HEALTH AND BEAUTY

  1. Equine America (UK) Ltd, 6 April 2011

This adjudication concerned two adverts for a horse supplement in equine magazines. Both adverts stated "The following [products] have no objective clinical evidence of improving joint mobility”, followed by a list of products produced by other manufacturers including VetVits Ltd’s ‘EquiFlex’, and further comments that Equine America’s “Cortaflex” product “was successfully subjected to a double blind study of joint mobility at Michigan State University, Medicine Research Department. The rigorous study was led by world renowned clinician Dr Hilary Clayton BVMS, PhD, MRCVS. Force plates and six-camera Expert Vision Real Time were used to ensure that the findings were of the highest accuracy. The outstanding results of the study can be seen on the independent web site - www.jointsupplementresearch.com".

Complaint / Decision

Complaints were made by three different parties:

VetVits Ltd complained that the adverts misleadingly stated that EquiFlex did not have any objective clinical evidence of improving joint mobility, and that the adverts denigrated VetVits Ltd.

RAP challenged whether the claims that Equine America (UK) Ltd made concerning clinical studies on Cortaflex were misleading, because they understood that the trials had been conducted on a formulation of Cortaflex that was not available in the UK.

The ASA challenged whether the adverts misleadingly implied that Equine America had robust objective clinical evidence that Cortaflex improved joint mobility.

All of these complaints were upheld except for the first complaint made by VetVits.

In last month’s ASA Adjudications Snapshot we reported on the ASA’s finding concerning VetVits’ assertion in its advert for EquiFlex that the product was “clinically proven”, where it concluded that the scientific evidence relied upon for the claim was not sufficiently robust. In this adjudication the ASA followed its earlier decision, finding that the statement in the Equine America advert that there is "no objective clinical evidence of improving joint mobility" was accurate and was not misleading in relation to the competitor’s product.

The ASA, however, upheld VetVits’ second complaint and held that the advert was denigratory of VetVits Ltd as it implied that Equiflex was an inferior product compared to Cortaflex.

The study referenced in the adverts was carried out in 2002. The ASA considered that, because the active ingredients of the foreign and UK Cortaflex products were the same, the findings of the study were at that time applicable to the European formulation of the product. However, it decided to uphold the complaint made by RAP because the study was now out of date, and it did not reflect the formulation of Cortaflex then available in the UK.

The ASA considered that the reference to the clinical paper at the Joint Supplement Research website implied that it constituted the "objective clinical evidence" that Cortaflex "improve[d] joint mobility". The ASA also held that because Equine America stated in its response to the claim that this clinical paper was not the evidence on which they had based their claim, the adverts were misleading.

The ASA also noted that it had previously taken expert advice when considering the evidence on which Equine America had based this claim in a complaint about their advertising in 2004. The expert said that although the AAEP was a highly respected organisation of veterinary surgeons, the paper related to conference proceedings rather than being a peer-reviewed scientific journal. Because of this, the ASA considered that the trial on which both papers were based was not sufficient to substantiate the claim that Equine America had "objective clinical evidence" of Cortaflex's efficacy, and it concluded that the adverts were misleading.

This adjudication demonstrates the need for robust scientific evidence to be gathered, in order to substantiate claims. Any evidence relied upon in support of claims made in adverts must be contemporaneous (see also adjudication for Luv n’care Ltd t/a Nuby UK LLP in last month’s, and the Post Office adjudication in February’s, ASA Adjudication Snapshot).

  1. The Maperton Trust, 27 April 2011

The Maperton Trust’s website included text for a head lice repelling device stated "The Head Lice Repelling Unit (HELRU) is a small device using the latest technology to repel head lice from infesting children and adults."

Complaint / Decision

It was complained that the claim that the badge could repel head lice could not be substantiated.

The ASA upheld the complaint. It considered that the claims that the device could repel head lice were objective claims capable of substantiation, and because it had not seen such evidence in support of the claims it was concluded that the text on the website was misleading and upheld the complaint.

Although not surprising in its conclusion, this adjudication is of interest as it is the first adjudication in which the ASA has considered an advert placed on a website under its newly extended remit, which now includes on-line advertisements (for more information please see ASA’s remit to be extended to website content from 1 March 2011).

