This summary provides a selection of the most interesting ASA adjudications in June, highlighting the key issues considered in those adjudications. June saw several complaints concerning ads for gambling websites and bookmakers, including in relation to free introductory bet offers and the glamorisation of gambling. There were also several complaints that focused on the administration of competitions, an issue with which the ASA usually deals strictly. As is often the case there were a number of complaints in relation to broadband services and the inadequate qualification of price claims. Further, CAP published a new Help Note on Wind Energy advertisements. Read the new Help Note here.
- Kitchenideasscotland.co.uk, 12 June 2013 (the ASA considered whether claims on the advertiser’s website were misleading by implying that the company was based in Scotland)
COMPUTERS AND TELECOMS
- Supatel Ltd t/a Time Talk, 5 June 2013 (TalkTalk challenged whether a claim that there would be “no penalty” if customers switched to Time Talk from TalkTalk was misleading and denigratory)
- Be Un Ltd t/a BE, 5 June 2013 (the ASA considered whether a broadband package claiming to be “Unlimited” was misleading because text stated that a “very fair usage policy” applied)
FOOD & DRINK
- Neil Asher t/a Kidz 5 A Day, 5 June 2013 (YouTube videos uploaded by Kidz 5 A Day were challenged as not being obviously identifiable marketing communications and as featuring misleading claims following an earlier ASA ruling)
TRAVEL & TOURISM
- Thomas Cook Tour Operations Ltd, 5 June 2013 (two complainants challenged whether advertised discounted rates were misleading)
- News Group Newspapers Ltd t/a The Sun, 12 June 2013 (a competition winner complained that a holiday promotion had not been administered fairly)
- East Lancashire Light Railway Company Ltd, 19 June 2013 (the ASA considered whether an internet promotion made it sufficiently clear that non-optional charges were not included in the advertised price)
- The Riverside Trust Ltd t/a Riverside Studios, 5 June 2013 (the ASA considered whether an ad for a play was offensive and unsuitable for display)
- Supercar Lifestyle Ltd, 12 June 2013 (the ASA ruled on whether a runners up prize promotion was misleading and offered a genuine prize)
- Marston & Langinger Ltd, 26 June 2013 (the ASA considered whether claims that a paint was the “best paint in the world” could be substantiated)
- Betway Ltd, 5 June 2013 (the ASA considered whether an advertised “risk-free bet” was misleading because customers could not always get their money back)
- Betway Ltd, 5 June 2013 (a TV ad was challenged as irresponsibly prioritising gambling over everyday activities)
- Bonne Terre Ltd t/a Sky Bet, 5 June 2013 (a TV ad and an online ad for a “free” £5 bet on Sky Bet were challenged as misleading)
- WHG Trading & WHG ( International) Ltd t/a William Hill Online, 26 June 2013 (the ASA ruled on whether an ad for a live casino was seductive in nature and suggested that gambling was linked to attractiveness)
- Dreamscape Networks Ltd, 5 June 2013 (four complainants challenged whether a TV ad was offensive and sexist despite having been cleared by Clearcast to be broadcast after 9pm)
- Trademark Renewal Service Ltd, 5 June 2013 (the ASA considered whether a direct mailing for a trade mark renewal service misleadingly linked itself to the UK IPO)
- JDM Marketing Ltd t/a Bright Life UK, 12 June 2013 (Gloucestershire Trading Standards complained that a prize promotion mailing envelope suggested that it was official correspondence and was therefore likely to cause undue fear and distress)
- CORGI HomePlan Ltd, 5 June 2013 (the ASA considered whether an ad made a sufficient distinction between CORGI and CORGI HomePlan Ltd)
- Kitchenideasscotland.co.uk, 12 June 2013
A complainant challenged whether the claims “KITCHEN IDEAS SCOTLAND” and “If you’re on the hunt for great Kitchen Ideas in Scotland then you’re in the right place” misleadingly implied that the company was based in Scotland, which he understood was not the case.
Kitchenideasscotland.co.uk (KIS) argued that its website did not state that the company operated in Scotland, but that its designers were based and lived in Scotland. KIS also argued that, by raising the issue, the complainant must have been aware that KIS was not based in Scotland so had not been misled. KIS drew a comparison to B&Q being based in Southampton, which does not prevent it from operating in Scotland.
The ASA concluded that the claims were misleading and in breach of the Code because most consumers reading the claims would believe that the company was based in Scotland and might therefore decide to make further enquiries and possibly purchase a kitchen.
The ASA told KIS not to misleadingly imply that it was based in a specific area if that were not the case. This decision demonstrates the importance of not misrepresenting the location of a business when advertising a certain product or service as such misrepresentation could influence customers’ decisions.
