This summary provides a selection of the most interesting ASA adjudications in October and highlights the key issues considered in those adjudications.
Of particular note this month were four complaints relating to misleading or unsubstantiated health claims that featured in ads for health and beauty products. The ASA maintains a strict approach in respect of health claims that do not feature on the EU Register or cannot otherwise be substantiated and, as such, three out of four of the complaints were upheld. Advertisers must remember to ensure that they are able to provide satisfactory evidence supporting any specific claim made in an ad relating to the efficacy or impact of health related products.
The ongoing battle between broadband and digital television providers continued to rumble on as a Virgin Media ad was once more subject to complaints from B Sky B, this time for misleadingly implying optional extras were automatically included in the advertised bundle. The ASA also continued to maintain its robust stance on motoring ads that feature excessive speed or are perceived to encourage irresponsible driving, by upholding complaints of this nature against Toyota and BMW. Finally, and in another continuing theme, ads for electronic cigarettes were once again subject to a number of complaints.
1. The Claims Guys Ltd, 1 October 2014 (two ads that appeared on Facebook news feeds were found to be misleading for not making clear who the advertiser was)
2. WDFC UK LTD t/a Wonga, 8 October 2014 (an ad for pay-day loans was found to be in breach of the Code for not disclosing the RAPR even though the ad included incentives which triggered the requirement to do so)
HEALTH AND BEAUTY
3. Firstkind Ltd t/a firefly, 1 October 2014 (a website selling a muscle recovery product was found to have made misleading and unsubstantiated claims in respect of the efficacy of the product)
4. E.T. Browne (UK) Ltd, 15 October 2014 (an ad for skin cream was found not to be misleading as claims made in it pertaining to the efficacy of the product in question could be substantiated)
5. Boots UK Limited, 29 October 2014 (a website promoting a back pain relief product was found to have made misleading claims in respect of the efficacy and natural properties of the product)
6. Vitabiotics Ltd, 29 October 2014 (a national press ad for a vitamin supplement was found to be in breach of the Code for making unauthorised health claims)
7. Ten Motives Ltd, 8 October 2014 (a mailed circular for e-cigarettes was held to be irresponsible as it was likely to appeal directly to children)
8. Cygnet UK Trading Ltd t/a blue Cigs, 15 October 2014 (a TV ad for e-cigarettes was found not to be irresponsible as it was unlikely it would appeal directly to people under 18 years of age)
9. Moonpig.com Ltd, 22 October 2014 (a TV ad for flowers was found to be misleading for suggesting that it featured British flowers when it did not)
10. InterContinental Hotels Group plc t/a IHG, 15 October 2014 (a website was found to be misleading for not providing material information contained within its terms and conditions in a prominent enough location)
11. BMW (UK) Ltd, 15 October 2014 (a TV ad was found to be in breach of the Code for featuring and encouraging aggressive and unsafe driving)
12. Toyota (GB) Plc, 29 October 2014 (a TV ad was found to be in breach of the Code for featuring and encouraging unsafe driving)
13. MoneyExpert Ltd t/a Mighty Deals, 1 October 2014 (a website promotion was found to be misleading for failing to clearly demonstrate the basis of a savings claim it made)
14. Poundworld Retail Ltd, 8 October 2014 (a website ad that stated “everything £1” was found to be misleading as there were items for sale which were not priced at £1)
15. Virgin Media Ltd, 15 October 2014 (a TV ad and a press ad were found to be in breach of the Code for making a number of misleading comparative claims and for implying certain products were included in a service bundle when they were not)
Two sponsored ads for a claims management company appeared in selected recipients’ ‘News feeds’ on Facebook:
a. The first ad was headed “Bank Refund Applications”. Text stated, “Lloyds TSB Customers: Refunds are being made to many people who have had a Lloyds TSB account, and have been mis-sold insurance sometimes without their knowledge. Please click below to start your application online ...". An image containing buildings featured below this and had the following text superimposed onto it, “LLOYDS REFUNDS”, with further text stating “Lloyds TSB Account Refunds Ever had an account with Lloyds TSB?...bank-account-refunds.co.uk”.
b. The second ad was also headed “Bank Refund Applications” but this time featured text stating, “Refunds for Lloyds Account Holders: A large number of policies were mis-sold alongside Lloyds loans and credit cards, and you could be entitled to a refund”. A cartoon image of raised hands against a dark green background included the text “Don’t be the last to claim your Lloyds Refund”.