  1.  Trinity Mirror plc t/a Sunday Mail, 27 April 2011

The Sunday Mail included a competition advert to win laser eye treatment which stated "We've teamed up with Ultralase, the UK's leading vision correction specialist ... to give one lucky reader free ... laser eye treatment". It also stated "Ultralase has perfected the vision of over 125,000 people using state-of-the-art technology and the highest qualified team of surgeons in the UK. They are also the only laser eye specialist to offer a lifetime care guarantee".

Complaint / Decision

Optical Express complained that the following statements were misleading and could not be substantiated:

  1.  "the UK's leading vision correction specialist";
  2.  "the highest qualified team of surgeons in the UK"; and
  3.  "the only laser eye specialist to offer a lifetime care guarantee", because Optical Express also offered a lifetime care guarantee.

The ASA upheld all of the claims.

  1. The ASA concluded that the average reader of the competition would infer from the claim that Ultralase had the largest market share, and because evidence that Ultralase had the largest market share in the industry had not been provided, it was concluded that the claim was misleading.
  2. No evidence was provided to substantiate this claim, and therefore it was held to be misleading by default.
  3. The ASA considered that readers of the competition would understand from this claim that competitors did not offer any lifetime care guarantee whatsoever, even though Ultralase had apparently intended for the reader to understand that it was the only provider of a “true” lifetime guarantee. Because other companies do provide products that the general public would be likely to consider to fall within the loose category of ‘lifetime care guarantees’, the ASA concluded that the claim was misleading.

This adjudication is a reminder that for a company to state in an advert that it is ‘leading’ or ‘number one’ in a particular industry, it must be able to provide appropriate substantiation – the ASA always looks carefully at these types of claims. Also, advertisers should ensure that they consider the overall advertising message likely to be understood, rather than relying on the public recognising smaller technical differences that would differentiate the product from those made by competitors.

  1. Optimax Laser Eye Clinics, 27 April 2011

In this adjudication the ASA reviewed three Facebook adverts and one online promotion that a complainant saw in July 2010 advertising “half-price” laser eye surgery, which stated:

(a) “Enjoy life without glasses Get Half Price Off laser eye surgery with Optimax. Order your Free Info Pack. Click here”;

(b) “FREE Info Pack 50% off laser eye surgery. Get half price laser eye surgery with Optimax ... Click here”;

(c) “FREE Info Pack Get Half Price Off laser eye surgery with Optimax ... Click here”; and

(d) “1/2 Price Laser Eye Surgery”. A comparative table was headed “You save up to £2395 - HALF PRICE”. The table compared prices for “high” and “mild” prescriptions for Optimax, Ultralase and Optical Express. Under the heading "Optical Express" the cost of "Mild Prescriptions" was listed as £3,190.

Complaint / Decision

Optical Express complained that the first three adverts were misleading because they implied:

  1. a half-price reduction against the advertiser’s normal price;
  2. that all customers would be able to save 50%, but that was not the case; and
  3. that the website promotion misrepresented the cost of their "Mild Prescription" laser eye surgery.

All three complaints were upheld.

  1. The ASA concluded that the first three adverts implied that Optimax was promoting its own laser eye surgery at half of the usual price but that that was not the case. However, the offer was instead a comparative claim that consumers could save up to half price against their competitors’ prices and was therefore misleading.
  2. The first three adverts also implied that all consumers could benefit from a half price reduction in the price of Optimax laser eye surgery, and because the half price saving was not available to all consumers the ASA concluded that the adverts were misleading.
  3. The ASA also concluded that, although Optical Express had a range of prices for a variety of prescriptions, there was no accepted medical definition of what constituted a high or mild prescription. Optimax did not persuade the ASA that they had selected the most suitable procedure for comparison and therefore the ASA concluded that the pricing information contained in the table was misleading.

This adjudication demonstrates the need for care and clarity on price claims and that advertisers should ensure that they select the most appropriate data available as means of comparison.

  1. Optical Express Ltd, 27 April 2011

This adjudication concerned a brochure and a TV advert for Optical Express's laser eye surgery.

