fruit did not form part of the page, but allowed customers interested in the Twister to click on the banner and discover the Solero range.  Unilever believed that consumers would understand that the icon was a link to other elements of the site, rather than a direct reference to the Twister lolly.  The ASA noted that the banner had a different background to the rest of the page, and considered that it was sufficiently clear that they were not intended to refer directly to the fruit content of the Twister.

In relation to advert (c), the ASA considered that it was clear that the focus of the page was the Solero ice cream and, as all the fruits shown were ingredients of at least one variety of Solero and each Solero had at least 30% fruit ingredients, the images and the text were appropriate and did not give an exaggerated impression of the fruit content.  Linking to other “fruity ice creams” which may have had a lower fruit content was acceptable.  The banner did not make any nutritional or health claims and the word “fruity” did not in itself mislead as to the fruit content of the ice creams.

3. Wells & Youngs Brewing Company Ltd, 3 October 2012

A television advert for Estrella beer opened with a man disembarking a ferry on a Spanish island.  The man approached two women sitting outside a bar drinking Estrella and showed them a map of the island.  The three characters were then shown driving around the island, swimming, sunbathing, on a boat and at a party together.  At one point the male traveller was shown carrying two bottles of Estrella on the beach.  In a later scene, the man and the dark-haired woman were trying hats on in a market, and the woman kissed the man briefly on the lips.  Other scenes showed bottles of Estrella being distributed to a group of friends at lunch, and the male character being greeted affectionately by a fellow party-goer holding a bottle of Estrella.  The advert ended with the man being dropped off at the ferry by the two women.  He kissed his finger and put it to the dark-haired woman’s lips, then walked on to the ferry and took a sip from his bottle of Estrella.  When he lowered the bottle the story began again.

The song playing throughout the advert included the lyrics “Tonight, I want to be with you”.

Complaint / Decision

Alcohol Concern challenged whether the advert breached the Code because it:  (1) linked alcohol with sexual activity, sexual success or seduction; (2) implied that alcohol contributed to the male character’s popularity; and (3) implied that the success of the holiday depended on the presence of alcohol.

The complaints were not upheld.  The ASA noted that only two scenes in the advert featured physical affection between the man and the dark-haired woman, the kiss in the market, and when he touched his finger to her lips in the final scene.  The lyrics of the accompanying music alluded to a sexual attraction.  However, the ASA considered that the interactions between the two characters did not constitute sexual activity, sexual success or seduction.  The ASA determined them to be “mildly flirtatious behaviours”, and noted that the Code does not prohibit alcohol from being linked with flirtation or romance.

In relation to the second complaint, the ASA considered that the male character was shown as confident and popular from the outset.  In addition, he was not shown with alcohol until 20 seconds into the advert, where he was shown holding two bottles of beer on the beach.  He was not seen drinking any alcohol until the final scene, having said goodbye to the women.  The ASA held that as it was established early in the advert that the man was a “confident independent traveller who was open and adept at making new friendships”, the advert did not imply that alcohol contributed to his popularity.

Regarding the final complaint, the ASA acknowledged that the advert showed an entire summer in this Spanish island.  The events were clearly separated in time and space, with the main character seen in different locations, wearing different clothes and with different friends.  The ASA agreed with Clearcast’s comments that alcohol featured in a realistic, incidental and minimal way.  None of the characters were seen drinking alcohol apart from the male character in the final scene.  In fact, in most of the scenes, alcohol did not feature.  There was no suggestion that the characters were enjoying themselves because of consuming alcohol, and the advert therefore did not imply that the success of the holiday depended on the presence of alcohol.

In this adjudication, the ASA draws a distinction between flirtation and romance, which may be linked with alcohol in advertisements, and sexual activity or seduction, which may not.  Given the somewhat subjective interpretation of what constitutes “flirtation” rather than “seduction”, advertisers are advised to err on the side of caution.

4. Marlow Foods Ltd, 10 October 2012

This adjudication concerned two television adverts for Quorn products.

  1. In the first advert, a couple were shown holding a barbecue.  A voice-over said, “You might think eating healthier means eating less of your favourite tasty food.  But it doesn’t.  Try new best ever tasting Quorn chef’s selection.  Succulent sausages and juicy burgers with only half the saturated fat of some premium sausages and burgers, and all the taste.  So for healthier babies and happier chefs, try new best ever tasting chef’s selection from Quorn”.  A packet of sausages was replaced with a packet of Quorn sausages.  Shots of the products were shown with the text “FAVOURITE MEALS, MADE HEALTHIER”.
  2. The second advert showed a woman preparing a meal.  A voice-over said, “You probably think eating less fat means you can’t eat lots of your favourite meals.  But you can, because new best ever Quorn mince has 80% less saturated fat than lean mince beef.  So even when you’re watching what you eat, with Quorn you can keep on eating all your favourite meals made healthier”.  A packet of beef mince was replaced with a packet of Quorn mince.  Shots of the products were shown with the text “FAVOURITE MEALS, MADE HEALTHIER”.

Complaint / Decision

The adverts were challenged for being misleading, because they compared Quorn products to meat but did not make clear that Quorn was a meat-free product.

The complaint was not upheld.  The ASA considered that Quorn was an established and well-known brand of vegetarian products.  Marlow Foods submitted brand awareness data in support of this in the form of survey evidence.  92% of participants in the survey were aware of the Quorn brand, and the participants had been weighted so that the proportion of vegetarians was proportional to that in the general population.  Marlow Foods did not consider it misleading to compare Quorn products to meat products, as it was a comparison with an “alternative for consumption”, as permitted under EU legislation and guidance.  The ASA considered this to be a valid and fair comparison.  It was clear which products the Quorn products were being compared to, and the meat products featured in the adverts, such as lean mince and sausages and burgers, would not be able to make similar “low in saturated fat” claims.  The advert was not in breach of the BCAP Code.

This interesting adjudication demonstrates that established brands may have less of an obligation to draw consumers’ attention to aspects of their product which are considered to be well-known facts.