Lloyds Banking Group (“Lloyds”), in relation to both ads, and a member of the public, in relation to ad (b) only, challenged whether the ads:
1. did not make the advertiser’s identity clear: and
2. misleadingly implied that the advertiser was Lloyds or was affiliated with Lloyds.
The ASA upheld both complaints.
1.&2.The Claims Guys stated that the description of the ads provided by the ASA was incomplete and only reflected text boxes that linked through to the full ads, which contained clear references showing that The Claims Guys were the relevant advertiser. The ASA acknowledged that the ads which appeared on Facebook news feeds did link through to other pages, however they did not consider that these separate websites constituted part of the actual ads. As such the ASA considered that the ads were materially misleading because they did not make clear who the advertiser was.
The Claims Guys also contended that none of the wording or branding in the ads suggested it was Lloyds who was offering the advertised service. The ASA disagreed with this perspective and considered that the colour used in the ads was clearly associated with the Lloyds brand. They also felt that the repeated references to Lloyds in the ads, as well as the lack of any mention of The Claims Guys themselves, meant that it was far from clear that the advertiser was not Lloyds or a company affiliated with them and as such the ad was also misleading on this account.
This adjudication is indicative of the tough stance the ASA will often take in respect of ads that do not make clear who the advertiser is, or alternatively seek to pass themselves off as representing another entity. This issue appears to have become especially prevalent among ads featuring on Facebook news feeds, presumably partially due to the limited space available in these ads, but also featured in a number of recent adjudications by the ASA on ‘copycat’ websites.
2. WDFC UK Ltd t/a Wonga, 8 October 2014
A TV ad for payday loans featured a man in financial difficulties. This image was replaced by an animation of an elderly woman saying “you appear to be in a financial quandary, young fellow. At Wonga you can choose exactly how much you borrow and for how long”. The man asked “really?” and the animated character replied, “yes – you can even pay back early and save money”.
Complaint / Decision
The Citizens Advice Bureau challenged the ad on the following grounds:
1. that the ad was harmful and irresponsible because “you appear to be in a financial quandary” implied that a payday loan could be obtained for non-essential purposes; and
2. that the ad breached the Code by omitting the Representative Annual Rate (“RAPR”), as “you can even pay back early and save money” was an incentive likely to trigger the requirement to disclose the RAPR.
The ASA did not uphold the first complaint, but upheld the second one.
1. WDFC UK Ltd t/a Wonga stated that it was clear to an ordinary reasonable viewer that the man in the advert required money to purchase replacement parts for his car and that this constituted an ‘essential purpose’ under the Code. They further argued that ‘quandry’ should be interpreted in a broad sense as meaning ‘difficult situation’.
The ASA considered that, while the voice over statement “financial quandary” did not specify what type of situation the lead character was in, the list of motor-related expenses shown in the screen indicated the loan was for essential repairs to his car. The ASA considered it unlikely that a consumer would interpret the ad as suggesting the money would be used for an unnecessary purchase and therefore concluded that it was not irresponsible or in breach of the Code.
2. Wonga accepted that an incentive to apply for credit was a trigger for disclosure of RAPR, but considered the phrase “you can even pay back early and save money” was not an incentive under the Consumer Credit (Advertisements) Regulations. The ability to repay a loan before it was due was a standard feature of many loan products.
The ASA acknowledged Wonga’s assertion that the statement that consumers could “save money” was a factual statement of a feature of their service, but stated that the inclusion of the phrase “save money” was superfluous to a purely descriptive statement. It also offered a discount relative to the headline cost of borrowing for the loan period originally requested and, as such, the ASA considered this an incentive to apply for credit and that the RAPR should therefore have been disclosed.
The ASA also noted that, appearing immediately before the “save money” claim was the phrase “at Wonga”. They considered that consumers were likely to interpret this to mean the following services were exclusive to Wonga. Therefore, it was likely the “save money” claim would be interpreted as a comparison against other lenders and, notwithstanding the presence of an incentive to apply for credit, the RAPR should also have been disclosed because of the presence of a comparative indication. It was concluded on this basis that the ad breached the Code.
This ad is illustrative of the strong focus the ASA places on ads for pay-day loans and reminds advertisers to careful that nothing in their marketing material is likely to be perceived as inducing consumers, especially financially vulnerable ones, to carry out irresponsible behaviour.
3. Firstkind Ltd t/a firefly, 1 October 2014
A website promoting sports accessories, www.fireflyrecovery.co.uk , included the following text on its homepage: "FIREFLY. Recover 2 times faster, reduce DOMS [delayed onset of muscle soreness] within 24 hours and improve sports performance with firefly". A tab on the homepage then read, "What is the Firefly?" and included the claim "REDUCES DOMS WITHIN 24 HOURS (CLINICALLY PROVEN)". Delayed Onset Muscle Soreness (“DOMS”) occurs following high intensity exercise.