COMPUTERS AND TELECOMS
Supatel Ltd t/a Time Talk, 5 June 2013
TalkTalk challenged whether a claim of “no penalty” was misleading and denigratory in an ad appearing on the “Promotions” page of www.timetalk.co.uk. The ad stated “Switch from TalkTalk for FREE; No penalty even if you are in contract, if you cancel within 10 days of the price increase notification” with a roundel in the top right-hand corner showing “PENALTY” crossed out.
TalkTalk challenged the “no penalty” claim because it maintained that it did not penalise customers who left contracts early, but instead charged them an early termination fee.
Supatel Ltd said that the claim was a factual statement that if the provider unilaterally increased its prices then customers in fixed-term contracts could terminate them without penalty. Additionally, Supatel stated that as the ad did not refer to penalising customers who terminated without receiving a price increase, it was not denigratory to TalkTalk. Supatel stated that it understood that TalkTalk had attempted to distinguish an early termination fee from a penalty, but argued that an early termination fee could still be penal if it exceeded the damages or loss suffered by TalkTalk. Furthermore, it pointed out that the word “penalty” was consistent with terminology used in such a situation by the public, media, Ofcom and TalkTalk themselves.
The ASA took the view that the statement implied that if a TalkTalk customer cancelled its contract when there had not been a unilateral price increase by the provider, the customer would incur a penalty. The ASA agreed with Supatel’s assertion that an early termination fee could be interpreted as a “penalty” by consumers and Ofcom, acknowledging that TalkTalk had previously referred to an early termination fee as a “penalty” on its website. The ASA took the view that the average consumer would view the word “penalty” as synonymous with the expression “early termination fee” and any charge would therefore be likely to be considered penal in nature. The ASA therefore did not uphold the complaint and concluded that the ad was neither misleading nor denigratory, and did not breach the Code.
The outcome here is perhaps not surprising, as TalkTalk had previously referred to the early termination fee as a “penalty” on its own website. While the complaint made by TalkTalk was not upheld, TalkTalk was itself subject to complaints upheld in relation to comparative claims that it had made about rival broadband service providers last month.
- Be Un Ltd t/a BE, 5 June 2013
Three complaints were made that claims on www.bethere.co.uk (BE) that its broadband packages had “Unlimited usage” were misleading as a link on the website brought up a box with further claims of “unlimited usage*” but with text immediately below that stated “*A very fair usage policy applies”.
BE provided the ASA with extensive evidence of its usage policy and maintained that it was unlimited. It stated, however, if customers used over 150GB of data in a month on an exchange for which utilisation was at 80% or greater, they would be sent an email and asked to limit their usage at peak times to ensure the network was not disrupted. If the customer’s usage did not reduce then a follow-up email would be sent outlining that their service may be suspended. BE stated that, in the preceding twelve months, it had not charged any of its customers extra fees, had not limited any of its customers’ usage or suspended any of its customers’ access automatically, but two people had swapped provider following receipt of the second warning email.
The ASA upheld the complaint, considering that the claim of “unlimited” would be interpreted by potential customers to mean that they could use the service or download as much data as they wanted without limit or penalty. Although the fair usage policy only affected a small number of customers, by virtue of the 150GB restriction the ASA deemed the service not to be unlimited and therefore took the view that the claims were misleading.
The ASA has previously adopted a strict approach to claims by broadband providers that their services are “unlimited”. In March 2013 Virgin Media had complaints against it upheld by the ASA, which ruled that “unlimited” was intended to mean that there were no significant restrictions on a user’s ability to download data and the claim “unlimited” was therefore considered to have been misleading. The competition in the broadband market often forces providers to pursue competitive advertising policies, but it must be remembered that claims that services are “unlimited” will be interpreted by the ASA to mean that restrictions must be moderate and in line with consumer expectation, as per CAP’s Help Note on “unlimited claims in telecommunications advertising”.
FOOD & DRINK
- Neil Asher t/a Kidz 5 A Day, 5 June 2013
Three complaints were made that two YouTube videos featuring Neil Asher, the owner of Kidz 5 A Day, posing as a satisfied customer making a video diary had been misleadingly created and uploaded to YouTube by the company.
The complainants alleged that the videos were not genuine and were not obviously identifiable as marketing communications. The complainants highlighted that one video claimed that a drink produced by Kidz 5 A Day contained 33 organic fruits and vegetables, but in February 2012 the ASA had ruled this claim to have been misleading.
