1. Henkel Ltd t/a Dylon & Buzzfeed Ltd UK, 13 January 2016
An ad for Dylon headed “14 Laundry fails We’ve All Experienced” was seen on the entertainment and news website Buzzfeed and as such was styled as a Buzzfeed article. Below the heading, text stated “Dylon Brand Publisher” next to the logo for Dylon’s Colour Catcher product. At the bottom of the ad, text stated “It’s at times like these we are thankful that Dylon Colour Catcher is there to save us from ourselves. You lose, little red sock!”.
Complaint / Decision
The complainant challenged whether the ad was obviously identifiable as a marketing communication. The ASA upheld the complaint.
Buzzfeed explained that as there had not been a ruling as to whether the label they used was sufficient to alert consumers that the ad was a marketing communication, they relied on their US practices on how to label ads. In particular, Buzzfeed noted that the Dylon logo and following text, “Dylon Brand Publisher” were placed at the top of the page. They further noted that the words “Dylon Colour Catcher” were in a different colour and contained a link to the Colour Catcher website.
Buzzfeed explained that promoted ads on their homepage were flagged with a highlighted label in yellow, which stated “PROMOTED BY” followed by the company name and logo. Promoted ads which appeared in their search listings were also flagged with a highlighted label in yellow but stated “ADVERTISER” followed by the company name and logo. They noted that promoted ads differed to editorial content which was labelled with the individual reporter’s name, picture and title.
The ASA considered that as consumers could arrive at the ad via a variety of means, the webpage itself needed to make clear that it featured advertorial content. The ASA concluded that the references to Buzfeeds’s association with Dylon at the top and bottom of the webpage were insufficient to make clear that the main content of the webpage was an advertorial and that editorial content was retained by the advertiser. The web page was also very long so visitors to the page would not see the text at the bottom of the page until after they had engaged with the content. The ASA also took the view that the term “brand publisher” was not prominent enough and the terminology did not adequately communicate the commercial nature of the content.
Native advertising such as this has been the matter of much debate with the growth of different types of digital marketing. The ASA appears still to be developing its approach as to what is expected for advertisers to show that paid for content is a paid for marketing communication. However it is still somewhat unclear as to what advertisers and publishers are required to do. This is also an area where what is and is not acceptable is likely to be subject to continuous development as consumers become more aware of different advertising approaches. For an alternative view of what is considered obviously identifiable marketing communication readers may want to review the ruling on Nike (UK) Ltd.
FOOD AND DRINK
2. All Market Europe Ltd t/a Vita Coco, 13 January 2016
A video ad, titled “The Great British Summer” on VitaCoco’s Facebook page featured images associated with summer. A voice-over stated “When [the British summer] is over, the nation falls into a state of depression.” This was followed by a scene which featured a sad looking man who was then shown to fall from the top of a building to the ground. The voice-over then explained that VitaCoco intended to keep the summer going by offering money coupons off activities and products associated with summer.
Complaint / Decision
The complainant challenged whether the ad was offensive as it appeared to trivialise suicide and depression. The ASA did not uphold the complaint.
VitaCoco explained that the ad was meant to make fun of the way the British nation reacts to the end summer. VitaCoco stated that the ad’s purpose was to prolong the optimistic and light-hearted nature of the summer months by offering discounts off activities and products typically associated with the season and was not intended to trivialise the topics of suicide and depression.
The ASA understood that some viewers may find the ad distasteful as mental health and suicide were sensitive topics. However, the ASA considered the context of the ad and noted that it was focused on the end of summer and was unlikely to cause serious or widespread offence. In particular, the ASA explained that the reference to depression and suicide was very brief and was portrayed in a cartoon-like manner.
This adjudication shows that the ASA will consider the context in which sensitive topics or content which has the potential to offend is presented in an advert. In this instance the exaggerated and extreme response of the man to the end of summer, together with the cartoon-like fashion in which it was portrayed meant that it was unlikely the ad would cause widespread offence. Care needs to be taken as humour can be difficult to judge. Timing (mental health has become a particular issue of debate) and setting are often key.