5. Kerry Foods Ltd, 24 October 2012

A television advert for Richmond ham showed a man wearing only a cap, standing in a field and looking admiringly at a ham sandwich.  He walked past a group of naked people having a picnic, singing “Oh Richmond ham, as nature intended, you’ve nothing to hide Richmond ham to me you taste blooming splendid.  And I say naturally, check the pack and you’ll see, 100% natural ingredients it’s true, yes it’s Richmond’s for me.”  The advert then showed a shot of the man’s backside, and a voice-over said “New Richmond ham, Britain’s only ham made with 100% natural ingredients.”  On-screen text stated, “See richmondham.co.uk for verification.  Reviewed quarterly”.

Complaint / Decision

The ASA received 371 complaints in relation to this advert, challenging whether:

  1. the nudity in the advert was offensive;
  2. the advert was inappropriate for broadcast at times when children were likely to be watching;
  3. the claim “Britain’s only ham made with 100% natural ingredients” was misleading and could be substantiated, because the complainants understood that many local producers and butchers also made 100% natural ham products;
  4. describing the product as “Britain’s only ham” was misleading, as they believed the company was Irish and the product was made in Ireland;
  5. the claims “made with 100% natural ingredients” and “as nature intended” were misleading and could be substantiated, as they understood the product was processed and made with pork protein.

Complaints (i), (ii), (iii) and (v) were not upheld.  Complaint (iv) was upheld.  A summary of the ASA’s reasoning is set out below:

  1. The ASA acknowledged the nudity featured in the advert, which was not directly relevant to the product in question.  However, the ASA considered that most customers would interpret it as a light-hearted reference to the claim that the product was “as nature intended”.  Although it may not appeal to everyone, the ASA held that the advert was not sexual in tone and was unlikely to cause serious or widespread offence.
  2. The ASA considered that the advert did not feature anything that might harm or distress children under 16, or that would be considered unsuitable for them.  Clearcast had previously cleared the advert with an “ex-kids” restriction, meaning it should not be shown in or around programmes made for or targeted at children.  Kerry Foods had abided by this, and the ASA concluded that the advert had been appropriately scheduled.
  3. The ASA considered that consumers would interpret the claim as referring to cooked ham only, rather than air-dried ham, which the ASA accepted was often made with 100% natural ingredients.  Kerry Foods submitted data based on a market trawl of cooked ham products, which had not identified any other ham product made from 100% natural ingredients.  447 products were analysed.  The ASA accepted that the market trawl did not cover every cooked ham product available, but considered that it constituted adequate substantiation for the claim.
  4. Kerry Foods submitted that, although the product was in fact made in Ireland rather than Britain, the claim was based on the availability of the product rather than its place of manufacture.  However, the ASA considered that consumers would interpret the claim to mean the product was of British in origin, which was not the case.  The claim was therefore misleading.
  5. Kerry Foods accepted that ham is a processed product, and they therefore could not claim that the product itself was natural.  The “100% natural” claim therefore related only to the ingredients used to make the product.  The ASA accepted this and considered that Kerry Foods had shown the product was made from ingredients that could be describes as natural under the FSA’s guidelines.  The ASA concluded that most consumers would be aware that mass-produced packaged ham was a processed food, and the claims were therefore unlikely to mislead.

6. Procter & Gamble UK, 24 October 2012

A television advert for dry cat food and the website www.iams.co.uk contained the following claims:

  1. The television advert showed a cat sitting between a packet of Iams dry cat food and packet labelled “WET FOOD POUCH”.  The cat gestured towards the pouch of wet food and the voice-over stated, “Recently I learnt that water makes up 80% of cat food like this.  That’s a lot of water.  Don’t get me wrong I like water; I just prefer to drink mine.  On the other hand, I mean paw, Iams contains only 8% water and gram for gram more high quality nutrition to help me stay as fit as a fiddle.”  On-screen text read “With dry food always give your cat plenty of water.”
  2. The television advert was also shown on the website.  Text beside the video read “Wet food is ~80% water, I prefer my food not swimming in it”.

Complaint / Decision

Mars Pet Care challenged whether (1) the claim “Don’t get me wrong I like water; I just prefer to drink mine”, in the television advert was misleading, as it implied that feeding cats a diet of dry food and drinking water was healthier than other diets; and (2) “Wet food is ~80% water.  I prefer my food not swimming in it” from the website misleadingly exaggerated the presence of moisture in wet foods, and in doing so unfairly denigrated Mars Pet Care.

The complaints were not upheld.

In relation to the first complaint, the ASA considered that consumers would understand the claim to be the subjective opinion of the advertiser, rather than implying that one diet was healthier than another.  For the second complaint, the ASA determined that consumers would understand that the moisture contained in wet food was a part of the food or gravy, rather than that morsels of food sat separately within a liquid.  The advert was therefore not misleading on either point.

HEALTH & BEAUTY

7. LivingSocial Ltd, 3 October 2012

A promotion on the website LivingSocial stated “Focus Z/LASIK Laser Eye Surgery for both Eyes £1,949 … buy now!  50% SAVINGS … 18 PURCHASED … 2 days REMAINING … Give the ‘Buy Now’ button a cheeky wink before the lids close on today’s deal”.

Complaint / Decision

The complainant, who received the offer by e-mail, challenged whether it was irresponsible to offer laser eye surgery as a limited time offer as it could encourage recipients to hurry into a decision to purchase the surgery.

The complaint was upheld.  LivingSocial argued that as the deal ran for a week, consumers had sufficient time to take whatever steps they needed before purchasing the deal, and then had a further seven working days from purchasing the voucher where they could obtain a full refund.  However, the ASA considered that consumers who only saw the deal towards the end of the week in which it was offered may only have had a day or so to decide whether or not to purchase the voucher.  The additional seven day cancellation period was only available to customers who had already purchased the voucher, who, by that stage, would have already financially and mentally committed themselves to going ahead with the procedure.  As the limited time was likely to pressure consumers into a hurried decision, the ASA determined that the advert was irresponsible.

The ASA has presented several adjudications on “daily deals” websites in the past few months, where the complaints have often been upheld.  This adjudication makes it clear that some products or services are not suitable offerings for such websites.