Neil Asher stated that he had withdrawn the ads and had shot a new video that better represented his interest in the company selling the product, but the ASA upheld the complaints and ruled that the ad breached the code and was misleading. The ASA considered the phrases used in the video implied that Neil Asher was simply a member of the public recommending the product but took the view that the videos were clearly marketing communications and should have been obviously identifiable as such so as not to mislead viewers. The ASA ruled that the inclusion of the previously prohibited claim (that the drink contained 33 organic fruits and vegetables) in a marketing communication without any supporting evidence it to be unsubstantiated and misleading.
In February 2013 complaints were made about Weetos advergames that targeted children and featured various Weetabix/Weetos products. The complaints were partly upheld, but not on the issue of whether the advergames were clearly identifiable as marketing communications. It is important to note that any online promotional communications must be obviously identifiable as marketing communications to reduce the risk of misleading consumers.
TRAVEL & TOURISM
- Thomas Cook Tour Operations Ltd, 5 June 2013
The voice-over to a TV ad stated “Holidays you won’t want to return from. Now with a guaranteed 10% off before the end of January. Don’t just book it, Thomas Cook it,” whilst on-screen text stated “Guaranteed 10% OFF before the end of January”. The website www.thomascook.co.uk stated “SALE NOW ON Guaranteed 10% OFF Summer holidays*”.
The complainants alleged that the TV ad and website claims were misleading because holidays they had been monitoring before the launch of the “10% OFF” promotion, that they understood to have been part of that offer, had not changed in price.
Thomas Cook suggested there was insufficient time in a TV ad to detail the full terms and conditions so smaller on-screen text stating “Book by 31st January 2013. Selected holidays departing 1 May – 21 October 2013. Conditions apply” indicated that the offer only applied to selected holidays. Thomas Cook stated that large tour operators used fluid pricing strategies which meant that any discounts were also subject to fluctuation, of which, it suggested, complainants monitoring the prices would be aware. Thomas Cook stated that Clearcast had received confirmation of the offer’s terms and conditions and also drew the ASA’s attention to the asterisk on the website which directly linked to the full terms and conditions of the offer.
The ASA, however, upheld both complaints and decided that the advertisements breached the Code. Although recognising that tour operators operate fluid pricing policies, and that, by monitoring prices, consumers would have been aware of this, the ASA took the view that consumers would not expect a promotional discount to be applied on a fluid basis. The ASA ruled that such an approach would cause confusion among consumers as to whether or not a discount had been applied, which would differ from consumer expectation.
The ASA takes a strict approach to such discount promotions and has upheld complaints made where the advertised savings turn out to be misleading. Advertisers that frequently run such offers, such as Groupon, have in place numerous checks to ensure that the savings they advertise are and continue to be accurate, but even these are sometimes not sufficient to ensure the accuracy of advertised savings – for example in April this year when a saving advertised by Groupon could be beaten by booking directly through the hotel. This is also the second upheld complaint in relation to Thomas Cook in as many months. See our previous summary here in relation to an ad that featured a man letting the air out of a coach tyre whilst several holiday makers on the coach, including children, looked on.
- News Group Newspapers Ltd t/a The Sun, 12 June 2013
A competition on The Sun’s website was headed “Win a seven-night family holiday to Walt Disney World Resort in Florida” with further text and terms and conditions that stated that the prize was based on “2 adults [sic] (aged 18 or over) and 2 children (aged 2-11 years old) travelling only (no other age combinations are permitted)”.
The complainant, who had been told that she had won the competition, was later deemed not eligible for the prize because she wanted to take her sister’s children on the holiday and therefore challenged whether the promotion had been administered fairly.
The Sun stated that its competition team had telephoned the complainant to ensure that she had entered and agreed to the relevant terms and conditions before confirming to her that she had won the prize. The Sun stated that the complainant had expressed an intention to use the prize with her partner only, which would have been a breach of the terms. When the complainant suggested taking her sister’s children on the holiday, the competition team told her it would be unfair for a couple to win a prize specifically tailored to families. The competition team went on to contact a further three entrants before finding an eligible winner.
The ASA upheld the complaint and found it to have breached the Code. The ASA considered it reasonable for The Sun not to offer the prize to an individual couple as the prize had been clearly described as a family holiday and it had been communicated that entrants would be expected to take children. However, as the complainant had requested to take her sister’s children, who had been in the correct age bracket, and there was no pre-condition of parental responsibility, the ASA took the view that the complainant had been caused unnecessary disappointment. The ASA stated that if The Sun had not intended to award the prize in those specific circumstances it should have excluded them in the terms and conditions.
This adjudication follows the CJEU’s decision in November last year in relation to the administration of prize promotions in the case of Purely Creative and Others v. Office of Fair Trading. The CJEU ruled that prize winners should not have to bear the costs of collecting a prize and it also emphasised the need for clear and sufficient information to be provided to entrants in order to enable them to identify precisely the nature of the prize. Read our summary of the case here.