(a) the brochure was titled “The vision care specialists” and featured a testimonial from the golfer Padraig Harrington on the inside front cover which stated “I want to be treated by the best and that’s Optical Express”. The brochure contained a variety of claims about Optical Express’s service and the technology they used. The back cover listed a number of comparative claims with ticks and crosses indicating that the listed services were offered only by Optical Express and not by other providers;

(b) the TV advert featured the same golfer, again discussing why he chose laser eye surgery. He said “People often ask me: how can I improve my game? I tell them the secret is to stay focused. And of course it’s important to have great vision. I need to be able to look down the line, focusing clearly on the target. My advice? Visit Optical Express, Europe’s number one provider of laser eye surgery.”

Complaint / Decision

Ultralase Ltd complained that a total of 25 different claims made in the adverts were misleading, all but two of which were upheld.

The following aspects of the ASA’s adjudication are of particular interest:

  1. The ASA considered that the claim "... our clinical excellence is well documented in leading research journals across Europe and the US" would be interpreted by readers to mean that Optical Express had been widely documented as having particularly high standards of treatment and care in independent, peer-reviewed articles published by reputable international journals. The selection of other articles and extracts from online news magazines provided by Optical Express consisted of short discussions of laser eye technology and treatment in general, and did not assess the clinical practice of Optical Express. Because of this, the ASA decided that these articles were not suitable to support the claim made in the advert, and therefore the claim was misleading.
  2. The ASA noted that Optical Express had been advised by a senior, former member of US Navy staff that servicemen were treated using the VISX S4IR laser. However, a written copy of that advice was not provided and the ASA did not consider that anecdotal evidence was sufficient to support the claim that all servicemen in the US Navy who required eye surgery were treated with the VISX S4IR laser and Wavefront technology. Because of this the claim was found to be misleading.
  3. The ASA noted that the TV advert did not contain a specific statement that Padraig Harrington had had laser eye surgery, or that he had had laser eye surgery at Optical Express. However, it considered that the claims "And of course its important to have great vision ... My advice? Visit Optical Express, Europe’s number one provider of laser eye surgery" and "It could help your game too" were likely to be interpreted by viewers as a claim that Mr Harrington had experience of the benefits of laser eye surgery at Optical Express. Because that was not the case it was concluded that the advert was misleading.

This adjudication illustrates the importance of considering implied claims in adverts and the need to ensure that any substantiation relates to the product that is being advertised, rather than to a general class of that particular type of product.

  1. MyCityDeal Ltd t/a Groupon, 27 April 2011

This adjudication concerned a sales promotion on the website Groupon MyCityDeal, which stated "Today's deal: £9 instead of £30 for a 20 Minute Garra Rufa Fish Natural Pedicure for Two People at Wonderfeet".

Further text stated "Fine Print - 1 voucher per two people, multiple may be purchased - Voucher valid for 2 months, 7 days per week - No need to book in advance but please take voucher and security codes with you - Please call 07863 XXX XXX for further information - Not valid with other offers".

Complaint / Decision

One person complained that the promotion was not conducted fairly because when they attempted to redeem the voucher they were told that it could not be used at the spa.

The ASA upheld the complaint, even though it acknowledged that the actions of a member of Wonderfeet’s staff were outside Groupon’s control, and that Groupon had fully refunded those voucher holders who had complained. However, it considered that it had not been provided with sufficient information to be able to judge the scale of the problem, or the specific actions that Groupon took to rectify the situation. Because of this, the ASA concluded that Groupon had not demonstrated that they had taken all reasonable measures to ensure voucher holders had been dealt with fairly and honourably, nor that voucher holders had not been given cause for unnecessary disappointment. Therefore the advert was found to be misleading.

This latest adjudication in relation to the relatively new e-commerce company Groupon (engaged in the relatively new concept of “group buying”), demonstrates that even in novel business practices the same advertising principles will still apply. Particularly in this scenario, where Groupon relies on third party providers of services and goods to fulfil the promotions, care must be taken to ensure that appropriate steps are taken to seek to ensure the benefits advertised are provided, and that the adverts make clear any reservations in this respect.