8. Purity Laboratories Ltd, 10 October 2012

A magazine advert and a website for Beverly Hills Formula toothpastes featured various claims about the efficacy of the product.

Complaint / Decision

Church & Dwight UK Ltd challenged whether (1) the claims that the products could remove stains and result in whiter teeth in just one minute could be substantiated; (2) the claim “…removes stains in just 1 minute, with over 90% of staining removed during a 5 minute period…” was misleading, because they believed that this implied that all stains would be removed in one minute; and (3) the claims “Whiter teeth in 1 minute – Laboratory tests conducted at a leading British Dental School proved that our advanced cleaning formula removes stain in just 1 minute…”, and “A recent study conducted at Bristol University Dental School proved that Beverly Hills Formula whitening toothpaste removes stains in just 1 minute…” misleadingly implied that the tests were conducted for all of the products, when they understood this was not the case.

The complaints were upheld.

Purity Laboratories submitted stain removal data to back up their claims.  However, the full test results were not supplied, and the ASA considered that information about how the removal of stains was measured, or on what basis the “whiter teeth in just one minute” claim was made was lacking.  Although Purity Laboratories stated that they were expecting to receive a full report of the data in September 2012, which they would happily supply, the ASA concluded that they had not held the full report at the time the adverts were published, and they had failed to provide robust, scientific evidence to substantiate the claims.  The claims had therefore not been substantiated.

In relation to the second complaint, the ASA considered that as there was no qualification to clarify what degree of stains would be removed in one minute, consumers would understand that all or most stains could be removed in this time, and the claims referring to removing over 90% of staining within five minutes were therefore contradictory.  The claim was misleading.

Finally, the ASA considered that, as no particular product was referenced, the claims implied that all products had been tested at Bristol University.  As Purity Laboratories failed to provide evidence to support this, the claims had not been substantiated and were misleading.

This adjudication highlights the importance of being able to substantiate any claims made in adverts.  In particular, advertisers should be reminded of rule 3.7 of the CAP Code, which states that marketers must hold documentary evidence proving the claims before the marketing communications are distributed.  Church & Dwight, who brought the complaints against this advert, were themselves the subject of an ASA adjudication on teeth whitening claims (see below).

9. Church & Dwight UK Ltd, 17 October 2012

This adjudication concerned a television advert and a website for Arm & Hammer Advanced Whitening toothpaste.

  1. The presenter of the television advert stated, “See this, it’s baking soda, an amazing natural cleaner.  And it’s in every tube of Arm & Hammer Toothpaste.  Try this, lick your teeth.  Feel rough?  The baking soda removes this rough feeling to give you a wow deep clean and whitens teeth brilliantly.  With advanced whitening, it’s up to three shades whiter.  Or your money back.”  On-screen text at the end of the advert stated “clinically proven up to 3 shades whiter”.  The product packaging was then shown, containing text stating “ADVANCED WHITENING 3 shades Whiter Clinically Proven for BRILLIANT WHITE Teeth Long-Lasting Fresh Breath Protection”.
  2. The website www.armandhammer.co.uk was headed “ADVANCED WHITENING UNBELIEVABLY GENTLE TEETH-WHITENING”.  Additional text read “Arm & Hammer Advanced Whitening is perfect for those of you who like to keep their teeth in tip-top condition but enjoy the added benefit of a gorgeous sparkling white smile!”  The product packaging was shown, containing the same text as above.

Complaint / Decision

The adverts were challenged as to (1) whether the whitening claims made in (a) could be substantiated; and (2) whether the claim “3 Shades Whiter” in (b) could be substantiated.

The complaints were upheld.  The ASA considered that the claims in the television advert would be interpreted to mean that the product would whiten teeth, and some users would achieve up to three shades of perceptible change.  Church & Dwight provided a clinical study in support of the whitening claims, in relation to which the ASA took expert evidence.  The expert considered that a weakness of the study was that subjects had not been stratified according to whether or not there were any restorations in the teeth and that advice on beverage consumption, i.e. that drinks such as tea, red wine and cola are the main perpetrators of extrinsic staining, had not been given to ensure that the staining potential was the same for each treatment group.  He also referred to the wide range of the results, which had not been addressed by the report.

Church & Dwight had conducted both stain level and shade analysis.  All of the subjects displayed a reduction in stains in the stain level analysis.  However, the results of the shade analysis ranged from 13 shades lighter to 5.5 shades darker.  25% of subjects had darker teeth after four weeks and 18% saw no change.  The claims specifically referred to “3 shades whiter” and Church & Dwight appeared to have based the claim on the shade analysis data rather than the stain analysis data.  As the study was not sufficiently robust, and a significant proportion of subjects had displayed darker teeth or no change after using the toothpaste, the ASA considered that the whitening claims had not been substantiated.  The same applied to the claims made in advert (b).

Although Church & Dwight had clearly conducted clinical research into the efficacy of their products, the claims they made in their advertising did not strictly reflect the results they obtained.  Advertisers should be careful to ensure they have sufficient data to back up the exact claims they make in marketing materials.

10. Boots UK Ltd, 17 October 2012

Claims on www.boots.com promoting “Little Me Organics Oh So Gentle Hair and Body Wash stated “Little Me Organics Oh So Gentle Hair and Body Wash has pear, mallow & organic aloe vera to clean and moisturise your baby’s delicate hair and sensitive skin.”

Complaint / Decision

A complainant challenged whether the claims that the product was “organic” were misleading, as they implied the product met an independent organic standard.

The complaint was upheld.  Boots submitted that there was no legal definition of what constituted “organic” with regard to cosmetics.  The ASA acknowledged this, but stated that a number of independent certification bodies existed with their own organic standards.  These standards defined a product as “organic” only if it contained a high proportion of organic ingredients.  Information supplied by Boots showed that the organic ingredients in the product (the pear, mallow and aloe vera) made up less than 5% of the ingredients.  The ASA considered that the claim “Little Me Organics” would be interpreted by consumers to mean the product met an independently defined organic standard, or contained a high proportion of organic ingredients.  As this was not the case, the advert was misleading.