- East Lancashire Light Railway Company Ltd, 19 June 2013
The website www.eastlancrailway.org.uk included price claims for dining experiences. Text at the bottom of the screen stated “*Prices include return travel. Drinks not included.” A link labelled “BOOK SEATS” was also included. The linked booking page was headed “Book your Dining Experience Today!” and text at the bottom of the page stated “*Please note that tickets that are purchased online are subject to a booking fee and postage charge…If you continue to use the online booking channel we’ll assume that you are happy with the extra charges.”
The complainant challenged whether the ad was misleading because it did not make the additional booking and postage charges associated with online booking sufficiently clear.
The ASA upheld the complaint and considered that, in the context of a website with an online booking facility, which also invited consumers to “BOOK YOUR SEATS” and included a page headed “Book your Dining Experience Today!”, the quoted prices would be understood to be targeted at consumers who were likely to buy online. The ASA considered that the price claims were likely to be understood to mean that the tickets were available at the prices stated without additional charges. Whilst the ASA did acknowledge that the ad included text to explain the existence of booking and postage charges, it held that these contradicted the impression given by the price claims.
The ASA considered that, although the booking fee may have varied for each ticket, it was possible to calculate the overall fee per ticket in advance. The ASA also understood that the fee was likely to apply to all or most users of the website and therefore considered that the prices quoted should have been inclusive of the non-optional booking fee. The ASA stated that the mandatory postage charge should have also been stated with equal prominence to each of the inclusive ticket prices. The ASA took the view that it would have been acceptable to have explained, next to the booking fee inclusive prices, that they included an online booking fee and to also give the booking fee exclusive price, provided it was not more prominent than the inclusive price and it was clear that the exclusive price was only applicable to those booking by phone or in person.
The ASA considered the ad to be misleading because the quoted prices were not inclusive of a compulsory charge that applied to online buyers to whom it was targeted and because the postage charges were not stated.
This decision gives clear guidance to advertisers of online promotions that all additional and non- optional charges must be given equal prominence to any price offer promoted. This is in contrast to the ASA’s decision in September 2011 in relation to a promotion run by thetrainline.com. Interestingly in that case the ASA did not uphold complaints that price-reduction claims had not referred to non-optional booking fees because thetrainline.com had based its claims on calculations that included the booking fee.
- The Riverside Trust Ltd t/a Riverside Studios, 5 June 2013
A digital ad for a play, seen beside an escalator on the London Underground, featured a man lying on top of a woman and text below read “Mies Julie”. The image alternated with another frame that featured reviews and performance dates.
The complainant challenged whether the ad was offensive and unsuitable for display where children could see it.
The ASA did not uphold the complaints, although it acknowledged that the complainants were concerned that the image was sexually explicit and potentially suggestive of sexual violence. The ASA took into account the fact that the image appeared to be still, and the models in the posters had neutral expressions, which the ASA considered to be passive rather than suggestive of sexual activity or violence. The ASA considered that the image was likely to be seen by most members of the public as a choreographed pose rather than an explicitly sexual image, and was therefore unlikely to cause serious or widespread offence and was suitable for public display.
The ASA can be very strict in relation to alleged sexually explicit content in ads, especially when complaints concern such ads being viewed by children, but it adopted a common sense approach in considering this complaint.
- Supercar Lifestyle Ltd, 12 June 2013
An email prize promotion sent to runners-up in a competition offered entrants a racing tuition prize. The wording stated “Congratulations [name] you have won one of our runner up prizes!” which was followed by text that set out various details of the prize and what it involved. It also explained how to contact the booking team to claim the prize.
The complainant challenged whether: (i) the ad was misleading and had been administered properly because, on contacting the provider of the prize to claim the runners up prize, he was informed that an insurance payment would be required in order to claim the prize, which had not been stated in the terms and conditions; and (ii) the runners up prize was in fact a genuine prize as he believed it had been offered to all entrants.
The ASA upheld both complaints. The ASA noted that the email stated “Congratulations [name] you have won one of our runners up prizes!” The ASA noted, however, that it had not seen any evidence or documentation that demonstrated how the runners up had been selected or that ensured the competition was genuine. The ASA therefore considered that, in the absence of any supporting documentation, the prize offered in the email was not a genuine competition prize on the basis that it had been offered to all participants in the original competition and had not been won by select runners up. The ad was therefore deemed to have been misleading.