3. ChromotionLtd t/a The Shop Channel UK, 13 January 2016
A teleshopping ad for the Velform Miniwaist contained the following statements made by the presenter, “Have you ever wondered how celebrities get those tiny little waists they flaunt on the red carpet … introducing Velform Miniwaist the secret to getting that sexy tiny waist, so small that you’ll be everyone’s envy … What do you prefer this? Or this?” At this point, images of women with and without the product were shown. The presenter continued, “The secret behind Velform Miniwaist is it’s extreme compression hands … and if you want an even smaller waist, no problem, just tighten a little more and done … Think about this, what is the difference between a woman’s shape and a man’s shape? Women are supposed to look like this, and men like this. But very often, especially as we age, we lost that figure, it’s not just you … fortunately now there’s a way to get that womanly figure that identifies us … creates that fabulous, perfect and extreme hourglass figure that all women want … Miniwaist is the perfect solution to all of these problems”. A women using the product stated, “I’m doing everything I can to get that teeny tiny waist, like the girls, in the pictures and in the magazines.”
Complaint / Decision
The complainant challenged whether the ad was irresponsible and harmful as it appeared to encourage unhealthy body perceptions. The ASA upheld the complaint.
The Shop Channel UK explained that the product provided a temporary slimming effect to consumers wearing it. They noted that the ad did not specify how tight the product should be worn.
Clearcast explained that the ad did not encourage consumers to use the product instead of exercise or dieting. They noted that the product provided an option to consumers to reduce the appearance of their waist. They further explained that the ad did not suggest that consumers would look less desirable if they did not use the product.
However, the ASA considered that numerous statements in the ad, such as “hourglass figure” and “everyone’s envy”, implied that a very small waist was desirable. Moreover, they noted that the ad implied women should aspire to having such figure though the use of statements such as “womanly figure that identified us” and “women are supposed to look like this”. Although the ASA acknowledged that it was reasonable to demonstrate the product being used, they were concerned with shots were women appeared to compress their waists to appear extremely small.
This adjudication illustrates that the ASA take a dim view of any ad that is seen to promote unhealthy body perceptions. Specifically it was the combination of the level of compression to the women’s waists depicted, together with the aforementioned claims which most concerned the ASA, suggesting a more proportional use of language and imagery may have been appropriate. It should also be noted that this is also an area that is likely to attract complaints.
4. Prestige Gifting Ltd t/a Prestige Flowers, 13 January 2016
Prestige Flowers’ website contained the claim “Over 1 million Bouquets Delivered”. Below this was a series of scrolling messages about recent purchases such as “George O from Paphos has just purchased Rose Galore!” which were repeated on a loop.
The complainant challenged whether the claim was misleading and could be substantiated and whether the claims in the scrolling messages misleadingly implied that the products had been recently purchased. The ASA upheld both complaints. Prestige
Flowers explained that as they had made the “over 1 million” claim since 2014, it was now known to be a commercial fact. They then noted that the scrolling messages refreshed on the 18th minute of every hour and was therefore updated every hour with the most recent orders.
The ASA noted that without evidence, the “over 1 million” claim could not be substantiated and was therefore misleading. In considering the scrolling messages, the ASA understood that at the time of the complaint the same ten names had appeared on one loop for several weeks. They noted that these claims were likely to exaggerate the rate at which purchases occurred. The ASA noted that Prestige Flowers now attempt to update the names every hour but considered that the live feed would still imply that the products were being purchased every few seconds.
It is clearly important advertisers are able to substantiate with clear evidence any claims made, even if such claims have been made for some time. Any type of exaggeration within an advert will be seen as misleading by the ASA.
