This summary provides a selection of the most interesting ASA adjudications in November, highlighting the key issues considered in those adjudications.  An important adjudication this month concerns Trinity Mirror and Kraft Foods relating to a competition to win Olympic tickets.  Although Kraft Foods denied all involvement with the competition and stated that they were simply providing the prizes, the ASA held them to be jointly responsible with Trinity Mirror for a failure to administer the competition fairly.  Further, there was a significant and perhaps surprising adjudication against PepsiCo also in connection with administering a competition fairly.

This month CAP has reported on new rules on online behavioural advertising, where a user’s web history is used to target the user with adverts that will be of interest to them.  The new rules will require that web users are provided with notice in or around the advertisement and that the user is able to opt out in order to prevent their web viewing behaviour from being collected and used.  The new rules will come into force on 4 February 2013. 

CAP has also issued guidance on the “10% rule” in respect of describing the price of a product. When using “up to” or “from”, the ASA expects advertisers to be able to demonstrate a reasonable level of availability of stock.  What is reasonable will depend on the circumstances, but as a general rule 10% of the advertised products should be available at the headline “up to” or “from” price.

Finally, any advertisers preparing for the impending January sales may wish to view the new CAP guidance “Five New Year Resolutions for January Sales”.

ADJUDICATIONS

FOOD & DRINK

  1. PepsiCo International Ltd, 21 November 2012 (The ASA investigates whether a competition was administered fairly where a consumer was told they had won several times but was subsequently informed that only one win would be honoured)

HEALTH & BEAUTY

  1. Horse Requisites Newmarket Ltd, 21 November 2012 (The ASA investigates whether claims that the effects of a horse supplement were “scientifically proven” were misleading and could be substantiated)
  2. thebigwebsite Ltd, 21 November 2012 (This adjudication concerns claims as to being the “UK’s favourite online beauty store”)
  3. Beverly Hills Edition, 28 November 2012 (An advert offering a free sample is challenged as the customer was subsequently charged on a monthly basis and had to pay postage and packaging charges)

FINANCIAL & BUSINESS

  1. Enjoy Car Hire, 7 November 2012 (The ASA investigates a car hire website in relation to compulsory fuel levies)
  2. Halfords Autocentres Ltd, 7 November 2012 (Price comparisons made on a website are challenged for not comparing like-for-like services)
  3. Inspop.com Ltd, 21 November 2012 (A promotion on car insurance is investigated by the ASA)
  4. Pollyesther UK Ltd, 28 November 2012 (A car hire website is challenged on its claims of being “impartial” and “independent”)

LEISURE

  1. Playboy TV UK Ltd, 7 November 2012 (Provocative images of women featured on an untargeted, mobile medium are investigated for being overtly sexual)
  2. Trinity Mirror Plc, 7 November 2012 (An advert for an online casino is challenged for being irresponsible as it featured a number of cartoon characters)
  3. Trinity Mirror plc and Kraft Foods Europe Services GmbH – UK Branch, 28 November 2012 (The ASA investigates whether a competition to win London 2012 Olympic tickets had been administered fairly)
  4. Virgin Media Ltd, 28 November 2012 (Claims that Virgin were doubling broadband speeds are investigated for being misleading)

HOLIDAYS & TRAVEL

  1. Kayak Software Corporation, 28 November 2012 (An advert for an online holiday website is challenged for being offensive, distressing and insulting to the medical profession)
  2. Skytrax Research, 7 November 2012 (The ASA investigates several claims made on an airline comparison website for being misleading)

OTHER

  1. Taylor Wimpey UK Ltd, 14 November 2012 (A website advertising new-build flats is investigated as to whether the image used was misleading)
  2. Toyota (GB) Plc, 14 November 2012 (A YouTube advert for a car set in an animated virtual world is challenged for being irresponsible and condoning dangerous driving)
  3. Wiggle Ltd, 14 November 2012 (An email promoting an online sportswear store selling Team GB kit is challenged as the kit was not available to purchase on the website)

MAIN ARTICLE

FOOD & DRINK

1.    PepsiCo International Ltd, 21 November 2012

A promotion on Pepsi packaging offered the chance to win £500 every hour.  Text included “FOR A CHANCE TO WIN, ENTER THE LAST 4 DIGITS OF YOUR BARCODE AT WWW.PEPSI.CO.UK OR TEXT 62948”.