The complainant challenged whether the claims in the ad to ‘reduce DOMS’ were misleading and could be substantiated.
The ASA upheld the complaint. They considered that the claim ‘REDUCES DOMS WITHIN 24 HOURS’ would be interpreted by consumers as meaning that using the product would result in a significantly noticeable reduction in DOMS.
The ASA examined a number of clinical trials provided by Firstkind that assessed the device. Firstly they noted that the papers examining the efficacy of the Firefly device had been submitted for review but were unpublished and without peer review when the ad was seen by the complainant. The ASA considered that at this point the papers should have been available; however they also felt that this alone was not a basis upon which to uphold the complaint. Nonetheless, they also understood that both trials showed a measurable reduction of DOMS, but that this reduction was not as significant as would be expected by a consumer upon reading the claims in the ad. As such, the ASA found the ad and the claims within it to be misleading and unsubstantiated and therefore in breach of the Code.
This is an unsurprising adjudication and reminds advertisers that, when basing claims on data procured from clinical trials, the ASA will expect those trials to be both published and subject to peer review. It also illustrates that any clinical evidence must be able to fullysupport any claims of efficacy made in the ad.
4. E.T. Browne (UK) Ltd, 15 October 2014
A TV ad for Palmer’s Skin Therapy Oil featured three women talking about the product. A voice-over also stated “Palmer’s Skin Therapy Oil is a unique formula that helps improve the appearance of scars, stretch marks, dry, damaged skin, uneven skin tone and ageing skin”. On-screen text stated “89 of 100 women agree (after 8 weeks daily use)”.
The complainant challenged whether the claim “helps improve the appearance of scars, dry, damaged skin, uneven skin tone and ageing skin” was misleading and could be substantiated.
The ASA did not uphold the complaint. E.T. Browne (UK) Ltd said that they had been assisted in testing the efficacy of their product by a laboratory and also submitted two reports as evidence to substantiate the claim made in the ad. The reports each contained a survey that had been completed by 100 women who had trialled that product for eight weeks.
The ASA acknowledged the evidence provided by E.T. Browne and noted that the ad included text designed to make the basis of the claim in question clear. They considered that viewers would understand from the on-screen text that the ad’s claim that the product would “help improve the appearance of…skin” was based on the women’s self-assessment after eight weeks of using the product. The surveys provided by E.T. Browne illustrated that 89% of the women involved agreed that the product produced the claimed effect and, as such, the ASA concluded that the claim as set out in the ad could be substantiated and the ad was therefore not misleading.
That the ASA elected not to uphold this complaint is illustrative of the fact that E.T. Browne only made a fairly low-level and limited claim, which they were able to fully substantiate with the evidence they provided. This adjudication serves as a contrast to that outlined in number 3 above, where the advertiser made a much bolder claim that they were then unable to fully substantiate, leading to a complaint against them being upheld.
5. Boots UK Limited, 29 October 2014
The Boots website (www.boots.com) featured a pain relief patch manufactured by Philips. The website stated "The Philips Blue Touch Patch offers a natural, drug-free way to treat back pain ... Blue Touch emits a specific wavelength of blue light that stimulates the body's natural healing process". Under the heading "Detailed product information" the ad stated "Treats the symptoms of musculoskeletal back pain ... Clinically proven technology ... Aids recovery and repair of damaged muscles".
Two complainants challenged whether the following five claims made in respect of the product were misleading and could be substantiated:
2. “Treats the symptoms of musculoskeletal back pain";
3. "Aids recovery and repair of damaged muscles”;
4. "stimulates the body's natural healing process"; and
5. "Clinically proven technology".
The ASA upheld the complaints against all five claims. Phillips responded on behalf of Boots UK Limited.
1. Although the ASA accepted that blue light was part of the spectrum of sunlight, it was considered that consumers would expect ‘natural’ to mean that the product had not been manufactured. The light was from an artificial source so the claim was held to be misleading.
2.& 3. The ASA stated that from these claims, consumers would understand that the product provided an effective treatment for back pain and its symptoms, causing no need for further treatment. However, the study showed that the difference between the placebo results and the product’s results was not statistically significant and any improvements were short term only. Therefore the product was not an effective treatment for back pain and its symptoms.