5. Apollo Entertainment Ltd t/a Golden Tiger Casino, 6 January 2016
An email for Golden Tiger Casino stated “Congratulations [recipient’s account ID name] – You’re a weekly winner. £1500 FREE! Welcome Bonus. We are offering you: £1500 Free to play for one hour! Use our money to play our games. If you win, you get to keep it. Deposit is required to claim your winnings”. The email also stated “Limited time offer! Mobile users get 30 free spins. No deposit required. Plus £1500 in welcome bonuses. Click here to claim now”. The footnote to the ad stated “Terms and conditions may apply”.
Complaint / Decision
The complainant challenged whether the claim “if you win, you get to keep it” was misleading as the ad failed to make clear that a wagering requirement applied before consumers could withdraw their winnings. The ASA upheld the complaint.
Apollo Entertainment explained that when recipients clicked through from the email, they would be taken to the landing page of the casino website. The wager requirements were made clear on the landing page where it was stated “…Any bonuses given requires 60 times play through before cashin”. Apollo explained that this along with other terms were in the terms and conditions for which a link was provided on the landing page. They also noted that consumers had to confirm they had read the terms and conditions when registering for an account.
The ASA considered that since the email included an offer that encouraged recipients to register an account with the Golden Tiger Casino, consumers should have been made aware of any significant applicable conditions affecting the offer. The email should have stated that terms and conditions applied (rather than that they “may apply”) and should have included all conditions which might have affected a consumer’s decision to take up the offer. The ASA felt that the wagering requirement was material information and so should have been made clear to consumers before they took the decision and further step to click through. The omission of this material was so significant that it was likely to mislead consumers into understanding the claim “if you win [using our money], you get to keep it” to mean that it was free of any further conditions, other than placing a deposit.
Free bet ads will always be a particular focus of attention for the ASA (see Betway Ltd, 17 June 2015) and the ASA is likely to take a strict line. Terms and conditions related such offers should be no less than one click away where space is limited but must always be clearly signposted.
6. This Is Global Ltd t/a Radio X, 27 January 2016
A TV ad and s for the radio station, Radio X: A TV ad and a Video On Demand (VOD) ad for the radio station Radio X featured the DJ Chris Moyles walking down a street. He was shown bumping into a number of people, including a man holding a coffee, a character in a costume and a paramedic pushing someone on a stretcher, and he knocked a cake out of a woman’s hand. He then walked through a wall of the Radio X studio building.
Complaint / Decision
- Eighty-nine viewers in total challenged whether ads were offensive and irresponsible because they believed it encouraged and condoned anti-social and violent behaviour.
- Some viewers challenged whether the TV ad was inappropriately scheduled for broadcast at times when children may be watching.
The ASA investigated two issues, both of which were Not Upheld.
- This Is Global Ltd said the ad was a parody of The Verve’s iconic music video for the song “Bittersweet Symphony”, which they believed would have been recognisable to the majority of viewers. They added that the ad was a humorous play on Chris Moyles’ reputation and his determination to ‘get into the music’ and return to radio and that surreal scenarios, included a charity worker dressed in a giant rabbit costume and a lady inexplicably holding a wedding cake in the street, were executed carefully to ensure a comical, and slightly surreal, tone. Global stated that the slapstick humour shown in the ad was common in children’s programmes and family films. The fantasy context, including Chris Moyles walking through a brick wall and emerging unharmed, would have made this particularly clear to viewers.
This approach was supported also by Clearcast, who felt that the tone of the ad was comical and over the top, and neither menacing nor anti-social. While Clearcast acknowledged the possibility the ad might offend some viewers they felt confident that the exaggerated and comical nature of behaviour was unlikely to cause serious or widespread offence and that the ad was unlikely to cause harm to under-18s who might see it.
- Global said following advice from Clearcast, the ad was subject to an ex-kids restriction and was therefore, scheduled away from children’s programmes, which would have helped to prevent young children from viewing it. They said none of the scenarios were presented in a way that might have made them seem possible, or particularly attractive, to copy and the affected parties reacted appropriately, making clear that Chris Moyles’ actions were unacceptable.