Complaint/Decision

Two complainants challenged whether the competition had been administered fairly as (1) the entry codes were not unique and had been posted online by other consumers, allowing them to be used by people who had not purchased the product; and (2) one of the complainants had won several times but was subsequently informed that only one win would be honoured.

The first complaint was not upheld.  PepsiCo stated that the cost of having unique codes on each label was very high, and the ASA considered that it was reasonable for advertisers not to use unique codes provided promotions were administered fairly.  As neither the promotion packaging nor the website, which both made clear consumers could enter the competition without purchasing the product, stated that the entry codes were unique, the promotion had been administered fairly.

The second complaint was upheld.  PepsiCo said that one entrant and his family had entered the competition over 1,000 times using a number of slightly different email addresses, with some draws being entered more than 500 times in one hour.  The ASA acknowledged that, although generating multiple email addresses to make a large number of entries was not within the spirit of the promotion, the terms and conditions stated that there was a limit of one entry per email address per hourly prize draw.  The terms stated that winners would be selected “…from all valid entries for each draw” and the second complainant and his family had received confirmation of several wins but the prizes were subsequently withdrawn.  The ASA considered that this had caused unnecessary disappointment, particularly given that a different email address had been used for each entry as specified by the terms and conditions.  The ASA concluded that significant conditions of the promotion had not been made sufficiently clear and that, due to the unnecessary disappointment caused, the promotion had not been administered fairly.

This adjudication highlights the importance of carefully and clearly drafting terms and conditions when conducting prize promotions, particularly in relation to significant conditions.  It is particularly important to anticipate issues which may arise and to try to address potential loopholes that certain consumers may seek to exploit.

HEALTH & BEAUTY

2.    Horse Requisites Newmarket Ltd, 21 November 2012

A press advert for a horse supplement stated “ProKalm SCIENTIFICALLY PROVEN To reduce anxiety and nervousness, Rapid acting / Aids concentration, Does not effect [sic] gait for performance, Dose can be varied for required effect, The natural choice for trainers contains no banned substances”.

Complaint/Decision

The complainant challenged whether the claims “Scientifically proven to reduce anxiety and nervousness” and “aids concentration” were misleading and could be substantiated.

The complaint was upheld.  In support of the claims, Horse Requisites provided a dissertation which included a double blind placebo controlled study carried out on 16 horses to examine the effect of ProKalm.  The ASA took expert advice in relation to the study.  The expert concluded that although the study could support the claims that the product could aid concentration, it was not sufficiently robust to support claims as to the effect on equine behaviour.  The expert considered that there were issues with the selection of horses, the small sample size and that for some of the results the placebo seemed more effective than ProKalm.  The dissertation itself stated that the results of the study were inconclusive with regard to the efficacy of the product on equine behaviour.

The evidence was not sufficiently robust to support the claims and the advert was therefore misleading.

Although this adjudication relates to a specialised product, it has a wider application.  Advertisers should be reminded of the importance of being in possession of sufficiently robust evidence before an advert is released to substantiate any claims made.

3.    thebigwebsite Ltd t/a feelunique.com, 21 November 2012

A YouTube advert for the online beauty retailer feelunique.com featured several beauty products and brands.  Text stated “feelunique.com brings you outstanding value beauty, grooming and health products straight to your door for free!  Choose from a diverse selection of over 17,500 products from the UK’s favourite online beauty store!”

Complaint/Decision

Beautybay.com Ltd challenged whether the claim “the UK’s favourite online beauty store” could be substantiated.

The complaint was upheld.  Although feelunique.com submitted data showing that the website had received more visits for most months between March and August 2012 than other online beauty retailers, the ASA considered that popularity claims needed to be supported by data relating to unique visitors, rather than the number of visits.  In conjunction with the text mentioning the “17,500 products”, the ASA considered that readers would understand the claim to mean that feelunique.com sold more products than any other online UK beauty store.  Although the data submitted by feelunique.com demonstrated that they had the highest sales figures for 2010 and 2011 when compared with other beauty retailers trading exclusively online, the ASA determined that readers would understand the comparison to be with all UK beauty stores available online, including those who also traded through other channels.  As feelunique.com had not demonstrated that this was the case, the advert was held to be misleading.