In its response to the complaint, Boots stated that they had taken the claims directly from the product label, simply reproducing them on its website in electronic format.  They therefore considered that this was no different to an in-store display that customers could view when purchasing the product.  However, the ASA failed to comment on this aspect of the response in their adjudication.  This issue of reproducing packaging claims on retailer’s own sites could cause some concern for retailers, given the ASA’s extended remit to websites.

11. Parfums Christian Dior (UK) Ltd t/a Dior, 24 October 2012

A magazine advert for a mascara showed an image of Natalie Portman, with a headline stating “Dior Show New Look”, along with text that read “Lash-multiplying effect volume and care mascara.  The miracle of a nano brush for an unrivalled lash creator effect.  It delivers spectacular volume-multiplying effect, lash by lash.”

Complaint / Decision

L’Oreal UK challenged whether the advert misleadingly exaggerated the likely effects of the product.

The complaint was upheld.  Dior stated in their response that Natalie Portman’s lashes had been retouched digitally in post-production, primarily to separate/increase the length and curve of a number of lashes and replace/fill missing or damaged lashes, the primary element being to lengthen and curve the lashes.  The ASA acknowledged that the advert had therefore used post-production retouching on an area which was directly relevant to the performance of the product advertised.  Dior also submitted that the text in the advert did not contain any claims regarding the lengthening of lashes, and only a minimal amount of retouching had taken place in respect of the thickness/volume effect of the lashes.  However, the ASA considered that various claims made in the advert would be understood by consumers to mean that the mascara could lengthen lashes as well as separate them, increase thickness and volume, and generally enhance lash appearance.

Although Dior provided survey results showing positive consumer evaluations on the product’s effect, the ASA considered that they had not seen any evidence to show that the product’s effects as seen on Natalie Portman’s lashes could be achieved through use of the product alone, rather than in conjunction with post-production retouching.  The ASA was unable to determine the effects of the post-production work as they had not seen a copy of the image before retouching had taken pace.  As Dior had provided insufficient evidence to show that the post-production retouching did not exaggerate the likely effects of the product, the ASA held that the advert was likely to mislead.

This adjudication highlights the strict approach taken by the ASA in relation to post-production retouching of images, especially where the area of retouching is directly relevant to the product advertised.

12. Desert Point Ltd, 24 October 2012

The website www.clearsmoke.co.uk, offering a trial of electronic cigarettes, was headed “ClearSmoke” and featured the statement “e-Cigs advertised on” alongside the logos of the BBC, Sky News and itv1.  The advert contained other text stating “SMOKE ANYWHERE.  ClearSmoke electronic cigarettes are smoke-free and flame-free, meaning you can enjoy them safely, anywhere you want”; and quotations from national newspapers and television broadcasters under the heading “Electronic Cigarettes in the Media”.  The advert also stated “QUALITY ASSURANCE.  All ClearSmoke products are subjected to strict quality control and industry assessments”, followed by CE, RoHS (Restriction of Hazardous Substances) and SGS logos.

Complaint / Decision

A complainant challenged whether (1) the claim that the product had been advertised by the BBC, Sky News and itv1 was misleading and could be substantiated; (2) the claim “…you can enjoy them safely, anywhere you want” was misleading and could be substantiated, because he understood that was not the case; (3) the quotations under the heading “Electronic Cigarettes in the Media” were misleading, because he believed they had been taken out of context; and (4) the heading “QUALITY ASSURANCE”, followed by the CE, RoHS and SGS logos was misleading, because he believed it suggested the product had been medically approved.

All four complaints were upheld.  The ASA held, in relation to the first complaint, that Desert Point had failed to explain the context in which the product was allegedly advertised or featured on the BBC, Sky News and itv1 and had not provided any evidence substantiating this claim.  Desert Point argued in its response that the claims “e-Cigs advertised on”, referred to the product type as a whole, rather than specifically the ClearSmoke brand.  However, the ASA did not consider this to be relevant.  The claim was misleading.

The ASA considered that the claim that e-cigarettes could be enjoyed “safely, anywhere you want” suggested that they could be smoked in places where traditional cigarettes could not such as inside public buildings or the workplace.  However the policy on e-cigarettes varies between organisations and employers, meaning that it is not always allowed in all situations.  Desert Point had also failed to provide evidence to substantiate the safety claim.  The claim was therefore misleading.

In relation to the media quotations, the ASA considered that the way in which the wording had been selected went beyond simple factual statements and implied that the authors were strongly in favour of the use of e-cigarettes as an alternative to traditional cigarettes.  The ASA considered that the full text of the articles, when read, suggested a more cautious approach than the extracts used by Desert Point.  Desert Point pointed out a disclaimer on the website stating that these organisations did not endorse e-cigarettes, however, the ASA considered the disclaimer was too far from the quotations and too small to prevent the advert from being misleading.

Finally, the ASA considered that the text referring to quality assurance was ambiguous as it could suggest that the products had been assessed and approved, but e-cigarettes are in fact unregulated.  This text was therefore misleading.

This adjudication makes it clear that vague references to products featuring in various media channels will only be acceptable if they can be substantiated by evidence showing in what context this has occurred.  See in this context the CAP AdviceOnline note “As seen on TV” updated on 9 August 2012, which states that even evidence of paid for advertising is not enough to support a claim for “as seen”, a wider term than that used here.  In addition, advertisers should be cautious in reproducing extracts of articles or comments in order that they do not alter the original tone of the text.

LEISURE

13. Channel Four Television Corporation t/a Channel 4, 3 October 2012

The original case against this advertising campaign for Channel 4 Television’s documentary, ‘My Big Fat Gypsy Wedding’ was dismissed by the ASA in February 2012, despite receiving 372 complaints.  After the Irish Traveller Movement in Britain (ITMB) and eight co-complainants asked for an Independent Review of the Council’s decision, the case was re-opened for investigation.