Clearcast specifically worked with an agency to ensure the behaviour shown would be over the top, comical and clearly staged and noted the intention of the ad was to parody The Verve’s music video which they believed viewers over 16 would understand. They acknowledged that younger viewers (those under 16) might be influenced by the behaviour shown and because of that, they applied an ‘ex-kids’ scheduling restriction. That restriction prevented the ad from being shown around or during programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 16.
The VOD ad was also booked and targeted to an ABC1 male demographic audience.
The ASA stated acknowledged Global’s intention to parody what they believed to be a well-recognised and iconic music video. However they considered that some viewers were still unlikely to recognise the parody element of the ad.
The ASA considered the context in which the behaviour was shown and noted the eclectic mixture of people that Chris Moyles walked past in such a short amount of time together with the end shot in which he was shown walking through a brick wall. This situation was likely to be seen as surreal and far removed from the mix of people many were likely to encounter when walking down a street. While Chris Moyles’ behaviour was likely to be seen as unpleasant, the ASA considered that the context in which it was shown meant viewers were unlikely to interpret it as realistic and as an acceptable way to behave. In the particular circumstances of the ad, the ASA therefore concluded it was unlikely to cause serious or widespread offence or be seen to encourage or condone anti-social behaviour or bullying.
Whilst the ASA acknowledged that younger children were more likely to emulate the behaviour shown they noted that the scheduling restriction meant there was a reduced likelihood of those children seeing the ad. The ASA considered older children were likely to recognise that the ad presented undesirable behaviour, but they were also likely to understand the fantastical nature of the ad. As such the ASA considered that the scheduling restriction applied was appropriate for the content and therefore concluded the ad had not been scheduled inappropriately.
This adjudication is particularly interesting given the number of complaints it prompted and the level of coverage the complaints received nationwide. Despite the large number of complaints made in relation to the ad the ASA took into account the surreal and parody elements of the ad, which in the context of the ad the ASA believed meant viewers were unlikely to interpret Chris Moyles’ actions as realistic of acceptable behaviour. It is also pertinent that Global and ITV took specific steps to ensure the ad was placed to reach Radio X’s target adult audience and was restricted from being shown around or during children’s programmes.
7. Third Energy UK Gas Ltd t/a Third Energy, 13 January 2016
A regional press ad for Third Energy seen on 4 November 2015 stated “GENERATING ELECTRICITY LOCALLY FOR 20 YEARS”. It included a logo for Knapton Generating Station and the years “1995” and “2015 were included, as well as text stating “20 SAFE AND PRODUCTIVE YEARS”. It featured a large image of floodlights in operation.
Complaint / Decision
The complainant, who was involved in local anti-fracking groups, challenged whether the claim “GENERATING ELECTRICITY LOCALLY FOR 20 YEARS” was misleading and could be substantiated, because they did not believe the company had been operating for that period of time. The ASA did not uphold the complaint.
Third Energy UK Gas Ltd said that the ad was intended as a celebration of 20 years of safe electricity production at Knapton Generating Station (KGS), and that the ad was clearly branded with the KGS 20th anniversary logo. They said that KGS had been generating electricity locally for 20 years using gas produced by a consortium led by Third Energy UK Gas Ltd from the Vale of Pickering fields. Although the company had used several different names since its incorporation, KGS had been operated by Third Energy UK Gas Ltd throughout its 20 years of operation. Third Energy UK Gas Ltd said that a number of 20th anniversary events had taken place across North Yorkshire since June 2015 and they provided copies of the exhibition panels used which gave some general historical information about KGS.