RETAIL

  1. Jack Wills Ltd, 6 April 2011

In this adjudication the ASA reviewed four full-page adverts for Jack Wills clothing, which appeared in the 2011 edition of the manufacturer’s "Spring Term Handbook". The first advert showed a young woman with her upper thigh, buttocks and the lower section of her knickers visible. The second advert included a young man removing a young woman's top to reveal her bra. The third advert showed a small group of young men and women at a distance running out of the water and wearing only their underwear. The final advert showed a young man and a young woman embracing and kissing. The man was topless and the woman was wearing only knickers with the side of her breast clearly visible, and her left leg raised and wrapped around the man who was holding it in position.

Complaint / Decision

Nineteen members of the public objected that the adverts were offensive and unsuitable for publication in a clothing catalogue that was targeted at and seen by teenagers.

The ASA upheld the complaint. Although all recipients of the Jack Wills catalogue had confirmed they were over the age of 18, the ASA considered that some under 18-year-olds might have viewed or received the catalogue. It was noted that the images in the catalogue were intended to tell a fun, hedonistic and flirtatious story of university life and that adverts would be appealing to younger teenagers because they portrayed a lifestyle to which they might aspire. Because of this, and that each of the images contained partial nudity and because the fourth image in particular was overtly sexual in nature, the ASA concluded that the catalogue was sufficiently provocative as to present a risk to younger teenagers and was therefore offensive.

Sexually explicit adverts are always a sensitive area for the ASA. This adjudication follows another adjudication concerning the risk of children viewing inappropriate marketing materials, with respect to ESPN Ltd, a summary of which was included in our February ASA Adjudications Snapshot, but where the TV advert in question was broadcast at a time when the ASA considered few children were likely to see it.. This demonstrates the need for very careful targeting when dealing with potentially offensive advertisements and the need to take care to consider potential audiences (planned and unplanned) for any advertising material.

  1. B&Q plc, 6 April 2011

This adjudication concerned a national press advert, for B&Q which included the text "Loft insulation only £1 per roll". Further text, next to a picture of a woman laying the insulation, stated "easy to install".

Complaint / Decision

One reader complained that the advert irresponsibly condoned, and might encourage, unsafe practices, because the woman was shown installing the loft insulation without using a face mask or protective clothing.

Upheld: the ASA decided that the woman should have been shown following recognised safety precautions and advice when using the insulation and that the image was irresponsible and likely to be seen to be condoning unsafe practices.

Although on the face of it this is possibly a rather harsh decision, the ASA is always alert to issues of health and safety in advertisements (see also the Citroen advert below). The requirement that people featuring in adverts, and other people shown in the media who are considered to be role models, should wear safety equipment also appears to be a recurrent theme in the media. News stories, such as the Queen riding without a helmet, are evidence of a growing awareness by the general public of the importance of following health and safety advice, so the ASA’s finding in this adjudication can be seen as in keeping with this current trend. Advertisers should always ensure that any images in their adverts show people following appropriate health and safety rules and regulations, and to follow any guidelines provided with any of the products that they are promoting.

MOTORING

  1. Citroen UK Ltd, 27 April 2011

In a TV advert for Citroën, a cyclist pulled up behind a Citroën C4 at a set of traffic lights on a busy urban street. Other cyclists joined him until there was a large crowd of cyclists pursuing the C4. At the next junction, the C4 pulled away and lost the cyclists, who appeared disappointed until one of them spotted a different C4 travelling in the opposite direction. The cyclists turned at the junction and followed the other C4. A voice-over stated "The new Citroën C4 eHDi engine uses power only when you're moving, meaning less CO2 and lower fuel costs. It's what we call positive power." An end frame featured the Citroën logo.

Complaint / Decision

One viewer, who noted that none of the cyclists featured in the advert were wearing cycling helmets, challenged whether the advert was appropriate to be broadcast at times when children were likely to be watching, because it could condone and encourage behaviour prejudicial to their health and safety.

The ASA upheld the complaint. The ASA accepted that adults and older children would understand that the scenario depicted in the advert was fantastical and set apart from reality, because of the sheer number of cyclists involved, the lack of cars in their immediate vicinity and the fact that they were cycling in unison and chasing the C4. It therefore concluded that the advert did not condone behaviour prejudicial to the health and safety of adults and older children and that the advert was unlikely to cause harm to them.