In addition, consumers were believed to expect the primary mode of action to be the blue light rather than the warmth, but the ASA found that it was not clear from the study which had a greater effect. In relation to the study itself, the ASA did not consider that in vitro studies, animal or online encyclopaedic entries were suitable evidence to support the claims made by the device, which should be based on experimental human subjects. Finally, as the study was not published and therefore not peer reviewed, this was likely to undermine the authority of the report and both these claims were held to be misleading.
4. Philips claimed that the product stimulated the release of nitric oxide, thereby causing a natural healing process. However the ASA held that there was no clear evidence to show that the amount of nitric oxide produced as a result of using the product was any more than that which the human body could be expected to produce unaided and accordingly this claim was found to be misleading.
5. The word ‘proven’ in the context of this claim was considered to suggest that the product was superior to a placebo device for the treatment of musculoskeletal back pain and repair of damaged muscles. However, the ASA noted that it requires a sound body of evidence to support efficacy claims and the evidence in this instance was not adequate enough. Therefore the claim could not be substantiated and was misleading.
This is another example of the ASA upholding complaints against ads where the evidence provided by the advertiser was either not directly relevant to, or alternatively did not fully substantiate, the claims that were made in the ad. In this particular instance, even though the studies provided as evidence by the advertiser featured a placebo by way of a control group, the ASA noted that they had not been published or peer reviewed and were unsatisfactory in substantiating the specific claims made in the ad. It is also worth noting that the ASA will generally expect studies on humans , although this often be part of a broader range of studies.
6. Vitabiotics Ltd, 29 October
A national press ad promoting a vitamin supplement included text stating, “"MENOPAUSE? This is not HRT Many thousands of women have discovered the comprehensive daily support of Menopace micronutrients. Specially formulated by experts, it is ideal whether or not you are on HRT and can be taken for as long as required". A packet of the product featured in the ad which contained text that read, “Formulated for during and after the menopause with vitamin B6 which contributes to the regulation of hormonal activity”. The ad also made the claims, “UK’s No.1 for the menopause” and “Voted No.1 for the menopause Boots 2012 Awards”.
The complainant believed the ad made an implied claim that the product would treat or help with the symptoms of the menopause and challenged whether:
1. the claim was an authorised health claim on the EU Register;
2. the claim “UK’s No.1 MENOPAUSE FORMULA” misleadingly implied a reference to the efficacy of the product, because he believed the claim was in fact based on sales data; and
3. the claim “Voted No1 for the menopause” was misleading for the same reason given in number 2.
The ASA upheld the first complaint but did not uphold the second two.
1. Vitabiotics said that it had not been their intention to imply that Menopace would treat menopausal symptoms and pointed out that, although they had run similar versions of the ad for over ten years, they had never received any other complaints in respect of it. They contested that the menopause was a stage of life and that when the ad stated the product was “formulated for during and after the menopause…”, they simply meant that it was intended to be used by people in that stage of life rather than implying it would alleviate any symptoms.
The ASA noted that under EC Regulation 1924/2006, which is reflected in the Code, only health claims which appear on the EU Register can be used in ads and further that health claims are defined as those that state, suggest or imply a relationship between a product and health. The ASA considered that the overall impression given by the ad was that Menopace would help regulate hormonal activity for menopausal women and also alleviate some or all of the symptoms that are often associated with it. In particular, the ASA noted that the ad included a number of comparative references to HRT and that therefore, in the context of the ad, consumers may believe Menopace was an alternative to HRT. The ASA understood that the health claim the ad made about Menopace was not on the EU Register and, as such, the ad was in breach of the Code.
2. Vitabiotics stated that the claim “UK’s No.1 MENOPAUSE FORMULA” was made in respect of data provided to them by a market research company and that the use of the word ‘formula’ simply referred to the particular set of ingredients that constituted their product. They provided the relevant market research data to the ASA.
The ASA acknowledged the evidence supplied to them by Vitabiotics and, unlike the complainant, considered that consumers would understand the claim in the ad to mean that Menopace was the best-selling menopause supplement in the UK. On reviewing the market research data, the ASA noted Menopace was indeed the best-selling menopause-related supplement over a 52 week period, both in terms of value and unit sales, and therefore found that the claim made in the ad was not misleading.
3. Vitabiotics pointed out to the ASA that the claim “voted No1 for the menopause” related to an award they had received from Boots and they provided a set of emails between themselves and Boots illustrating this. The ASA acknowledged these and also noted that the claim appeared in the ad next to a “Boots vitamin awards 2012 winner” logo, leading them to consider that consumers were likely to comprehend that the claim related to a Boots’ customer poll. In light of this, and because Vitabiotics had provided sufficient evidence to illustrate they had actually won the award, the ASA did not find the ad to be misleading or in breach of the Code in respect of this claim.