The ASA considered that because the ad appeared in a local newspaper, readers were likely to have an awareness of KGS and some would be aware of the 20th anniversary. Although more than one company operated under the ‘Third Energy’ brand and it was not obvious to readers which specific company the claim related to, it was reasonable to expect that at least one of the Third Energy companies to have been instrumental in the generation of electricity at KGS since it began operating in 1995. The ASA noted that Third Energy UK Gas Ltd operated KGS and had done since it opened and that although the company had changed names more than once during that period, it was the same company registered with Companies House. Consequently the claim “GENERATING ELECTRICITY LOCALLY FOR 20 YEARS” had been substantiated and was not misleading.
This adjudication provides a useful contrast to the Prestige Flowers complaint above and the AA complaint below in terms of the level and consistency of evidence required to substantiate claims made in advertisements.
8. Vetted Ltd t/a Checkatrade, 6 January 2016
- A page giving information about Checkatrade included a section headed “About our members” which stated, “Checkatrade runs strict background checks on tradespeople before they can become members. Once they join, members agree to have feedback from their customers put online for all to see…”
- A page headed “Resolving issues” included text which stated, “Before we publish negative feedback we like to give our members a chance to put the matter right. We have found that this usually results in a much better outcome for you” and “If court action is being taken by the customer or company we will keep the complaint on hold until the courts [sic] verdict. We will also ask for proof of stamped court application and will publish the complaint if the court rules in favour of the customer”.
Complaint / Decision
The complainant, who said they had submitted negative feedback about a Checkatrade trader and that a court had ruled in their favour but that the trader’s profile had been removed before that feedback was published, challenged whether the following claims were misleading:
- “Once they join, members agree to have feedback from their customers put online for all to see” in ad (a); and
- “If court action is being taken by the customer or company we will keep the complaint on hold until the courts [sic] verdict. We will also ask for proof of stamped court application and will publish the complaint if the court rules in favour of the customer” in ad.
The ASA acknowledged that due to the particular circumstances in this case the complainant’s feedback had not been published because the trader’s account had been suspended at their own request and was subsequently permanently removed by Checkatrade. The complainant’s comments had been added to the trader’s page, but because the account was suspended the page was not shown on their website. If the account had been reactivated then the complainant’s comments would have been viewable. The ASA noted that Checkatrade had since amended their policy so that pages for suspended traders (for example if a trader advised Checkatrade of ill health or a bereavement) would remain online and feedback would still be published. Nevertheless, because the claims would be understood as relating to traders currently listed on the site (rather than those no longer listed) and as offering reassurance when selecting those individual traders, and because feedback on those traders would be published on the site as claimed, the ASA therefore concluded that the ads were not misleading.
This case turns on the facts due to the particular circumstances involved. Significantly Checkatrade amended their procedure to deal with similar occurrences in the future which may have been taken into consideration by the ASA when making their ruling.
9. WDjoin SC t/a regist.co.uk, 13 January 2016
A circular, received in November 2015, was headed "Register of Companies and Businesses". Text underneath stated, "On DD/MM/YYYY ... an entry into the Companies House was made". Further text stated, "Go to www.regist.co.uk and pay for the publication of your company. Lack of payment will result in lack of entry in the Register of Companies and Businesses".
Smaller text at the bottom of the page stated, "Register of Companies and Businesses is a collection of information on business entities, maintained in the computer system in the form of a central database and updated on an ongoing basis. All our customers' trade names and companies are available at www.regist.co.uk. This letter is an offer. Entry in the register allows you to use the Register of Companies and Businesses ... Publication of an entry in Register of Companies and Businesses requires payment of an optional registration fee ... Go to www.regist.co.uk and pay for the publication of your company. Lack of payment will result in lack of entry in the Register of Companies and Businesses".
Smaller text written down the right-hand side stated, " ...The customer agrees to receive two invoices and charges in form [sic] of one-time fee for the WDjoin software license [sic]. For more information please visit our website www.regist.co.uk".
Complaint / Decision
The complainant challenged whether the overall presentation of the mailing was misleading because it suggested that it was official correspondence with a connection to Companies House rather than a marketing communication. The ASA upheld the complaint.