Advertisers should take care when claiming to be the “most popular” or the “best” and ensure that any such absolute and/or superlative claim can be substantiated.  The ASA is always particularly concerned about any “number one” claims and to ensure that they can be properly substantiated.

4.    Beverly Hills Edition, 28 November 2012

An email advert from yourdailyoffers.co.uk offered a free sample of Tropicleans All-Natural Colon Cleanser.  Text stated “GET YOUR FREE SAMPLE NOW”.  Smaller text underneath stated “Just pay postage & packaging.”

Complaint/Decision

The complainant challenged whether the advert was misleading as it did not make clear that the customer would subsequently be charged for the product on a monthly basis.

The complaint was upheld.  The Code states that marketing communications must make clear the extent of the commitment the customer must make in order to take advantage of a “free” offer.  Items must not be described as “free” if the customer is required to pay packaging charges.  As the advert did not make clear that customers would be subsequently charged for the product on a monthly basis, and because customers would have to pay for packaging, the ASA considered that the advert was in breach of the Code.

This adjudication highlights the considerations that advertisers must take into account when promoting “free” offers.  Care must always be taken in this area, particularly as this is one of the 31 banned practices under the Consumer Protection from Unfair Trading Regulations 2008.

FINANCIAL & BUSINESS

5.    Enjoy Car Hire, 7 November 2012

The car hire website enjoycarhire.com stated “Ford Ka or similar £108.24 (€135.30)”.  Further details included information on the fuel policy, which read, “Customer will be charged a full tank of fuel on arrival the car must then be returned empty, refunds will not be issued for any unused fuel…”  The terms and conditions stated, “Fuel Policies.  Enjoy Car Hire work with a number of suppliers and the fuel policy differs per supplier and can be found in the ‘rate details’ section of the quote screen.  In all cases fuel is not included in the final price”.

Complaint/Decision

The complainant challenged whether the quoted price was misleading and could be substantiated, as it did not include the compulsory fuel charge levied by the local supplier which had to be paid on collection of the car.

The complaint was upheld.  Although the terms and conditions stated that fuel was excluded from the price, the ASA considered that the fuel charge was a significant condition that would affect the price paid by the consumer and could affect their decision of whether to proceed with the booking.  The information should therefore have been displayed more prominently and the price quote should have been “immediately qualified” on the same page.

Enjoy Car Hire stated that it would be very difficult for them to include information on how much customers would have to pay upon collection of the car as it varied between local suppliers, countries and the cars in question.  The ASA stated that where a charge cannot be calculated in advance, advertisers must make that clear and explain how the fee will be calculated.  As the fuel charge was set by the local supplier at their discretion, the ASA concluded that some suppliers could charge more for a tank of fuel than would be charged at a local petrol station.  This had the effect of charging customers a fuel surcharge, and the fuel policy should have explained how this fee would be calculated.

As it was not immediately clear from the price claim that it excluded fuel, and as there was no explanation of how the fuel surcharge was calculated, the advert was held to be misleading.  This adjudication demonstrates the importance of bringing significant conditions to the attention of the consumer.  Although the information was included in the terms and conditions, the ASA considered that it should have been given a more prominent position, and including it only in the terms and conditions was deemed to be insufficient.

6.    Halfords Autocentres Ltd, 7 November 2012

The website halfordsautocentres.com stated “Car Service – save up to 50% on main dealer pricing!!  We are offering great discounts on our car servicing – you can save up to 50% on main dealer service prices, even though our services are the same, and in many cases even more thorough than that of a dealership.”

Complaint/Decision

The Society of Motor Manufacturers and Traders Ltd challenged whether the claim “Save up to 50% on main dealer pricing” was misleading and could be substantiated, as it did not make clear the basis of the comparison or take into account the class of vehicle or regional pricing variations.  In addition, they were concerned whether like-for-like services were being compared.