The campaign comprised four posters, each of which displayed an image of people supposedly intended to represent the Traveller community.  Large text featured on all of the adverts read “BIGGER. FATTER. GYPSIER.”  The first poster (a) showed a close-up of a young boy looking directly into the camera; the second (b) showed a man leading a horse across a field with caravans visible in the background; the third (c) featured two young women wearing low-cut bra tops; and the final poster (d) showed three young girls standing in front of a caravan dressed for their first Holy Communion.

Complaint / Decision

The complainants challenged whether:

  1. the adverts were offensive, believing them to be racist, denigratory, and portraying Gypsies and Travellers in a negatively stereotypical way;
  2. the adverts were irresponsible because they depicted negative stereotypes of Gypsies and Travellers and endorsed prejudice against them;
  3. adverts (a), (c) and (d) were likely to cause physical, mental or moral harm to children from Gypsy or Traveller communities, including those featured in the adverts, as the ITMB believed they had been portrayed in a negatively stereotypical way;
  4. advert (c) was irresponsible and harmful because it depicted a child in a sexualised way, as the ITMB understood that one of the women featured in the advert was under 16;
  5. advert (d) breached the Code, as the ITMB believed that the children featured in the advert had been unfairly portrayed and the advertiser did not have written permission to portray them in that way.

Complaints (i) – (iv) were upheld.  Complaint (v) was not upheld.  The ASA took advice from the Equality and Human Rights Commission in determining their assessment of the complaints.

Complaints (i) and (ii) were upheld in relation to adverts (a) and (c).  Channel 4, in its lengthy response, stated that the intention behind the use of the strap-line “BIGGER. FATTER. GYPSIER” was to show that the second series of the programme was even “bigger and better” than the first, and that the word “Gypsier” was being used as a comparative adjective rather than a noun.  The ASA considered that although those who were familiar with the programme may well interpret the strap-line in this way, many readers would not share this interpretation and would understand from the word “Gypsier” that the depictions in the adverts were highly typical of the Gypsy and Traveller community.

The ASA considered that advert (a) showed a negative image, with the manner in which the boy was depicted likely to be interpreted as aggressive.  This negative image, combined with the suggestion that this behaviour was “Gypsier”, would be interpreted to mean that aggressive behaviour was typical in young members of the Gypsy and Traveller community.  In relation to advert (c), Channel 4 stated that the photo was taken at a party, and was an accurate depiction of the way the women had chosen to dress for the occasion.  However, the ASA considered that the low cut tops and heavy make-up, combined with the work “Gypsier”, implied that this appearance was highly representative of the Gypsy and Traveller community.  The ASA held that both adverts endorsed prejudicial views and were likely to cause offence.

Complaint (iii) was upheld in relation to advert (a) only.  The ASA considered that the portrayal of the young boy was offensive and endorsed negative stereotypes about him and his community, in such a way as was likely to cause distress and mental harm to children from those communities, including the boy in the advert.  Adverts (c) and (d) were unlikely to result in harm to the girls featured, or the wider community in general.

Complaint (iv) was upheld.  Although both women appeared to be 16 years old, one of the girls featured had been 15 at the time the picture was taken, although she had turned 16 before the picture was used in the advert, and Channel 4 had obtained parental consent for to appear in the photograph.  The ASA acknowledged that the advert accurately showed the girl as she had chosen to dress for the party.  She was wearing heavy make-up, her bra was visible and she was wearing a revealing low cut top.  The ASA considered that Channel 4 had acted irresponsibly by choosing an image that depicted a child in a sexualised way.  The advert was therefore likely to be harmful to the girl featured, regardless of any consent held given.

The final complaint was not upheld, as the ASA did not consider that the children in advert (d) had been unfairly portrayed in an adverse or offensive way.  Channel 4 was therefore not required to have consent to depict them in the manner in which they did, and there was no breach of the CAP Code in this instance.

The original decision of the ASA not to investigate these adverts was a somewhat surprising one given the sheer number of complaints that were made.  The ASA clearly concluded that this campaign raised serious issues, taking advice from the Equality and Human Rights Commission in reaching their decision.

14. Virgin Media Ltd, 3 October 2012

A television advert for Broadband featured David Tennant walking across the screen.  He said “Don’t you just hate it when you are watching something online and it buffers and this symbol appears?”  A buffering symbol appeared on the screen and David smashed it with a baseball bat and stamped on it.  He said “Ah that’s better.  Now from Virgin Media you could say bye-bye to buffering with super fast fibre-optic broadband”.  The voiceover said, “Join today for super fast fibre-optic broadband, unlimited UK weekend calls, all at half price for the first six months.  Check it out online”.

Complaint / Decision

Eighteen complainants challenged whether the advert was misleading as they understood that users would still experience buffering.

The complaint was upheld.  The ASA considered that the claims in the advert could be understood to mean that the issue of buffering would be completely resolved by the fibre-optic broadband service.  Although Virgin had submitted that its customers were significantly less likely to experience buffering, the ASA felt that the claim could be understood to mean that buffering would be eliminated if consumers signed up to the Virgin Media broadband service.  The use of the word “could” was not sufficient to clarify the claim, as stated by both Virgin and Clearcast.  The ASA considered the claim to be accentuated by the fact that David Tennant had destroyed the buffering symbol in the advert, as this would be interpreted to mean that buffering had been completely removed.  As the claim was presented in an ambiguous way the ASA determined that the advert was misleading.

This strict decision can be contrasted with the decision of the ASA to allow claims that text messages would be free “forever”, a statement which obviously cannot be guaranteed, in the adjudication on Everything Everywhere below.

15. Virgin Media Ltd, 31 October 2012

A circular advertising Virgin Media’s fibre optic broadband services was headed “We have already connected [street name] so it’s really easy to turn you on”.  Additional text stated “Dear Householder We’ve already done all the hard work and connected your street to our state-of-the-art fibre optic cable.  In fact you may have seen Virgin Media vans driving around your area.  We have done the checks for you and you are ready to go.  So it’s easy to turn you on to a world of entertainment… All the hard work’s already been done.  We’ve connected your street, run the checks and you are all ready to go.  In fact, all you have to do is pick up the phone.  Call today, and we’ll arrange a time for an engineer to pop round, install everything and show you how it all works …”.  Small Print stated “SERVICES AVAILABLE IN VIRGIN MEDIA CABLED STREETS ONLY.  Subject to network capacity, status and credit checks.  In limited cases, cabling may not extend from the street to individual premises.  A survey will confirm this as soon as possible after enquiries being made.  Check if your home’s connected at virginmedia.com…”.