However, its decision was different with respect to younger viewers because it considered that younger children might not appreciate the fantastical nature of the advert, and might consider that it represented a real-life scenario. The ASA was therefore concerned that the advert might encourage younger children to emulate a behaviour prejudicial to their health and safety, and concluded that the advert should have been given an 'ex kids' scheduling restriction to ensure that it was not broadcast at times when younger children were likely to be watching. This adjudication can be contrasted with the adjudication relating to an advert for Diet Coke featuring the singer Duffy, where the advert did have an ex-kids restriction (ASA Adjudications Snapshot June 2009).

The subject matter of this adjudication reiterates the conclusions in relation to the above adjudication concerning B&Q and the ASA’s sensitivity to the issue of health and safety. This relates also to the issue of targeting of adverts and the need for advertisers to take care with targeting of any adverts that may be considered unsuitable for children.

HOUSEHOLD

  1. Morphy Richards Ltd, 6 April 2011

In this adjudication, the ASA reviewed a catalogue advert for a vacuum cleaner which included the text “NO LOSS OF SUCTION!*”, and in small print “*BS EN 60312:1998”.

Complaint / Decision

Dyson Ltd complained that the claim "NO LOSS OF SUCTION!*" was misleading and could not be substantiated.

The ASA noted Morphy Richards had tested the products featured in their advert against the relevant industry standard, together with the test results submitted, and sought expert advice.

The ASA upheld the complaint. Although the ASA considered the relevant small print qualified the "NO LOSS OF SUCTION!*" claim by reference to the independent testing of the advertised vacuum cleaners, it was noted that the industry standard Morphy Richards used involved test methods and materials that were not acceptable to loss of suction claims, because they had not been correlated with household situations. These methods were subsequently replaced to use a mixture of materials that did correlate with household dirt, and Morphy Richards also tested against the replacement standard but used materials that had not been approved for that method. Therefore, the ASA considered that neither of the tests could be said to support the claim, and it was therefore concluded that the claim "NO LOSS OF SUCTION!*" was misleading.

Advertising claims for vacuum cleaners is always highly competitive and therefore subject to scrutiny by competitor advertisers. It is also a highly technical area, where advertisers need to take care and check with the appropriate guidelines provided by CAP in its Help Note on vacuum cleaner marketing. The ASA’s decision in this adjudication again emphasises the need for advertisers to provide the ASA with relevant up-to-date evidence that fully substantiates the claims being made.

FOOD AND DRINK

  1. Noble Foods Ltd, 6 April 2011

This adjudication concerns two adverts:

(a) the first was a TV advert that showed chickens running around in fields and jumping into sand pits to the music from Chariots of Fire. The voice-over stated “at the Happy Egg company we do things differently. We create the perfect environment for our free range hens to run, jump and play, because happy hens lay happy eggs and happy eggs are wonderfully tasty.”

(b) the second advert was placed in the national press and stated "... imagine for a moment you're a hen ... on a happy egg co. farm You're living in the perfect environment with space to run, jump and play in idyllic open countryside. You're fit, healthy and have lots to do - no wonder you're happy!" The image showed hens outside.

Complaint / Decision

Thirty-nine viewers who had also seen a TV news report on conditions at two of Happy Egg Co's farms made complaints.

  1. Thirty-five viewers claimed that the first advert misrepresented conditions experienced by Happy Eggs' chickens;
  2. One person complained that the second advert misrepresented conditions experienced by Happy Eggs' chickens;
  3. Seven viewers complained that the third advert misleadingly implied that Happy Eggs' chickens were free range.

None of the complaints were upheld:

1 and 2) the ASA reviewed the Happy Egg Co's comments and the RSPCA's comments on the news report and acknowledged viewers’ concerns that the news report contradicted the impression created by the advert. However, the ASA also understood that the report did not reflect conditions at all farms that supplied the Happy Egg Co, and according to the RSPCA had not explained that the birds who were suffering were already under veterinary supervision for a specific condition which caused feather loss. Happy Egg Co had responded to the two compliance issues identified in the RSPCA's inspection of the sites in question.