The complaint was upheld.  Since receiving the complaint, Halfords had amended the advert to include the text “Based on independent research of 190 dealerships carried out in May 2012”.  In its response, Halfords provided information as to how the research was carried out and provided a table of the results collected.  The ASA understood that the prices listed for a Halfords full service included a £30 discount which was only available for a limited time and if a service was booked online.  The ASA considered that Halfords had not made comparisons on a like-for-like basis, as they were between their own time-limited online prices and non-promotional prices quoted by the car dealerships.  The claim was therefore misleading.

Pricing and price comparisons are frequently the subject of ASA adjudications.  Advertisers should be reminded of the CAP Code Rules 3.39 and 3.40, which state that price comparisons must state the basis of those comparisons and must not mislead by falsely claiming a price advantage.  The CAP Help Note on “Retailers’ price comparisons (non-broadcast)” also provides useful guidance.

7.    Inspop.com Ltd, 21 November 2012

The website confused.com ran a promotion accessed by a link in an email sent to the complainant.  Text stated “Exclusive Santander offer Buy car insurance from Santander and get your car insurance for £20.12”.  Additional text read, “Offer pays out a maximum of £1,500 off your premium” and “Terms and conditions apply*”.

Complaint/Decision

The complainant challenged whether the promotion was misleading, as the offer was for entry into a prize draw to win a year’s car insurance for £20.12 rather than an offer to buy car insurance for that price.

The complaint was not upheld.  The ASA acknowledged that the claim on the website landing page did not make the nature of the offer explicitly clear.  However, material information provided at each stage of the process, including in the body of the email and the terms of conditions, explained that the promotion was a prize draw.  All consumers would have seen the email, which made it clear that terms and conditions applied and referred to a “daily draw”.  The ASA considered that consumers were unlikely to be misled and that the promotion had not breached the Code.

8.    Pollyesther UK Ltd, 28 November 2012

The website comparethecarhire.co.uk was headed “Compare the Car Hire Independent reviews of car hire companies across Yorkshire”.  Other claims on the site included “Compare the Car Hire is a totally independent service set up to offer impartial advice and comparisons on Car Hire Companies in Leeds.”

Complaint/Decision

The complainant challenged whether the claims to be “independent” and “impartial” were misleading, as he understood that the site was operated by the companies ranked as the top three in the list.

The complaint was upheld.  The ASA noted that the same three companies were consistently placed in the top three positions.  Companies House records showed that these companies were all registered at the same address, and there were a number of banner adverts on the site which were just for these three companies and from which Pollyesther indicated that it did not receive any revenue.  Further endorsements of these three companies were given in the text below the rankings.  The ASA also considered that insufficient information was provided on the site as to the criteria applicable to determine whether or not a company should be awarded a star in each of the categories.

The ASA concluded that the site was operating primarily as a marketing communication for these three companies.  As Pollyesther had failed to provide a credible explanation of how the site could be “independent” or “impartial” whilst also promoting these three companies, the claims had not been substantiated and were held to be misleading.

LEISURE

9.    Playboy TV UK Ltd, 7 November 2012

An advert for Playboy TV in paid-for space on the side, back and cab of a lorry featured various images of women in provocative outfits and poses.  Text read “RE-TUNE YOUR FREEVIEW BOX TO GET US!”

Complaint/Decision

A complainant challenged whether the images were overtly sexual and therefore unsuitable for display on a lorry.

The complaint was upheld.  Playboy submitted that the images were “cheeky” rather than sexual; the ASA disagreed.  The ASA considered that the facial expressions, poses and outfits of the women were sexually provocative.  The adverts were in an untargeted, mobile medium and therefore had the potential to be seen by a large number of people.  As the pictures were so overtly sexual and could be seen by anyone, including children, they were likely to cause serious and widespread offence and were irresponsible.  This adjudication highlights how cautious advertisers must be when advertising through an untargeted medium, particularly when featuring sexualised images of women.

10.    Trinity Mirror Plc, 7 November 2012

A newspaper advert for an online casino stated “FREE £5 TO PLAY WITH TODAY” and featured a number of cartoon characters including Optimus Prime from Transformers, a popular children’s television show and film.