WDjoin SC t/a regist.co.uk said the service was called the Register of Companies and Businesses because their most important service was advertising for companies. They said the name was not similar to any government institution, but that they ran a list of companies broken down by county. They also stated that both claims were true and that neither were misleading. Wdjoin SC also argued that the ad gave the name and EU VAT numbers of the company and that text stated, “this letter is an offer” making it clear the fee was not mandatory.
The CAP code states that marketing communications must be obviously identifiable as such. With this in mind the ASA noted that the presentation of the circular created the impression that the ad was an official document describing a payment which needed to be paid by the recipient, in connection with their business's registration with Companies House. Although smaller text contained information about the nature of the company, that the registration fee was optional and that the letter was an “offer”, these statements were not sufficient to counteract the impression created by the overall presentation of the mailing.
This is the latest in a line of similar rulings as the ASA tries to clamp down on attempts to portray services as part of services being offered by official government related bodies. This adjudication shows that marketers must be careful not to mislead consumers by giving the impression that their marketing communications are official documents and/or linked to another organisation. Even though technically the information contained in the circular was true, the way it was presented and the contrast in the prominence of certain information meant that it was misleading to consumers.
10. Automobile Association Developments Ltd, 20 January 2016
A TV ad and claims on the website www.theaa.com:
- The TV ad showed various scenarios in which the AA was required by motorists, which included a new car key being cut and incorrect fuel being exchanged. The voice-over stated, “With more patrols, more specialist skills and more expertise than anyone else, we are the Automobile Association. We are the AA.”
- The website included the claim “With more expertise than anyone else, we’ve seen it all before”.
Complaint / Decision
RAC Motoring Services and a member of the public challenged whether the claims that the AA had more specialist skills and expertise than their competitors were misleading and could be substantiated. The ASA upheld the complaint.
The AA, supported by Clearcast, gave a very detailed argument covering the reasons they believed that they had more specialist skills and expertise than their competitors. The AA stated that they provided specialist patrols, covering key assist, fuel assist, battery assist, windscreens, recovery, prestige and motorbike, and which included a number of 4x4 vehicles. In contrast their main competitors, the RAC and Green Flag, did not have dedicated key or prestige patrols, or those that were specifically trained by the manufacturers as AA patrols were. In addition, the AA’s noted that their patrols had dedicated diagnostic equipment from those manufacturers, and they provided a service directly to manufacturers as well as to their own members who owned particular branded vehicles. The AA pointed out that while the RAC offered an in-house fuel service, it did not cover those scenarios in which diesel was put into a petrol car and that both the RAC and Green Flag used third-party agents for fuel issues. The AA also said its patrol technician workforce was highly skilled and benefitted from the training in diagnostic tools that were not available to other providers. They said each individual they recruited was required to have minimum qualifications and before going out on the road had to undergo a five-week induction period, which they understood was longer than any other provider.
The ASA noted the AA’s argument that they had a wider range of specialist breakdown support and provided more services in-house than their competitors and considered that whether services were provided in-house, or by third parties, was likely to be of relevance to consumers. However, given that the basis of the comparison was not specified in either ad, the ASA considered “… more specialist skills and more expertise than anyone else” and “With more expertise than anyone else” were likely to be understood to be broad claims relating to the AA’s knowledge and experience, particularly in relation to scenarios that required specialist input. While ad (b) did not make reference to any specific circumstances, ad (a) showed a series of scenarios, which it stated were “BASED ON TRUE STORIES” and included two different vehicles being towed away, a key being replaced and fuel being changed. The ASA therefore considered it would be understood to mean those were examples of the range of cases in which the AA had more expertise and specialist skills than its competitors. The ASA therefore believed that the AA should be in a position to demonstrate that was the case for those, and for wider, scenarios.