The ASA considered that most viewers would see the adverts to be a humorous depiction of the life of a Happy Egg Co chicken, rather than that the chickens really did take part in the activities shown in the adverts. Because of this, and because the Happy Egg Co sent the ASA evidence that showed they adhered to the RSPCA Freedom Food Scheme, used gold and platinum graded free-range farms only, and had invested in activity kits for their chickens, it was concluded the advert was not misleading;

3) The ASA noted that the evidence provided by Happy Egg Co showed that all farms were free range, and therefore concluded the advert was not misleading on this point.

Health, food and the treatment of animals are always sensitive areas likely to attract complaints to the ASA. This adjudication is also interesting because it shows the strong influence that news programs and documentaries have on viewers. It also highlights the importance for advertisers to respond with adequate evidence to the producers of such TV programs to mitigate the risk of bad publicity being created for their products.

HOLIDAYS AND TRAVEL

  1. Money Supermarket.com Ltd, 27 April 2011

In this adjudication the ASA reviewed a TV advert for a travel comparison website which depicted Jedward sitting on sun loungers by a swimming pool. The comedian Omid Djalili approached them and asked how much they had paid for their holiday. One of Jedward said "£300" and the other said "£500". Djalili asked "Where did you find it?" The first said "travelsupermarket" and the second said "travel agent", then "You paid £200 less than me?". Djalili said "For the exact same holiday. You can compare thousands at travelsupermarket.com." The advert concluded with a jingle which said “Save super amounts of money at travelsupermarket”.

Complaint / Decision

Pole Travel Ltd and PR World Travel, together with two members of the public, complained that the advert:

  1. exaggerated the typical amount that consumers might save by booking through travelsupermarket.com as compared to directly with a travel agent;
  2. misleadingly implied that travelsupermarket.com would always be cheaper than booking directly with a travel agent.

1) The ASA upheld the first complaint. It did not consider that the advert exaggerated the savings as calculated from travelsupermarket’s research, because it showed that they offered the five holidays at between £204 and £400 lower than the prices advertised in the travel agents’ brochures and the advert quoted a saving at the lowest end of that scale. However, the ASA was concerned that it had not seen information with regard to the date on which the comparisons identified in the research were made, or whether the brochures used to compare prices included the most up-to-date pricing information available. It considered that without that information it would not be possible to determine whether or not the comparisons were fair.

The ASA also considered that it was likely that consumers booking directly with a travel agent would receive discounts off the brochure price and that therefore the prices listed in the brochures were not representative of the prices typically paid by consumers who booked directly with a travel agent. Furthermore, the ASA noted that all of the travel agents with whom travelsupermarket.com had compared prices offered their holidays online, and that, for the comparisons to be truly like-for-like, travelsupermarket.com should have compared their prices with the travel agents online prices rather than those advertised in their brochures. These prices would be the most up-to-date and would reflect the actual price that consumers would have paid for the holidays. Because of this, and that the claim made by travel supermarket was based on research of only five holidays, the ASA found that the advert was misleading;

2) However, the ASA did not uphold the second complaint. Although the advert implied that consumers could typically save money by booking through travelsupermarket.com, the ASA did not consider that it suggested that travelsupermarket.com would always be cheaper than booking directly with a travel agent. The ASA therefore concluded that the advert was not misleading on this point.

This adjudication is of interest as it serves as a reminder to advertisers that they should consider carefully the most appropriate information to use for comparative claims in their adverts, including use on-line, because this information is likely to be the most contemporary evidence available.  

This article provides a selection of the most interesting ASA adjudications from April and a summary of the key issues considered in those adjudications.

During this month the ASA made the first adjudication in relation to claims on a company website under their extended remit, albeit with an unsurprising outcome. The adjudications reviewed include pricing, offensiveness and targeting, health and safety concerns, food, and a number of comparative claims, including “number one” claims particularly in the highly competitive vision care market. The adjudications also reinforce the ASA’s requirement for specific and contemporaneous substantiation, in particular where scientific evidence is relied upon.