Complaint/Decision

A complainant challenged whether the advert was irresponsible because it was likely to appeal to children.

The complaint was upheld.  Although the ASA considered that the advert had not been directly targeted at children or young people as it was featured in the Money section of the newspaper, marketing communications for gambling products should not be likely to be of particular appeal to children or young people, including by referencing or being associated with youth culture.  The use of the Transformers character was likely to have particular appeal to children and young people, regardless of the context in which it appeared, and the advert therefore breached the Code.

This adjudication highlights the strict rules surrounding the advertising of gambling practices and is similar to an adjudication last month on Profitable Play Ltd (31 October 2012).  Advertisers promoting gambling should be advised that marketing materials including any references to or association with children or youth culture are likely to fall foul of the Code.

11.    Trinity Mirror plc and Kraft Foods Europe Services GmbH – UK Branch, 28 November 2012

A competition on the Daily Mirror website offered tickets for London 2012 Olympic events.  Travel costs and accommodation were included in the prize.  The advert featured the following text:  “Win London 2012 men’s 100 metre final tickets… Be a winner with Cadbury Thanks to Cadbury, Official Treat Provider of the London 2012 Olympic and Paralympics Games, we’ve got our hands on the tickets that EVERYONE wants! … All you have to do for a chance to win is answer this question:  How many Cadbury Dairy Milks (49g bars) does a shotput weigh?...”

Complaint/Decision

The complainant, who had been informed that she was a prize winner, objected that:  (1) the advert was misleading, as it failed to make clear the short response period available to claim the prize; (2) the prize had been withheld without justifiable reason; and (3) the promotion was administered unfairly and the advertisers had caused unnecessary disappointment.

The complaints were upheld.  Although Kraft Foods denied all involvement with the competition, stating that “…the entire promotion and associated advertisement was created and the promotion managed by Trinity Mirror”, the ASA considered that both entities were accountable for the competition.  Kraft had employed a PR company to act on their behalf, purchased the right to advertise the promotion, allowed the “Cadbury” name and logo to be used and even made references to the competition on their Twitter and Facebook pages.

The competition had closed at midnight on Wednesday 18 July and the winners selected the following day.  Trinity Mirror had called the complainant four times from 19-20 July but was unable to reach her to confirm she was able to take up the prize.  The complainant confirmed that she had received four missed calls, but they were from withheld numbers and no voicemails were left so she was unable to respond.

Trinity Mirror had not initially imposed a deadline for winners to confirm their availability to accept the prize as they were not aware that such a deadline existed.  However, on 20 July, the PR company organising the competition contacted Trinity Mirror to say that they needed the names of the winners by 17.00 that day.  Trinity Mirror duly sent an email to the complainant.  Having received no response, they selected another winner.  It appears that there had been some confusion between the Trinity Mirror and the PR company as to whether “the winners” simply meant those that had been selected, or those that had confirmed their availability to take up the prize.  The ASA considered that this lack of clarity accounted for the complainant’s disappointing experience.

The ASA determined that, as no information on time for acceptance had been included in the original advert, two days was not sufficient time for a winner to confirm their availability and claim their prize.  The complainant could not return any of the calls as no contact number was provided, and she was given less than five hours to respond to the email sent to her.  The ASA concluded that the promotion had not been administered fairly and the prize had been withheld from the complainant without justification.

Advertisers should be reminded of the provisions in the CAP Code governing promotions, especially that promoters must allow adequate time for each phase of a promotion.  In addition, this adjudication should serve as a warning to companies who believe they are simply providing the prizes for a competition that they could also be held responsible for the failure to administer a promotion fairly.

12.     Virgin Media Ltd, 28 November 2012

A television advert featured Usain Bolt, in an office, impersonating Sir Richard Branson.  As Sir Richard Branson walked passed the window and looked into the office, Usain Bolt said “As you all know, I am famous for being fast … And now, I’m doubling those speeds.  You can stream HD movies and you could say bye-bye to buffering.”  On-screen text stated “Cabled areas only.  Upgrade has either happened or is scheduled to happen by mid-2013.  Doubling broadband speeds excludes 100Mb and customers not in a cable area.  100Mb customers speeds increase to 120Mb and price cut”.  The voiceover said “Superfast fibreoptic broadband from Virgin Media … Richard’s been busy doing the double; doubling broadband speeds, that is.  Go online to see if he’s doubled yours.”