Complaint / Decision

A complainant challenged whether the claims that his street was connected to fibre optic cable were misleading and could be substantiated, because he understood that was not the case.

The claim was upheld.  In its response, Virgin Media stated that the address in question had been marked as “unserviceable” on their postcode checker because it could not receive telephone.  Virgin Media said it would make changes to ensure that direct mail was only sent to addresses that were shown on their system as serviceable.  The ASA acknowledged this.  However, the ASA noted that the text of the advert claiming that the streets had already been connected coupled with the smaller text stating that the consumer should check whether or not their home was connected online at virginmedia.com was misleading as it contradicted, rather than clarified, the impression that the consumer’s home was already ready to receive the advertised services.  The ASA concluded that the advert was misleading.

16. Time Out Group Ltd t/a Time Out, 10 October 2012

A sales promotion on the website www.timeout.com featured the headline “£7.50 ticket to 1 Big Night – London’s biggest pub crawl” underneath which was an image of a large group of people waving at the camera, and text stating “Offer highlights: … 1 Big Night Out is London’s biggest pub crawl, operating every day of the year in some of the best bars and clubs in the capital.  The concept is simple: you and a group of like-minded party animals go on a guided tour of a variety of venues, enjoy one free drink or shot in each place, plus get massive discounts on any other drinks bought.  Pay no more than £2.50 for selected beers or £3.50 for cocktails”.  The “more details” section read “‘The night is young and so am I’, so sang 80’s Antipodean Rockers Men at Work.  Time to celebrate being a youngster then by taking up today’s offer of 1 Big Night Out in London.  Explore the best bars and clubs, neck some top-quality grog and meet like-minded people who are as up for a good time as you are.  This exclusive offer includes a guided tour, free entry into all venues, a free shot or drink in each plus drink deals in each bar leaving your pocket mercifully full of change for the night bus home.  When its time to party, you should party hard.”

Complaint / Decision

A complainant challenged whether (1) the advert was socially irresponsible as it condoned excessive or immoderate drinking especially in young people; (2) the advert promoted an alcohol-related product and was likely to appeal to people under the age of 18 and in doing so breached the code; (3) the advert breached the code as the people shown in the picture appeared to be under 25.

Complaints (1) and (3) were upheld.  Complaint (2) was not upheld.

The ASA considered that the text accompanying the promotion gave the impression that the occasion was one on which large amounts of alcohol might be consumed.  The ASA noted that participants were given entry to five venues over the course of one evening with a free drink in each.  Although the ASA acknowledged that if the free drinks taken were always a single shot of spirits this would only amount to five units of alcohol, they considered that many people would be more likely to choose a different drink such as a pint of beer or glass of wine, which would contain more than one unit of alcohol.  The ASA also noted that the free drinks did not have to contain alcohol.  However, they determined that, as the event was billed as “London’s biggest pub crawl”, most consumers would expect to receive a free alcoholic drink in each venue.  The ASA also referred to the discounted price featured in the advert and considered that consumers would expect to be able to buy alcohol at the discounted rates as well as receiving the five free drinks.  The CAP Code requires marketing communications to be socially responsible and not lead people to adopt styles of drinking which are unwise.  Marketing communications including a sales promotion must not imply, condone or encourage excessive consumption of alcohol.  As a large amount of alcohol could be drunk as part of this promotion, and as the ASA considered that the language of the adverts condoned an approach of excessive or immoderate drinking, they concluded that the advert was socially irresponsible.  The advert breached the code on this point.

In relation to the appeal of the advert to people under the age of 18 the ASA did not consider that the advert included any text which particularly reflected youth culture, and the advert therefore did not appeal especially to people under the age of 18.

In relation to the final complaint, Time Out submitted that the photograph used in the advert had been taken at an event available to only over 18’s and disputed whether the people in the picture were or appeared to be under the age of 25.  No one shown in the image was drinking.  However, although the ASA noted that nobody in the image was drinking, they considered that they were playing a significant role in the advert and many of them did appear to be under the age of 25.  The advert therefore breached the code on this point.

Advertisers should be reminded of the strict rules surrounding alcohol advertising and refer to the adjudication above on Wells & Young Brewing Company Ltd for an example of an advert promoting alcohol deemed acceptable by the ASA.

17. Profitable Play Ltd, 31 October 2012

A Facebook page for an online bingo game was headed “Bingo Friendzy … World’s first real cash game on Facebook”.  Posts further down the Facebook page contained claims such as “Invite friends and WIN MORE!”, “BIG PRIZE GAMES 6pm-10pm EVERY NIGHT on Bingo #Friendzy”, “Even more chances of winning with Bingo Friendzy’s Extra Ball Calls!”, “Join the Friendzy!” and “Visit the Candy Cave! Exclusive 90 ball bingo from Bingo #Friendzy”.  The heading of the page and the posts below showed images of furry cartoon characters.

Complaint / Decision

Two complainants challenged whether the advert was irresponsible as it was likely to be of particular appeal to children.

The complaint was not upheld.  The ASA considered that the images used in the advert meant it was likely to appeal to children if children were exposed to it.  However, as the advert was only accessible through the advertiser’s Facebook page and access to that page was restricted to users who were 18 or over, the ASA considered that Profitable Play had taken reasonable steps to prevent those under 18 from viewing the advert and the advert therefore did not breach the code.

This adjudication should remind advertisers of the strict rules surrounding the advertising of gambling practices.

RETAIL

18. Harvey Nichols Group Ltd, 3 October 2012

This adjudication concerned a direct mailing, an email, three national and regional press adverts, a magazine advert and a page on the website www.harveynichols.com.  The advert featured various well-dressed women and one man each with a wet stain on the groin area of their clothing.  Text stated “THE HARVEY NICHOLS SALE.  TRY TO CONTAIN YOUR EXCITEMENT”.