In this instance, the ASA was prepared to accept that consumers would understand that the claim “UK’s No.1 MENOPAUSE FORMULA” referred to sales figures, even though this had not been made expressly clear in the ad. However, as a matter of good practice and in order to avoid complaints being made against them, advertisers should always specify the basis for any claims.
A mailed circular for Ten Motives electronic cigarettes featured a picture of an ice cream on the front, in which the conventional chocolate flake had been replaced with an electronic cigarette. The back of the circular showed various fruits, chocolate and coffee beans alongside images of coloured refills. Text on both sides of the circular stated “FREE FLAVOURED REFILLS”, “Choose a flavour for free” and “Which flavour do you favour?”.
Two complainants challenged whether the ad was irresponsible on the ground that it was likely to appeal to children.
The ASA upheld the complaint. Ten Motives stated that the ad was intended to inform consumers that tobacco was not the only flavour available for e-cigarettes. They said they had created the ad so that it would only appeal to adults and that the mailing of the circular had only been distributed to a focused demographic, who they believed had a high propensity to be smokers.
However, the ASA disagreed with Ten Motives and considered that the overall presentation of the ad, particularly the colourful images it featured, was likely to be appealing to children. They pointed out that the most prominent image in the ad was of an ice cream and that therefore children might assume that the colourful depictions of fruit on the reverse of the mailing related to different flavours of ice cream. The ASA also noted that, although the circular had only been sent to a selected demographic, it could easily have been seen by children, for example when it was posted through a letterbox. In light of this, the ASA concluded that the ad was irresponsible as it was likely to appeal to children and was untargeted.
Along with number 8 below, this adjudication is yet another example of how advertising in the electronic cigarette market remains a controversial area for the ASA. In these instances both ads were accused of being irresponsible for appealing to children, advertisers are therefore reminded to take care when targeting their ads.
8. Cygnet UK Trading Ltd t/a blue Cigs, 15 October 2014
A TV ad promoting electronic cigarettes showed a group of young adults walking through an urban environment before setting up for a party in what appeared to be a disused warehouse. The ad then cut to a group of people dancing to music while on-screen text and a voiceover stated, “Freedom for the taking… blu…E-cigarettes and E-liquids”. Further on-screen text stated “Contains nicotine. 18+ only. Blu eCigs & electronic cigarettes are not a smoking cessation product and have not been evaluated by the MHRA”.
Nine complainants, including one pharmacologist, believed the ad promoted a nicotine based product to young people and challenged whether it was therefore irresponsible.
The ASA did not uphold the complaint. The ASA noted that it was acceptable to advertise e-cigarettes provided that ads were generally responsible and compliant with the Code. Cygnet said that they believed this was the case in respect of their ad and that they had been careful to ensure the ad reached a primarily adult audience. They pointed out that the ad was only shown past 9pm and only broadcast on channels where the majority of viewers were over 18 years of age.
The ASA acknowledged the arguments put forward by Cygnet and further considered that the party scene featured in the ad was unlikely to appeal directly to people less than 18 years of age. In particular, the ASA considered that the generic nature of the party and dancing styles featured in the ad meant it was unlikely it would create any direct association with, or thus specifically appeal to, people under the age of 18. They also noted that none of the actors who featured in the ad were teenagers (Cygnet confirmed that they were in fact all over 28 years old).
In light of these considerations the ASA concluded that, although the ad was likely to appeal to young adults, it would not appeal particularly to those under the age of 18 and, as such, the ad was not in breach of the Code.
9. Moonpig.com Ltd, 22 October 2014
Two TV ads featured people receiving bouquets of flowers along with personalised greetings cards. The first ad included a voice-over that stated “Moonpig flowers, perfect for any occasion with free next-day delivery and a free personalised Moonpig card. Because it’s great to know who your flowers are from, but it’s even better knowing they’re for you. And now with beautiful British flowers.” The second ad included a voice over that stated “Beautiful British flowers from Moonpig […]”. Both ads also featured a Union Jack graphic with text underneath stating “British Flowers.”
The complainant, who understood that not all the flowers shown in the ads were grown in the UK, challenged whether the claim “British flowers” was misleading and could be substantiated.
The ASA upheld the complaint. Moonpig contested that the ads were marketing generic flowers spread across a number of their ranges and pointed out that it was only the voice over and the graphic at the end which made any reference to ‘British Flowers’. Along with Clearcast, they believed that the ads made it clear that Moonpig sold both British and non-British flowers. The ASA however considered that the composition of the ad meant that consumers would understand that all or a large proportion of the flowers shown would be grown in the UK. They noted that in actuality none of the flowers featured were grown in the UK and as such concluded that the ad was misleading.