Complaint/Decision

A complainant challenged whether the claim that Virgin were doubling broadband speeds was misleading because they understood that not all customers would receive a doubling of speeds.

The complaint was not upheld.  The ASA considered that the on-screen text and the statement “Go online to see if he’s doubled yours” explained that not all Virgin customers would be eligible to receive the service.  The advert did not expressly state that all users would have their speeds doubled and the claims were therefore not considered misleading.

This adjudication can be contrasted with a similar complaint made last month relating to the text “you could say bye-bye to buffering”, which was upheld (Virgin Media Ltd, 3 October 2012).  The text encouraging customers to check online to see whether their broadband speed had been doubled seems to have been of particular importance in this decision.

HOLIDAYS & TRAVEL

13.    Kayak Software Corporation, 28 November 2012

A television advert for an online holiday website was set in an operating theatre where a surgeon was carrying out brain surgery.  The patient had his laptop on his lap and as the surgeon touched the patient’s brain, the patient raised his hands and began typing on the laptop.  A nurse said, “This is completely unethical.”  “My hours are unethical”, said the surgeon, “I don't have time to sit around searching tonnes of travel sites looking for flights and hotels.”  The nurse replied, “Just use Kayak. It compares hundreds of travel sites in seconds.”  “Well”, said the surgeon, “I guess you’re the brains of this operation”.  He then moved the patient’s arms as if he were punching the nurse, then lifted the patient’s arm and high-fived him.  The voice-over stated, “Go to Kayak.co.uk and you could save up to 20% on your next flight.  Kayak.  Search one and done.”

Complaint/Decision

The ASA received a total of 441 complaints.  The complainants challenged whether (1) the theme of the advert was offensive; (2) the advert was distressing and deeply upsetting; (3) it was appropriate for broadcast during the day when children might be watching; and (4) the advert was offensive because it was insulting to surgeons and the medical profession in general.

Complaints (1), (3) and (4) were not upheld.  Complaint (2) was upheld.  In relation to complaint (1), the ASA considered that most viewers would understand that it was a farcical situation which was not intended to reflect or depict real life, and the advert was unlikely to cause widespread offence.  However, the ASA acknowledged that it would be likely to provoke a strong reaction in viewers who had previously experienced or were about to undergo that type of surgery.  In this regard, the ASA considered that the advert’s treatment of a serious and delicate medical procedure could be viewed as flippant.  A number of complainants had found the advert distressing and deeply offensive in light of their personal experiences.  The ASA concluded that the advert was likely to cause distress without justifiable reason and serious offence to some viewers.  The advert breached the Code and complaint (2) was upheld.

In relation to complaint (3), the ASA considered that younger children would be unlikely to understand the scenario and, while older children might, they would be unlikely to interpret the advert as a realistic portrayal of what happens during a surgical operation.  The advert had not been inappropriately scheduled.  Finally, the ASA determined that the advert would be unlikely to damage the reputation of doctors or the medical profession, highlighting that the nurse had told the surgeon that his behaviour was unethical, which he acknowledged.

Despite the high number of complaints, only one aspect of this advert was considered offensive.  It is often the case that adverts which attract a high number of complaints are not necessarily considered by the ASA as likely to cause serious or widespread offence.  However, the distinction here between the different complaints was fairly slim.  An important factor in the ASA’s decision to uphold complaint (2) was the effect the advert would have on viewers who had either personally experienced brain surgery, or had family members that had.  A number of complainants were people with personal experience, and the ASA considered that the advert was likely to cause these people distress and serious offence, despite concluding in relation to issue (1), that the advert was unlikely to cause widespread offence.  Therefore, the existence of a particularly vulnerable group was considered key.  This can be contrasted with the adjudication in relation to Paddy Power (Paddy Power plc, July 2010) featuring blindfolded footballers, attracting 1,089 complaints, but where the advertisers were able to show support from blind footballers.

14.    Skytrax Research, 7 November 2012

The airline review website airlinequality.com contained an airline rating system and customer reviews for airlines and airports.