The ASA acknowledged that the policy documents provided indicated that competitors did not always directly provide some of the services the AA had emphasised as those in which they believed they had greater skills and expertise. However the ASA considered that the articles which the AA provided were not sufficient to demonstrate that they had more specialist skills and expertise than their competitors, first, because the ASA did not have information about the methodology involved in those surveys and secondly, they did not span the entire range of competitor companies. Furthermore the summary of the training provided to AA technicians, and anecdotal statements from two members of staff that had also received training from other competitors, were insufficient in detail, particularly in relation to training given by competitors, to demonstrate objectively that the AA’s training programme provided for more specialist skills and expertise across the market.
This adjudication demonstrates the level of substantiation required in order to support claims made in marketing communications. The claims made by the AA in both their TVC and on their website in relation to their specialist skills and expertise were very broad and as such extremely difficult to substantiate. By stating they had more skills and expertise than “anyone else” there was also a superiority aspect to the AA’s claims. Unless it is obviously puffery, the ASA will generally regard superiority claims as objective. The ASA has previously upheld “best” claims where it considered that in the context they would be understood as objective. Consequently advertisers should always be extremely careful when making superiority or comparison claims in advertisements.
HEALTH AND BEAUTY
11. Enzymatica AB, 27 January 2016
A poster ad and claims on a website for ColdZyme, seen on 20 December 2014:
- The poster ad stated, “Help shorten your cold with ColdZyme…ColdZyme Mouth Spray is the revolutionary new, easy to use oral spray that forms a protective barrier in your mouth to help shield you against a common cold…ColdZyme can help shorten your cold if used at the first signs.”
- The website www.boots.com featured the ad which stated, “ColdZyme Mouth Spray is an easy to use oral spray for common colds that forms a protective active enzyme barrier on the mucous membrane in your throat to prevent the cold virus from infecting cells in the throat. ColdZyme also helps shorten the duration and severity of symptoms, if initiated at an early stage of the cold infection”.
Complaint / Decision
Two complainants challenged whether:
- the claim “… can help shorten your cold” in ad (a); and
- the implication that ColdZyme could prevent infection with the common cold in ads (a) and (b), were misleading and could be substantiated.
The ASA upheld both complaints.
1. & 2. Enzymatica AB said that ColdZyme met the relevant requirements of the European Medical Device regulations. Enzymatica’s documents included the product’s Clinical Evaluation Report (CER) which comprised a summary of the clinical studies performed on ColdZyme. They also provided additional scientific opinion on the product’s safety and efficacy and a summary document from the relevant regulatory authority in Sweden which had concluded that the claims, based on Enzymatica’s CER, could be substantiated. Consequently they believed that this dossier of evidence supported the claims that ColdZyme could prevent or shorten the common cold.
The ASA considered the claims that ColdZyme “can help shorten your cold” and “helps shorten the duration … of symptoms” in the overall context of the ad and noted that those claims were immediately followed with the wording “if used at the first signs” and “if initiated at an early stage of the cold infection”. The ASA therefore considered that consumers were likely to understand the claimed effects related to use of the product after their cold symptoms had started to develop.
The ASA considered a number of trials based on human subjects submitted by Enzymatica AB and took expert advice. One study was a randomised, double-blind, placebo-controlled trial, conducted among healthy volunteers who had been pre-treated with either ColdZyme or a placebo substance one day prior to inoculation with the cold virus RV16. Results were determined on subsequent viral load measurement. The ASA noted that the study indicated that there was a reduction in the days with cold symptoms when ColdZyme was used. However the subjects were pre-treated with ColdZyme prior to inoculation with a cold virus, rather than assessing the effects of the product once symptoms of the cold had begun. As the ad encouraged consumers to use ColdZyme “at the first signs” of a cold the ASA concluded that they had not seen adequate evidence that ColdZyme could shorten the common cold when symptoms were first experienced and concluded the ads were misleading.