This is a highly unsurprising adjudication by the ASA who clearly felt that the ad attempted to use the implied British heritage of the flowers as a selling point to consumers.
Claims on the hotel booking website www.ihg.com stated, “Best Price Guarantee … We're so sure the best prices for our hotels are found on our websites that we were the first to offer the most powerful price guarantee ever by a global travel company. Every hotel reservation booked through an IHG web site [sic] is guaranteed to have the lowest room price (room rate) or total room cost (including all taxes and fees) publicly available on the internet or IHG will provide the first night's room price free and match the lower average nightly room price found for that stay for the rest of the nights of that stay (subject to the Terms and Conditions of the Guarantee)”.
Text on the "Best Price Guarantee FAQs" page stated, "If you find a lower room price (room rate) with a lower total room cost (including all taxes and fees) on a publicly available competing Web site [sic] for the same hotel, type of accommodations and rate restrictions on the same dates, we'll not only match that lower room price, we'll give you your first night's room price free, subject to the Best Price Guarantee Terms and Conditions … Rooms on the competing Web site [sic] must be publicly available, viewable and bookable on the Internet at the time of verification.".
Text on the "IGH Best Price Guarantee Terms and Conditions" page stated "Matching prices - Currency Requirements. The currency of the hotel controls the comparison with the room price and the total room cost on the non-IHG website, and the room price and the total room cost on the non-IHG website must be available, viewable, quoted, booked, and paid for in the currency of the hotel".
The complainant, after being told their claim for the best price guarantee did not qualify because the competitor’s website was registered in the USA, challenged whether the ad was misleading.
The ASA upheld the complaint. Intercontinental stated that their terms and conditions specified that in order to qualify for the price guarantee offer the competitor rate must be “available, viewable, quoted, booked and paid for in the currency of the hotel”. They asserted that this was not the case in respect of the complainant and that this was the basis upon which they had rejected the application.
The ASA acknowledged the existence of the terms and conditions as described by Continental. However, they also considered that the provisions contained within them constituted material information and as such should have been made readily available to consumers. They noted that the terms and conditions were located on another page to the price guarantee offer and thus considered that they were not sufficiently prominent. Accordingly therefore, the ASA concluded that the ad was misleading.
This adjudication by the ASA reminds advertisers, especially those using website promotions or linked web-pages, that any material or significant information must feature prominently and be readily available to consumers who are viewing the general ad or promotion. It is unlikely to be satisfactory to have the information contained in a page separate to that of the main offer, even if a link is provided.
11. BMW (UK) Ltd, 15 October 2014
A video ad on www.bmw.co.uk featured footage of a BMW M4 car being driven on both a racetrack and a road. The footage of the two scenes was interspersed and the ad repeatedly cut between the two. The driver of the car on the racetrack was wearing overalls and a helmet and driving the car aggressively and at great speed. The ad finished by showing the two cars drawing to a stop in matching on-screen positions and with very similar backgrounds.
The complainant challenged whether the ad was socially irresponsible as it featured and encouraged unsafe driving.
The ASA upheld the complaint. BMW pointed out that it was permissible to demonstrate a vehicle’s full capabilities in an ad providing the vehicle was shown to be on a closed racetrack and not using public roads. They also said that in the scenes where the car was being driven on public roads there was no aggressive driving and that there was clear differentiation between the two sets of circumstances the car was being shown in.
The ASA noted the arguments put forward by BMW and acknowledged that the Code states that the full capabilities of a car can be demonstrated as long as it is not shown to be using a public highway. However, the ASA did not consider that it was always fully clear to the viewer which setting the car was being driven in. In particular, they felt that repeatedly cutting between the two scenes blurred the distinction between track and road and also drew a link between the two driving styles. The ASA further considered that the majority of the ad focused on the acceleration, speed and sports performance of the car. In light of these considerations the ASA concluded that the ad encouraged unsafe and irresponsible driving and as such was in breach of the Code.
12. Toyota (GB) Plc, 29 October 2014
A TV ad, a video on demand (VOD) ad and a video that featured on the Toyota UK YouTube channel promoted the Toyota Yaris Hybrid, all three were identical. They showed a number of drivers and passengers singing and dancing along to music while driving around urban roads. In particular the ads included shots of them gesturing with their arms and towards the end featured a female driver who appeared to close her eyes as she sang along to the music. The ads featured on-screen text stating, “THE DIFFERENCE BETWEEN DRIVING AND DRIVING HAPPY”.