Complaint / Decision

The ASA received 105 complaints challenging (1) whether the adverts were offensive as they implied that the people in the adverts had wet themselves with excitement; (2) whether the advert would cause distress and serious offence to people with bladder problems.

The complaints were not upheld.  The ASA noted that the concept of “wetting oneself with excitement” was well known and often used in a light-hearted manner.  However, images thereof were unusual.  The language used, “TRY TO CONTAIN YOUR EXCITEMENT”, was not offensive and although the adverts were likely to be seen as unsubtle and tasteless by many members of the general public the ASA concluded that it was unlikely that they would cause serious or widespread offence.  The ASA considered that the adverts would not be interpreted as making light of urinary problems even to those who suffered from such problems.  Therefore such people were unlikely to be caused serious offence.  The advert was not in breach of the code.

19. Philips Electronics UK Ltd, 10 October 2012

The website www.philips.co.uk featured a Smart LED television.  The “Features” section of the website stated “Find, schedule, record, and pause TV.  Record live digital TV on a USB connected to your Philips TV or pause content whenever you want to take a break and continue watching whenever you want.  Use the Electronic Programme Guide to find your favourite programmes and easily schedule your preferred recordings.  Now you can programme your TV viewing around your life”.

Complaint / Decision

Three complainants challenged whether the claim was misleading, as they understood that this feature was not available in the UK.

The ASA upheld the complaint.  The ASA considered that readers would understand that if they purchased the product they would be able to take advantage of this feature, including the record function.  Philips acknowledged that the record function was disabled when users selected the UK setting on the machine.  However, they stated that the website was used by customers in Northern Ireland and the Channel Islands and if users selected Ireland or France the record function would be enabled.  Nevertheless, the ASA determined that most visitors to the UK website would be UK customers who would select the products on the UK setting.  The function was not generally available to the UK consumers on this setting.  The claim exaggerated the feature and was misleading.

This seems a sensible adjudication from the ASA based on the fundamental principle that advertising should not be misleading.  Advertisers should take care when promoting products on websites, which can be accessed by users worldwide, not to mislead as to the functionality of the products in particular jurisdictions.

20. Marks and Spencer plc t/a M&S, 31 October 2012

A leaflet for a new Marks and Spencer service was headed “Shop your way.  Our new ordering & delivery service”.  Additional text stated “shop your way is a new service that gives you complete flexibility …” alongside a table which showed the different ordering services available in store, online, by phone and also that made to measure shirts were available to order online.  Another page of the leaflet stated “shopping just got easier … order a wide range of products, including … made to measure shirts”.

Complaint / Decision

A complainant challenged whether the claim “made to measure shirts” was misleading and could be substantiated, as he was not required to specify his sleeve length when ordering his shirt.

The complaint was not upheld.  The ASA considered that consumers would understand the claim “made to measure shirts” to mean a shirt that would be made to their own specific measurements.  The service required consumers to enter their age, height, weight and collar size.  An algorithm then used those four measurements to create further output measurements from which a shirt pattern was cut.  M&S, in their response, said that taking a sleeve measurement was very tricky and practically impossible to do on your own.  A consumer who did not already know his sleeve length would have had to guess which may not have been accurate.  The ASA noted that the measurements required by the website would be easily available to consumers and could be entered with accuracy.  M&S submitted data showing that the service had a low returns rate and considered that the shirts that did fit could be described as made to measure.  M&S also offered a guarantee as part of the service allowing customers who were not satisfied with their shirts the opportunity to submit further, more detailed measurements from which a replacement shirt could be made.  The ASA therefore considered that the shirts were made to measure and the claim was therefore substantiated and not misleading.

HOLIDAYS & TRAVEL

21. Terravision Transport Ltd, 17 October 2012

Poster adverts for Terravision coach transfers to London featured in Stansted Airport included the text “CHEAPEST & FASTEST” or “THE FASTEST”, next to a timer that displayed “00.35.00”.  Another poster was headed “YOUR WAY TO LONDON!” and included images of London landmarks such as St Paul’s Cathedral and Big Ben, and also included the names of the destinations in London which the coaches serve.

Complaint / decision

A complainant challenged whether the claim “FASTEST” was misleading and could be substantiated as he believed it was faster to reach London from Stansted Airport by train.

The complaint was upheld.  In their response Terravision said the adverts were designed to focus on the new Stratford route by which Redbridge Station (London Zone 4) could be reached during the day in 35 minutes.  It was therefore factual to advertise that time.  However, the ASA considered that as other stations such as Victoria and Liverpool Street were referenced in both adverts, along with images of central London landmarks and the heading “YOUR WAY TO LONDON!”, the claims were likely to be interpreted as meaning that Terravision offered the fastest route to reach central London and that this could be done in 35 minutes.  As the ASA had not seen any evidence to demonstrate that this was the case, they concluded that the adverts were misleading.

Although Terravision could substantiate the claim as truthful in terms of reaching London Zone 4, this was insufficient due to the references to central London of names of stations and images of landmarks.  Advertisers making superlative claims should refer to the note “Types of claims:  Superlative” on the CAP AdviceOnline database.

22. National Express Group t/a Eurolines, 31 October 2012

This adjudication concerned (a) a website; (b) an outdoor advert displayed on trains; (c) an outdoor advert displayed in the toilets of a family-friendly pub; (d) a banner advert on Spotify and (e) an audio advert on Spotify.  Adverts (a) – (d) featured an image of a woman wearing a can-can costume lifting her skirt and kicking her leg in the air.  Text read “SEE WHAT YOU’RE MISSING IN EUROPE”.  In adverts (a) and (d), this text was displayed in a red box positioned over the woman’s crotch.  In advert (c), a box containing a mobile phone quick response code (QR code) was positioned over her crotch.