In relation to the first complaint, the ASA acknowledged that an insurance payment was required to take advantage of the tuition session prize. It considered having insurance, and therefore payment of the insurance fee, to be a significant condition of the promotion. The ASA therefore took the view that the fee should have been made clearer to consumers and should have been set out in the e-mail. As this information had not been included in the ad, the ASA concluded that the promotion had been misleading.
The ASA takes a strict approach to the administration of competitions in line with the CJEU’s approach in the Purely Creative case referred to in our summary of The Sun adjudication above. Competition administrators should take care to distinguish between gifts and prizes offered only to selected individual winners and also to ensue that prizes are carefully defines so as to expressly exclude items for which a winner is to be responsible.
- Marston & Langinger Ltd, 26 June 2013
A magazine ad headed “THE PERFECT FINISH” featured the claim “MARSTON & LANGINGER THE BEST PAINT IN THE WORLD”. A second ad featured an image of dried flowers with drops of paint running down the image and down the ad, with the text “DRAWN FROM NATURE”. Again the ad also featured the claim “MARSTON & LANGINGER THE BEST PAINT IN THE WORLD”.
Farrow & Ball Ltd challenged whether the claim “the best paint in the world” was misleading and could be substantiated.
The ASA upheld the complaint in relation to the second ad only. The ASA took the view that the claim “THE BEST PAINT IN THE WORLD” in the first ad, without any comparative claims, was likely to be seen by readers as puffery. The ASA therefore deemed the claim to be incapable of objective substantiation and not misleading in nature.
In relation to the second ad, it was stated that M&L’s products were “technically superior” and, when considered alongside the statement “THE BEST PAINT IN THE WORLD”, the ASA considered that the claim was likely to be seen as an objective comparative claim that M&L’s paint was the most technically advanced on the global market. The ASA therefore stated that such a claim required substantiation with robust supporting evidence. As it had not been provided with any such evidence, the ASA concluded that the claim had not been substantiated and was therefore misleading.
This decision demonstrates that the ASA may deem standalone claims such as “the best paint in the world” as puffery and unlikely to be actually interpreted by consumers to have that meaning. The ASA also took this approach in relation to claims that boilers were “everlasting” in a decision in relation to A Shade Greener Ltd in April this year. However, where there is an objective comparative claim, the ASA will expect this to be founded upon evidence and will expect advertisers to provide robust substantiating evidence.
- Betway Ltd, 5 June 2013
A TV ad for Betway set in a kitchen, showed everyday objects transformed into a gambling scenario. It featured a fridge representing a slot machine, a glass being filled with chips instead of water and a tablecloth transforming into a roulette board.
The complainant challenged the ad as irresponsible because it prioritised gambling over everyday activities. Betway argued that, because both characters were shown in formal work dress and it was dark outside the kitchen windows, the ad made it clear that the gambling activities took place after work, at home, in the evening. Clearcast agreed that the ad made it clear that both characters had returned home from work and the activities shown represented the games that could be played on Betway.com.
Clearcast suggested that the ad made clear that the gambling activities had taken place after the character had returned home from work as a form of light hearted entertainment rather than the character prioritising gambling activities above work commitments. The ASA agreed that the ad did not portray gambling as taking priority in life and did not uphold the complaint.
- Betway Ltd, 5 June 2013
A headline banner on www.betway.com stated “Sign up now for a £50 risk-free bet” with a link to “Register now” where customers were prompted to accept the terms and conditions. Another link took the user to further information on the terms and conditions.
The complainant argued that the statement was misleading because they understood customers would not always be able to get their money back. Betway stated that the “risk-free” element related to the first deposit and added that the offer was made with clear links and references to the terms and conditions, which set out the conditions attached to the refund. Betway argued that the bet was “risk-free” because the player would be able to wager £50 and, once deposited, receive £50 of bonus play. Betway maintained that any further conditions, such as requiring welcome bonuses to be wagered five times, did not relate directly to the “risk-free bet” and it suggested that it was clear in this instance that the complainant had understood the offer and had not been misled.
The ASA upheld the complaint and ruled the ad to have breached the code. The ASA took the view that without any qualification, most consumers would understand from the ad that, upon sign-up, they could bet £50 and incur no loss. The terms and conditions demonstrated that customers were required to deposit and bet with their own money and the “free-bet” was a refund for qualifying customers. Qualifying customers had to wager the bonus amount five times and refunds were only made if their account balance reached zero within seven days of registering. The ASA ruled that this would mislead most customers.