Across the three media formats, a total of seventy-five viewers challenged whether the ads were irresponsible as they encouraged dangerous driving.
The ASA upheld the complaints. Toyota stated that, although the ads were filmed in a real city, they had altered any road signs or other identifiable objects so that it would not appear to viewers that the story was taking place in a real-life setting. They also pointed out that there were no shots of the car being driven at speed or in a daring manner. Clearcast also responded on Toyota’s behalf arguing that, contrary to the ASA’s description of the ads, the female driver did not have her eyes closed but only narrowed.
The ASA acknowledged the arguments put forward by Toyota but nonetheless felt that, despite the alterations that had been made to the cityscape setting, viewers would still understand the ads to be taking place in a real life scenario. While they did accept that listening to or engaging with music when driving was not an inherently dangerous activity, they were concerned that a number of the drivers shown were not paying due attention to the road and appeared distracted. In particular, the ASA pointed out that a number of drivers were shown without both hands on the wheel, or were alternatively looking away from the road to interact with their passengers. They also disagreed with Clearcast’s assertion that the female driver had only narrowed her eyes, considering that most viewers would believe she had closed them.
In consideration of the above, the ASA considered that the ads showed a number of drivers not paying due attention while driving and, as such, condoned dangerous driving and were therefore in breach of the Code.
This adjudication, as well as number eleven above it, fall into a long line of rulings by the ASA on car adverts that feature irresponsible or dangerous driving. Advertisers must take great care to ensure their ads do not show any activity which may be regarded as unsafe. In this particular instance, it is perhaps unsurprising that 75 complaints were made to the ASA given that one of the drivers featured in the ad was seen at the wheel with her eyes closed.
13. MoneyExpert Ltd t/a Mighty Deals, 1 October 2014
A promotion for a Bluetooth shower speaker on the website www.mightydeals.co.ukfeatured text stating: “£10.99 Discount: 86% Worth:£69.99…Original price checked on 10 July 2014 at 10am”.
The complainant did not believe that the product was generally sold for £69.99 and therefore challenged whether the claim “£10.99 Discount: 86% Worth: £69.99” was misleading.
The ASA upheld the complaint. Mighty Deals stated that the ‘worth’ price featured in the ad was the merchant’s previous selling price. They had checked it had been sold at this level for 30 days prior to the deal being offered by them and provided three sales receipts demonstrating transactions at this price level. Mighty Deals also provided links to four other websites where the product was being sold for at least £69.99 or alternatively was on sale having been reduced from an original price of a similar level.
The ASA considered that by describing the higher price as a ‘worth’ price, the ad was unclear whether this was a reference to the merchant’s own selling price or to the RRP. They acknowledged the receipts provided by MightyDeals and accepted they did show that the merchant had previously sold the product at £69.99. However, the ASA considered that the merchant had not sold them at this price in significant numbers. They also understood that, despite the examples provided by MightyDeals, the general market price for the product was significantly lower than £69.99. This led the ASA to conclude that the merchant’s previous selling price was not a genuine retail price as it was not comparable to price-levels offered by competitors and nor had significant numbers of stock been sold by them at that price.
As the basis of the comparison was unclear and MightyDeals had failed to demonstrate that the savings claim was based on a realistic retail price or RRP, the ASA found that the ad was misleading.
Pricing is always a complex area and one where the ASA and Trading Standards will take a strict view. The ASA regularly rules against ads which feature RRPs that cannot be clearly and easily verified. RRPs are likely to mislead if they differ significantly from the price at which a product or service is generally sold. The BIS Pricing Guide also makes this point clear and that traders should not use RRPs for goods that only they supply.
14. Poundworld Retail Ltd, 8 October 2014
Text on the website www.poundworld.net stated “poundworld everything £1”.
One complainant, who had seen “manager special” items in a Poundworld store priced at £3 and £8.99, challenged whether the claim “everything £1” was misleading.
The ASA upheld the complaint. Poundworld Retail stated that they viewed the “managers specials” as a separate and additional service to their normal £1 products. They pointed out that they were infrequent and never accounted for more than two products on offer at a store at any given time. They also pointed out that they had discussed the matter with their own Trading Standards authority and had identified and adopted appropriate strategies to ensure that the items were distinguishable to consumers from their normal £1 items.
The ASA acknowledged the measures taken by Poundworld to distinguish between the two categories of items, but nonetheless considered that the claim on the website suggested that every item in the store would be priced at £1 and this would be a significant draw to consumers. As this was not the case the ASA concluded the ad was misleading.