The audio advert was based around a male character recounting a trip to Amsterdam.  Many of the words in his tale were censored by bleeps.  He said, “So anyway, me and the boys got a Eurolines coach to Amsterdam for just £9.00, and went straight to the [bleep] district. My girlfriend wasn’t there, so I could buy a [bleep] without her knowing.  After hours of window shopping, I finally went with a cute pair of Dutch [bleep].  They were a bit pricey, but well worth it.”  The voiceover then stated, “To hear the ad in full and see what you’re missing in Europe, click the banner and discover low cost coach travel to hundreds of destinations, when you book online at least four days in advance.  Eurolines – see what you’re missing in Europe”.

Complaint / decision

Thirteen complainants challenged whether:

  1. Advert (a) made implied references to sex and prostitution and was offensive and degrading to women;
  2. Advert (b) on the same grounds;
  3. Advert (b) was irresponsibly placed, as they believed it was unsuitable for an untargeted medium where it could be seen by children;
  4. Advert (c) was offensive and degrading to women;
  5. Advert (c) was irresponsibly placed, as they believed it was unsuitable for an untargeted medium where it could be seen by children;
  6. Advert (d) was offensive and degrading to women; and
  7. Advert (e) was overtly sexual and that the reference to visiting a prostitute was offensive.

Complaints (i), (iv), (v) and (vi) were upheld.  Complaints (ii), (iii) and (vii) were not.

The ASA considered that, although the image of a French can-can dancer was a well-known cultural reference, the use of the box of text as a visual and verbal pun was likely to be interpreted as presenting the woman as a sexual object.  In the context of marketing for European travel, the image was likely to cause offence, and complaints (i) and (vi) were duly upheld.  The ASA came to the same conclusions for the QR Code placed over the woman’s crotch in advert (c), stating that the effect was exacerbated by the fact that users were encouraged to scan her genital area.  Advert (c) was held to be likely to cause offence and unsuitable for public display, and complaints (iv) and (v) were upheld accordingly.

Although advert (b) featured the same text and image of a can-can dancer as advert (a), it did not draw any attention to the genital area by placing text box over her crotch.  The ASA considered the advert to be only mildly sexual and unlikely to cause serious of widespread offence.  The advert was suitable for an untargeted medium – complaints (ii) and (iii) were not upheld.

In relation to the audio advert, the ASA noted that some consumers may understand the advert to be making implied sexual references to Amsterdam’s red light district.  However, the ASA considered that most consumers would view this as light-hearted and it was unlikely to cause serious or widespread offence.  Complaint (vii) was not upheld.

The position of the text box over the crotch area of the can-can dancer, rather than specifically the text it contained, was clearly a key factor in the decision of the ASA which turned an advert from being only mildly sexual, to likely to cause offence. 

OTHER

23. Everything Everywhere Ltd, t/a T-Mobile, 24 October 2012

This adjudication concerned a television advert, the social networking page for T-Mobile and the website www.t-mobile.co.uk.  The television advert included the statement “At T-Mobile we found out Britain loves an extra day off … and we really love a bargain!  So top up £10 a month on pay as you go and get unlimited free texts forever”.  On screen text stated “Texts applied and last for following month.  Terms apply”.  The social networking page stated “Get unlimited FREE texts forever when you top up £10 a month on T-Mobile”.  Text on the website read “Unlimited free texts – forever – top up £10 each month and choose from unlimited free UK texts, 100 free UK minutes, free international minutes or free BlackBerry services”.

Complaint / Decision

Two complainants challenged whether the claims that the texts would be included forever were misleading and could be substantiated because they did not believe that the advertisers could demonstrate that this service would be available indefinitely.

The complaint was not upheld.  T-Mobile stated in their response that they had no plans to remove the current offer of unlimited texts for customers who topped up by £10 a month.  The ASA considered consumers would be likely to understand the claim to include an element of advertising puffery and would be unlikely to assume that texts would be available literally forever.  This, combined with T-Mobile’s assurance that they did not intend to remove the offer in the near future meant the claim was not misleading.

24. Reckitt Benckiser Healthcare (UK) Ltd, 31 October 2012

Text on the website www.calgon.co.uk read “Washing machines live longer with Calgon”.  Next to the text was a colour-coded map demonstrating water hardness across the UK.

Complaint / Decision

Which? challenged whether the claim “Washing machines live longer with Calgon” was misleading and could be substantiated, as they did not believe the evidence in support of the claim reflected relevant washing conditions.

The complaint was not upheld.  The ASA considered that the claim would be interpreted by consumers to refer to the benefit of using Calgon rather than not using a water softener.  The ASA considered that the fact that a map was provided showing hard water areas of the UK and additional information was provided relating specifically to the performance of Calgon in hard water areas meant that consumers would expect Calgon to have a more significant effect on washing machines in hard water areas.

To substantiate the claim Reckitt Benckiser provided reports of two tests which had been accelerated to produce machine failure and one non-accelerated test.  The ASA considered that the accelerated tests did show that heating elements in washing machines could fail due to the build up of limescale and that a water softener could significantly reduce the amount of limescale deposited.  However, these tests alone were not sufficient to demonstrate whether Calgon could reduce the amount of limescale by such an amount as to impact on the lifespan of a machine under conditions that consumers in the UK were likely to experience, particularly because these tests used water that was harder than the mains water supplied anywhere in the UK.  However, the non-accelerated study had used a standard domestic machine, load, detergent and wash temperature along with water of a hardness within the range of the main supply in the UK.  The ASA accepted that the results of this study demonstrated that it would have taken significantly longer for the machines using Calgon to generate the same amount of limescale as those that did not.  The ASA concluded that Calgon could reduce the build up of limescale, and the evidence provided was sufficient to demonstrate that it could reduce such build up sufficiently to extend the working life of washing machines operated in “real world” conditions in the UK.  The claim had been substantiated and was not misleading.

This adjudication highlights the importance of producing evidence that sufficiently substantiates any claims made in marketing materials.  It appears that it was the third and non-accelerated test that led the ASA to its decision – had Reckitt Benckiser supplied the two accelerated tests alone this would probably have been deemed insufficient evidence.  For further comments on the substantiation of claims, see adjudication on Church & Dwight above.