The ASA noted that ad (a) stated “to help shield you against a common cold” and ad (b) included the wording “ColdZyme … forms a protective active enzyme barrier … to prevent the cold virus from infecting cells in the throat”. The ASA considered that consumers would understand that those aspects of the ads implied that ColdZyme had a dual use, namely that it could be used either when a consumer experienced cold symptoms developing, or as a preventative measure throughout the ‘cold season’. The
ASA noted that the while the study discussed above assessed the viral load after one inoculation with a cold virus, that outcome was unlikely to reflect whether consumers developed a cold in normal circumstances while using ColdZyme. The study also did not assess the severity of cold symptoms or the number of separate cold infections over a typical ‘cold season’.
The ASA considered that additional studies submitted by Enzymatica AB contained certain methodological flaws. For example, some of the studies contained inadequate controls or lacked a placebo group, statistical analyses were missing and there were some mathematical inaccuracies. Other studies used relied on subjects’ recollection of cold infections from a previous year, which the ASA considered introduced potential recall bias, and some of the data collected was based on reported absence from work due to sickness in circumstances where it was not always clear whether participants were absent due to the common cold or for other reasons. For these reasons the ASA considered that those flaws undermined those study outcomes and concluded the claims were misleading and had not been substantiated.
This ad campaign contained some very robust claims, so it is not surprising that the ASA has taken quite a strict approach. The complaint demonstrates the high threshold required to substantiate this sort of robust health claim and is very similar to a recent case in November 2015 involving Boots (Boots UK Ltd, 11 November 2015). CAP rule 12.1 provides that objective claims must be back by evidence and, if relevant, trials conducted on people. However as evidenced in this complaint the trials themselves must support the actual claims being made. Consequently advertisers should carefully consider whether trials conducted effectively support any associated claims, and also any implied claims that consumers might understand.
12. Crimestoppers Trust, 27 January 2016
A Poster for Crimestoppers, seen on the station platform and on a phone box in Rugby, on 29 October and 16 November 2015 respectively, stated "BREAK YOUR SILENCE Don't let drugs and violence rip the heart out of your community" and included an image of bloodied hands holding a heart.
Complaint / Decision
Two complainants challenged whether the ad was likely to cause distress, particularly to children, and was therefore inappropriate for outdoor display in an untargeted medium. The ASA upheld the complaint.
Crimstoppers stated that as people were generally reluctant to give information about drug related violence they felt a hard-hitting image that would make people think and respond promptly. They stated that a similar campaign had previously been run in Ipswich using the same artwork, but with different wording. The impact in Ipswich was significant and they did not receive any complaints.
Crimestoppers acknowledged that the artwork could be perceived as controversial and were sorry that it had caused distress. They strove to walk the line between effective and potentially difficult imagery in the artwork they used, and said the last thing they wanted to do was alienate members of the public.
JC Decaux, who owned the sites where the ads appeared, said the ads were not subject to any prohibitions and did not contravene local guidelines. They had not received any complaints directly about the ads.
The ASA noted that the image in the ad featured a human heart grasped in bloodied hands, with drips of blood running down the fingers accompanied with the claim “Don’t let drugs and violence rip the heart out of your community”. This enhanced the impression that the heart had been ripped out of an individual’s chest. The ASA considered that some individuals, particularly children, who would not necessarily understand the rationale behind the image, might find the bloody image upsetting because of its graphic nature. While the ASA acknowledged the positive intention behind the campaign they considered that the image was not directly relevant to crime or the overriding message of the campaign. For those reasons, the ASA considered that the ad was likely to cause unjustifiable distress when displayed in an untargeted medium and concluded that it breached the Code.
The rationale behind this adjudication demonstrates that the ASA may allow hard-hitting imagery which is properly targeted and directly relevant to the campaign it is trying to promote. The ASA often more lenient with regard to challenging imagery for charity and similar campaigns. In this instance however the ASA considered that the image was not directly relevant to crime or the overriding message of the campaign and as such was likely to cause unjustifiable distress.