Previously the ASA has permitted significant terms and conditions to be provided no more than one click away from the ad, but in this case there was no direct link between the banner and those conditions and the ASA considered the particular conditions contradicted rather than qualified the “risk-free bet” claim. The ASA requires any significant qualifications to price claims to be prominently displayed with the advertised price and this will be the case particularly where a product is offered for “free”. The ASA upheld similar complaints in relation to Shebang Technologies in February 2013 who claimed to offer “free” mobile phone handsets to “every” customer even though the offer was subject to a number of conditions that could only be found in a separate part of the website. Moreover, of course, advertising something as being “free” where the consumer has to pay more than the unavoidable cost of responding is also a breach of the Consumer Protection from Unfair Trading Regulations, and one of the 31 “always unfair” practices.
- Bonne Terre Ltd t/a Sky Bet, 5 June 2013
A TV ad for Sky Bet TV featured various on screen boxes stating “£10 FREE BET” and “£5 FREE BET” with a voice-over stating a new sign-up offer: “Claim £10 completely free plus £5 free every week until the end of the season”. On screen text gave further information including that the offer only applied to new customers and customers would have to “Stake £5 weekly to qualify for £5 weekly free bet until end of football season.” The website www.skybet.com stated “Join now and claim £10 completely free today + £5 free every week” and after following a “join now” link the landing page stated “Register today and claim your £10 completely free bet Plus earn £5 free bet every week!”.
The complainant challenged whether the ads were misleading because they failed to make it sufficiently clear that it was necessary to pay £5 every week to qualify for the free £5 bet.
Bonne Terre argued that the TV ad clearly represented the £5 weekly stake requirements and stated that qualifications were clearly laid out in the terms and conditions, with particularly significant ones having been highlighted with on-screen text. Bonne Terre argued that the on-screen text did not contradict the voice-over claims, but clarified a significant term in explicit detail so as not to mislead viewers and comply with the code. Clearcast agreed with this position.
Bonne Terre argued that the website was a targeted medium and visitors would have an understanding of the common types of stake promotion being offered. It added that new users would have had access to the terms and conditions through a link on “Step two” of the registration process.
The ASA upheld both complaints and ruled that both ads were misleading. The ASA highlighted that the TV ad appeared in an untargeted medium, aimed specifically at new customers, so the “free bet” conditions should be made clear in the ad. The ASA stated that the use of the words “free bet” alone was potentially misleading, but it considered the wording of the condition to have been an adequate qualification. However, as the contribution of £5 each week by customers until the end of the season was a significant amount of money, the ASA took the view that the qualifying on-screen text should have appeared at the same time as the voice-over and “free bet” images.
In relation to the online ad, the ASA considered the qualifying information to have been sufficiently adequate, but still found the claims to have been misleading because the qualifying information was not presented with sufficient prominence as it was further than one-click away.
As with the second Betway decision above, it seems clear that the ASA requires all qualifying information or terms and conditions on websites to be within one click of the original statement.
- WHG Trading & WHG ( International) Ltd t/a William Hill Online, 26 June 2013
A TV ad for William Hill Live Casino opened with a close-up of a woman who opened her eyes and looked at the camera. The camera then panned out and down, past the model’s chest to a roulette wheel. The ad then showed a ball spinning around a roulette wheel and then cut to a scene showing a large pile of gambling chips being pushed towards the viewer. The voice over said “Experience a live casino like no other”, showing several female croupiers in basque-style tops and male croupiers in suits.
The Gambling Reform and Society Perception Group and one other complainant challenged whether the ad linked gambling to seduction.
William Hill Online said that the ad did not make any claims or connotations that gambling increased a consumer’s sexual success, or enhanced their attractiveness, nor did it make a link between gambling and seductiveness. William Hill argued that it tried to match, as closely as possible, the experience a consumer would find in a London Mayfair casino, and that the clothing worn had actually been the uniforms worn by its staff in their live casinos and were standard style.
Clearcast said that because the ad did not show anyone gambling, there could be no link to seduction, sexual success or enhanced attractiveness.
The ASA upheld the complaint. It took the view that the close up shot and the manner in which the camera had focused on the model’s eyes and then panned out to the roulette wheel used the focus on her eyes to engage the viewer, which could be interpreted as a signal of attraction. The ASA suggested that the way in which the camera had panned down over the woman’s chest also enhanced the sense of seduction, which was further reinforced by the uniforms worn in the ads. Although the uniforms may have been standard clothing worn by actual croupiers, the ASA stated that that was not suitable justification for using them in the ad or showing sensual areas of a woman’s body.
The ASA acknowledged Clearcast’s comments but, because of the roulette and black jack tables, playing cards and gambling chip visuals and the references to “casino” in the voice-over and on screen text, considered the ad clearly to be a gambling ad.