Complaint/Decision

KwikChex Ltd challenged whether the following claims were misleading and could be substantiated: 

(1) “Checked and trusted airline reviews” and “REAL travellers with REAL opinions!”; (2) “more than 5 million independent, traveller reviews and customer trip ratings”; (3) “Official Quality Star Ranking(TM)”; (4) “The Star Ranking programme operates in a real-time analysis format, to ensure that Airline Star Ranking levels are constantly maintained and adjusted in accordance with changes made by an airline, be this to product or service standards – on average, each airline’s Star Rankings is reviewed in depth every 2-3 months, and adjusted in accordance with the annual ratings”; and (5) “TRADEMARK(TM) PROTECTION – The titles below are protected by Skytrax, and can only be used by a Registered 5-Star Airline with consent of Skytrax”

The complaint was upheld in respect of all five issues.

  1. The ASA considered that Skytrax had to demonstrate that they had taken all reasonable steps to ensure that the reviews were checked, trusted and made by “real” people with “real” opinions in order to justify the authenticity claims in the advert.

Skytrax explained that each review was subject to a four-stage authentication process, and if staff suspected that a review was not genuine, they would email the user for further information or delete the review completely.  The ASA determined that this “rigorous authentication process”, if followed correctly, would be robust enough to identify the majority of non-genuine reviews.  Consumers would not interpret the claims as constituting a guarantee of the authenticity of every single review.

However, as Skytrax deleted user information shortly after receiving a submission, they could not provide evidence demonstrating that the reviews on the site at the time of the complaint were genuine.  As there was no ability to track a review back to its source after 24 hours following its submission, Skytrax could not demonstrate that the verification process had been properly applied to the reviews on the site.  The ASA concluded that there was insufficient evidence to substantiate the claims.

  1. In 2007 Skytrax decided to limit the number of reviews available for each airline and airport to a maximum of 10 pages, due to restrictions on their web space.  The other reviews remained on the Skytrax database but were not accessible to the public.  400,000 reviews were available for the public to review on the website.  The ASA considered that most consumers would understand the claim to mean that they could access 5 million reviews on the website.  As this was not the case, the claim was misleading and unsubstantiated.
  2. Skytrax submitted that in 1999 the airline ranking programme was given the name “Official Airline Star Ranking” after consultation with the airline industry.  The word “official” was selected and agreed by all parties to demonstrate that the rankings were authorised and issued authoritatively.  However, as Skytrax did not submit any evidence to demonstrate that the term had been agreed at an industry-wide level, the ASA concluded that the term was misleading.
  3. Skytrax acknowledged that the website displayed Star Ranking data from some airlines which were no longer in business, stating that this was because colleges and students of the aviation business often asked that this historical information be maintained where possible.  The relevant pages carried a statement to alert consumers to the fact that the airline was no longer trading.  The ASA considered that this was an appropriate way of handling this situation.

However, with regard to the “real-time” format, Skytrax failed to submit evidence to prove the frequency with which analysis was carried out, and the claim was therefore misleading.

  1. Skytrax declined to provide any evidence demonstrating that the terms in question were trade marked.  The claim was therefore misleading.

This adjudication is reminiscent of an adjudication earlier this year concerning the website tripadvisor.co.uk (TripAdvisor LLC, 1 February 2012).  In that adjudication, claims referring to “reviews from real travellers” were held to be misleading, as they implied that all review content on the site was genuine, which could not be guaranteed to be the case.  Advertisers purporting to use “real” reviews should have in place both a robust system of verification and evidence that the system is operating effectively in order to prevent such claims from being considered to be misleading.

OTHER

15.    Taylor Wimpey UK Ltd, 14 November 2012

A page on the Taylor Wimpey website advertising new-build flats featured images of a flat for sale, including an image of a bathroom.  Text read “Image from actual show home”.

Complaint/Decision

A complainant challenged whether the image of the bathroom was misleading because she understood that Taylor Wimpey did not finish homes to that standard, even when an upgrade was available.