This is an unsurprising adjudication by the ASA. A website for a shop that purports to offer all items for sale at a price of £1 was clearly going to be held to be misleading by the ASA when they went on to sell products at £3 and £8.99.
15. Virgin Media Ltd, 15 October 2014
A TV ad and a press ad promoted Virgin’ Media’s ‘Big Kahuna’ bundle;
a. The TV ad featured the actor David Tennant who stated “Some services can feel a bit slow and well, not that reliable. But, the Virgin Media network is superfast with superfast fibre optic broadband ... And it also has the amazing TiVo putting you in control of the boxsets and matches you love." He was then shown in a campervan with a Sky Sports playing on a wall-mounted television. On-screen text stated, “Content dependent on device & TV package. Sky Sports subscription required from £17/month ... ”. The actor then continued, “Then, of course, there’s the wonderful landline…”, after which a telephone suddenly appeared next to him before he finally stated, “The new Big Kahuna bundle has landed. Get it all for just £30 a month for the first six months.” On –screen text stated, “Virgin phone line £15.99/month”.
b. The press ad featured text that stated, “Hi Sky customers, we could save you over £370 a year. So what are you waiting for? Switch today". It also featured a table comparing Sky’s ‘Family Bundle’ and Virgin Media’s ‘Big Kahuna Bundle’ with text below that read “Virgin media’s total annual saving £376.92”. Finally, a banner at the foot of the ad stated, “Switch and save today Visit us in store virginmedia.com Call XXXX XXX XXXX ... Text 'save' to XXXXX and we'll be in touch with more info". The small print stated "... INSTALLATION FEE £49.95 APPLIES ... ”.
A competitor, BskyB, challenged whether:
1. ad (a) misleadingly suggested Sky Sports was included in the price advertised; and
2. the savings claims in ad (b) were misleading because they believed that a non-optional installation fee applied to new Virgin Media customers.
A member of the public also challenged whether:
3. ad (a) misleadingly implied that line rental was included in the advertised price.
The ASA upheld all three complaints.
1. Virgin Media pointed out that while the Sky Sports content was shown during the ad, they had also included on screen text making clear that it was an optional extra. They also stated that the ad included no details of any particular Sky Sports package and therefore consumers would not expect it to be part of the package being advertised. However, the ASA disagreed with Virgin Media and considered that the overall impression of the ad would lead consumers to understand that Sky Sports was included in the advertised bundle. In particular, they did not feel that the prominence of the on-screen text stating Sky Sports was an optional extra was commensurate to the presentation of the football match itself. They also highlighted the statement made by the actor towards the end of the ad that consumers could, “Get it all for just £30 a month for the first six months”, considering that this would compound the notion that all of the services featured in the ad formed part of the bundle. Accordingly therefore, the ASA found that the ad was misleading in this respect.
2. Virgin Media argued that there were similar installation costs for people joining Sky services and that in any event there was an ongoing offer on the Virgin Media website for free installation which was available to any new customer. They also attested that the comparison in the ad was only between the monthly costs of the services, and therefore that installation fees would fall outside of this.
The ASA understood that the ad directly targeted existing Sky customers and they considered that such customers would want to take account of all the costs they would incur when deciding whether to switch services. As such, the ASA felt that the installation fee was a material piece of information even though the ad focused on rolling monthly costs and, as such, it should have been made clear in the ad. The ASA did accept that it had been mentioned in small print at the bottom of the ad but considered that this was not satisfactorily prominent. In respect of the website offer for free installation the ASA considered that, as the existence of the offer was not highlighted in the press ad itself, many consumers would not have known to take advantage of it. In light of the above the ASA concluded that the ad was likely to mislead.
3. Both Clearcast and Virgin Media alluded to the on-screen text that appeared stating “Virgin phone line £15.99/month” and said they believed this made it clear to consumers that line rental was an extra cost. The ASA again focused on the voice-over that stated “Get it all for just £30 a month for the first six months” and considered that this implied everything mentioned in the ad was included in the price. They noted that the actor had made reference to the “wonderful landline” and that a telephone had appeared beside him and, as such, considered that the combination of these factors would lead consumers to believe line rental was included in the bundle. As this was not the case the ASA found the ad to be in breach of the Code.
This adjudication is yet another in the long series of complaints made between broadband and digital television service providers. This particular ruling reminds advertisers that they must be careful to ensure their ads do not misleadingly imply that certain services or products are a constitute part of an advertised bundle when they are in fact not.