The ASA has considered the issue of seduction being used as an advertising tool several times in the past, particularly in relation to ads for alcohol. In particular, in ruling on complaints made about Wells & Youngs Brewing Company Ltd in October 2012, the ASA drew a distinction between linking alcohol with romance and flirting, for which there is no prohibition, and sexual success and seduction. It seems there is a fine line between “flirting” and “seduction”, and advertisers should interpret these terms cautiously. The decision in relation to William Hill is perhaps unsurprising, given the sensitivities surrounding gambling.
- Dreamscape Networks Ltd, 5 June 2013
A TV ad featured Pamela Anderson chairing a meeting with a boardroom of men, being poured a cup of coffee by her assistant and then being asked if she wanted cream. The assistant’s cleavage then became visible to one of the men, who began to fantasise about the two women dancing in bikinis covered in cream. The final scene then showed the assistant pouring a cup of coffee, leaning on the man and showing her cleavage again. Clearcast had cleared the ad to be broadcast after 9pm.
Four complaints were brought claiming that the ad was offensive, sexist and degrading to women.
Dreamscape Networks stated that the ad was not degrading to women as it portrayed Pamela Anderson and her assistant as successful confident businesswomen, which was in contrast to the under confident male character. Dreamscape maintained that the ad was intended to be a humorous, exaggerated parody of office stereotypes. Clearcast recognised that it might be considered offensive to some viewers, but it took the view that it was not likely to cause general widespread offence.
The ASA upheld the complaint, judging the ad to be sexist and degrading to women. Although appreciating that the ad was intended to be a humorous parody, the ASA considered that women were portrayed sexually throughout the ad and thought of by the male character as sexual objects. Advertisers should be aware to the fact that the ASA often takes a conservative approach to such ads, for example when it imposed an ex-kids restriction on a Chanel fragrance TV ad featuring Keira Knightly in February 2013.
- Trademark Renewal Service Ltd, 5 June 2013
A direct mailing was headed with the advertiser’s name and address and a logo bordered with the words “TRADEMARK RENEWAL SERVICE”. The word “Reminder” appeared in bold above various boxed sections of the form. Text at the bottom of the leaflet stated that signing the document was authorisation for Trademark Renewal Service Ltd to renew a trade mark and to represent the applicant in the renewal procedure with the Intellectual Property Office.
A recipient challenged whether the overall presentation of the mailing was misleading because it was not clear that a private company, that had no affiliation to the UK IPO, had sent it.
Trademark Renewal Service Ltd (TRS) argued that all correspondence and stationery it issued stated that it was a private limited company and therefore could not be a government department or affiliated with the IPO. TRS also argued that the section that stated “We agree and confirm that we have read and comply with the terms and conditions stated on the back of this document” meant that anyone that had passed even a cursory glance over the Ts and Cs would be aware that the company had no affiliation with the IPO.
The ASA upheld the complaint. The ASA highlighted that the IPO offered a similar service to TRS in that the IPO too sent reminder letters, albeit in a different form to TRS’s mailing, to businesses whose trade marks were due to expire, inviting recipients to renew their marks alongside instructions on how to do so.
The ASA noted that the appearance of the mailing differed from many marketing letters as it was presented as a form. The fact that it displayed a barcode and extensive details of the trade mark in question gave, in the ASA’s view, the immediate impression of an official document that had been created by the body responsible for registering trade marks in the UK. Furthermore, the ASA suggested that the emboldened and dominant text did not clearly explain the status of TRS as a private company, or the exact nature of the service offered. The ASA ruled that the overall appearance of the mailing was not of a piece of unsolicited marketing by a private company.
The ASA acknowledged that some parts of the mailing elaborated on the nature of the services offered and TRS’s lack of affiliation with the IPO, however, it considered that these statements were not sufficient to counteract the overall impression created by the mailing. The ASA therefore concluded that the ad was misleading as it did not make it clear that there was no link between TRS and the IPO.
This is one example of an increasing number of unsolicited communications sent by companies requesting payment for trade mark and design services such as publication, registration, renewal or entry in business directories. The IPO has a warnings section on its website, and OHIM has recently issued this warning to alert owners of IP to such fraudulent, or at the least misleading, unsolicited communications. Whilst the upholding of a complaint by the ASA is to be welcomed, more stringent action is necessary if such companies are to be deterred.
- JDM Marketing Ltd t/a Bright Life UK, 12 June 2013
A direct mailing sent by a prize promotion operator included large text above the address panel on the envelope which stated “WRITTEN WARNING” and “GIFT CHEQUE DUE TO EXPIRE DUE TO YOU WILL BE FORFEITED AT MIDNIGHT 17 JANUARY UNLESS YOU SIGN AND RETURN THE REQUIRED PAPERS BY DEADLINE DATE.” Text underneath this stated “MARKETING COMMUNICATION”, along with the address of the operator. Text on the back on the envelope stated “NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE”.