The complaint was upheld.  Taylor Wimpey stated that the picture was from the show home on that particular development, but that not all the tiling shown in the bathroom was included within the standard or upgraded bathroom packages.  The additional tiling would be available if a customer specifically requested it and it was a bespoke package item.  The ASA considered that although customers would understand the accessories such as towels would not be included, there were a number of these bespoke upgrades that customers would be likely to infer were included in the headline price.  The claim “Image from an actual show home” would be interpreted to mean that the layout might be different in other flats but that this was the bathroom available for the headline price, including the additional bespoke finishes.

Taylor Wimpey said that the headline price was prefixed with the word “From” to indicate that the price might be higher.  They suggested the addition of the text “Photograph shown is representative only.  Please check with our sales executive for details of the exact specification available at this development”.  However, the ASA considered that this text would be insufficient as the headline price would still not relate to the product featured.  Taylor Wimpey should have either used a picture that was representative of the room that was included in the headline price, or made clear what it would cost to achieve the bathroom pictured.  As they had not done so, the advert was misleading.

This adjudication demonstrates a classic example of misleading advertising – where there is a discrepancy between the picture used to promote a product and the actual product itself.  Advertisers should take care to ensure that images and prices that feature in marketing materials are a true reflection of the product being advertised.

16.    Toyota (GB) Plc, 14 November 2012

A YouTube advert for the Toyota GT86 was set in an animated virtual world.  A male character described how he was not real and had no feeling until he drove the GT86.  The advert showed the car being driven at speed, followed by a police helicopter and chased through narrow virtual streets.  The car then escaped the city, following signs to “the end of the world”, and burst through a glass barrier onto a real road.

Complaint/Decision

Two complainants challenged whether the advert was irresponsible and condoned dangerous driving.

The complaint was upheld.  Although Toyota stated that particular care had been taken over the pursuit scenes in the advert, which were to show the authorities attempting to prevent the character from having an authentic driving experience rather than to prevent him from driving dangerously, the ASA disagreed.  The ASA considered that many of the scenes showed the character driving recklessly at speed.

Toyota also submitted that the advert was set in an artificial, animated, fantasy environment and therefore did not show normal driving circumstances, and further that the driving scenes would be impossible to emulate.  However, the ASA determined that the roads, public spaces and the car were all recognisable and not significantly different from those in the real world.  The driving and the high speeds could therefore be emulated on real roads.  In addition, the ASA considered that the highly stylised nature of the advert glamorised the reckless way in which the car was driven.  The ASA concluded that the advert was irresponsible and condoned dangerous driving.

Adverts promoting cars are often the subject of ASA adjudications, usually facing challenges for being irresponsible and condoning dangerous driving.  Advertisers should take care to follow the relevant provisions of the Code, including in particular Rule 1.3 (social responsibility) and Rule 19 (motoring).

17.    Wiggle Ltd, 14 November 2012

An email for Wiggle Ltd online sportswear store had the subject “Up to 50% off adidas London 2012 Team GB apparel”.  Text in the email stated “Take your piece of the games while stocks last” and “adidas Team GB Kit Designed by Stella McCartney”.  Below the text was an image of Stella McCartney and four Team GB athletes wearing the Team GB kit.  The text “View the full range” linked to a web page with the product listings.

Complaint/Decision

A complainant challenged (1) the availability of the Team GB kit on the website; and (2) whether the advert misleadingly implied that it was possible to purchase replicas of the kit worn by the athletes pictured.

The complaints were upheld.  When the complainant received the email the Team GB replica kit range was shown on the website as discontinued and not available for purchase, although the accessories and items shown in the rest of the email were available.  The ASA considered that the subject of the email, along with the pictures used, implied that the Team GB replica kit was available on the website.  As this was not the case, the advert was misleading in respect of both complaints.  Although other items featured in the email were available, the presentation of the email would be interpreted to mean that these items were available in addition to the Team GB kit.

A major event such as the Olympics naturally brings with it a host of advertising issues as advertisers are keen to associate themselves with a topic of such huge public interest.  Wiggle stated that the image of the athletes, which was in common use at the time, was used to put the email in context, rather than to specifically promote the kit.  However, even if it was not their intention, the combination of the image and the text used in the email misleadingly applied that the kit was available to purchase on the site, which was not the case.