Gloucestershire Trading Standards and two further complainants challenged whether the direct mailing was likely to cause undue fear and distress because the envelope suggested it was official correspondence and exaggerated the importance of the contents. A further complainant challenged whether the claim “NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE” was misleading as a second mailing, which appeared to be related to the same promotion, was received shortly afterwards.
The ASA upheld the first complaint: that the mailing was likely to cause undue fear and distress. It noted that the envelope featured text above the address panel which stated “WRITTEN WARNING” and, due to its size and location, the ASA considered the text to be the most prominent claim on the envelope and likely to alarm many recipients. Further, the ASA considered that the coat of arms above the words “Cash Distributors Processing Dept. Records Locator Centre” indicated that the mailing originated from an official source.
The ASA was concerned that some recipients would not associate the warning solely with the opportunity to enter a promotion and, as such, the alarming text, combined with the coat of arms, inflated the importance of the mailing. The ASA acknowledged the inclusion of the wording “MARKETING COMMUNICATION” at the bottom of the envelope but, due to its small size relative to the “WRITTEN WARNING” claim and its location away from other text, the ASA considered that it was not sufficiently prominent to make clear the commercial intent of the mailing.
In relation to the second complaint relating to the claim “NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE”, the ASA took the view that consumers were likely to understand that if they did not respond to the mailing before the specified deadline they would miss out on the opportunity to receive money to which they were entitled as part of the promotion.
The two mailings that the complainant had received related to separate promotions with different cash rewards and the envelopes did in fact contain different reference numbers. The ASA therefore took the view that the mailing was not contradictory or misleading in this respect and did not uphold this complaint.
This decision again – similar to the decision relating to Trademark Renewal Service Ltd - shows that the ASA looks to the words and phrases that are prominent when assessing the effect on recipients. Here, the fact that the warning was the most prominent message, combined with an official looking crest, led the ASA to determine that the ad was likely to cause distress.
- CORGI HomePlan Ltd, 5 June 2013
A mailing, a leaflet and the advertiser’s website featured claims in relation to a boiler maintenance plan called CORGI HomePlan. The leaflet featured various references to CORGI having been founded in 1970, to have been “Protecting homes since 1970”, and having over 40 years’ expertise. The ad stated that “In January 2011 all this experience and expertise resulted in CORGI HomePlan being launched.” The ad also included a comparison table that identified CORGI as the company and CORGI HomePlan as the product offered. The website featured the CORGI logo in a banner beside text that read “CORGI HomePlan” and the same comparison table.
A complainant challenged whether: (i) the use of the CORGI logo in conjunction with the claim “Protecting homes since 1970” on the leaflet misleadingly implied that Corgi HomePlan had been operating as CORGI since 1970; (ii) the reference to CORGI as a company and CORGI HomePlan as the product in the comparison table on the leaflet and website misleadingly implied that CORGI was responsible for the advertised product, but the complainant understood that CORGI HomePlan Ltd was responsible for the advertised product; and (iii) the use of the CORGI logo beside the text “CORGI HomePlan” on the website was similarly misleadingly.
In relation to the claim “Protecting homes since 1970”, the ASA upheld the complaint. It acknowledged the existence of a trade licence agreement between Corgi HomePlan (CHP) and Corgi Services Ltd (CS) that allowed use of the CORGI logo. The ASA took the view, however, that the number of references to CORGI in the leaflet would give consumers the impression that the party responsible for the product, CORGI HomePlan, had been operating as CORGI since 1970.
The ASA considered the footnote that explained that CHP had been launched in January 2011 was given less prominence than the claims on the first page and, furthermore, contradicted the impression that the party responsible for the product, CHP, had been operating as CORGI since 1970. The ASA therefore took the view that the ad was misleading.
In relation to the comparison table, the ASA took the view that consumers would understand the reference to CORGI as the “company” to mean it was the party responsible for the advertised product and had been operating as CORGI since the product’s inception and not as CHP. The ASA was therefore concerned that the ad might be misleading. The ASA again considered the footnote that explained the distinction between the companies to not be as prominent as the banner and the comparison chart.
In relation to the use of the CORGI logo on the website next to the text “CORGI HomePlan”, CHP stated that text at the foot of each page made it clear that CHP was part of the CS portfolio. The ASA took the view that consumers were likely to understand the reference to CORGI in the banner to mean that the party responsible for the advertised product had been operating as CORGI. The ASA again considered the information in the footnote to have not been prominent enough to avoid misleading consumers.
This complaint demonstrates that while information may be correct, the way in which it is presented is critical to avoid creating a misleading impression.