This summary provides a selection of October’s most interesting ASA adjudications and highlights the key issues considered in those adjudications. One theme running through a number of decisions in this month’s summary is the distinction between responsible and irresponsible marketing; the ASA has been asked to determine in several cases whether or not an advert implies that certain products and services aimed at adults can enhance an individual’s mood, fortune, or general wellbeing, with differing outcomes. This is a particularly sensitive question when the advert can be said to have particular appeal to those under the age of eighteen.
This month also features rulings concerning the misleading nature of adverts, including one for a range of furniture. The rulings demonstrate the importance of taking care with the formulation of claims and in ensuring substantiation matches those claims.
HEALTH AND BEAUTY
1. Colgate-Palmolive (UK) Ltd – 26 October 2016 – Complaints made in relation to the advertiser’s marketing material for a brand of shower gel were upheld on the basis that the substantiation provided did not match the claims being made.
2. Diet Chef Ltd – 26 October 2016 – An advert promoting a dieting program was found to be socially irresponsible and in breach of the Code for portraying a character who was deeply upset with her weight, and for implying that happiness and self-confidence can only be achieved through weight loss.
FOOD & DRINK
3. Global Brands Ltd – 26 October 2016 – A social media advert posted from the account of a social media star popular amongst young people was found to be irresponsible for portraying juvenile behaviour in the context of an advert for an alcoholic product.
4. Leon Restaurants Ltd – 26 October 2016 – The advertiser’s product name for one of its salads was found to be in breach of the Code on the basis that it was a general health claim which was required authorisation on the EU Register before being marketed to consumers, and it did not come within the exception for trade marks or brand names.
5. Christine York t/a Checked and Vetted – 5 October 2016 – The ASA found that claims made on the advertiser’s tradesman agency website had been substantiated and were therefore not in breach of the Code.
6. JB Global Ltd t/a Oak Furniture Land – 19 October 2016 – An advert for furniture sold by the advertiser was found to be misleading as both the materials used in, and the process for, construction contradicted the headline claims made as to the quality of the goods.
7. LeoVegas Gaming Ltd – 19 October 2016 – A television advert featuring a man who left a friend to gamble on his phone was not considered socially irresponsible as the setting did not portray or make any inferences as to this impacting on the character’s daily routine.
8. BGO Entertainment Ltd – 19 October 2016 – One of three complaints made against the advertiser’s marketing material was upheld for suggesting that gambling could be a viable way to achieve financial security.
HEALTH AND BEAUTY
1. Colgate-Palmolive (UK) Ltd – 26 October 2016
A television advert for Sanex Advanced Hydrate 24 Hour shower gel featured a voiceover which stated “This is dry skin. Introducing our clinically proven way to hydrate it, a shower gel”, and that the gel was “Proven to moisturise skin for 24 hours. Recommended by 97% of women who tried it”. Onscreen text at the end of the advert stated “Results shown after one week of use. 97% of 32 daily body lotion users”.
Complaint / Decision
The ASA received two complaints, challenging the claims that the shower gel actively moisturised and hydrated skin, that the effect lasted for 24 hours from first use, and that results could be shown “after one week of use”, on the basis that these claims were misleading and could not be substantiated.
The ASA upheld the complaints.
First, the ASA looked at the claim “proven to moisturise your skin for 24 hours” and concluded that, due to the prominence of the 24 hour claim, it needed to be made clear that this would only be the case after one week’s use on a daily basis. It was considered that consumers would instead understand the 24 hour claim to apply from first use.
The ASA then assessed the clinical study put forward. The ASA determined that, despite being generally robust in terms of its design, the study excluded certain skin types including dry skinned individuals, which the ASA considered to be a significant issue. The ASA did consider the differences shown by the study in the skin water levels of participants to be statistically significant and suggested a small increase, but stated that they were not necessarily clinically significant.
The ASA then also noted deficiencies in the other study relied on – a consumer perception test. The participants were asked a series of questions about their view on the product’s effects, the results of which were generally positive. However, there was uncertainty as to the numbers of dry-skinned users who participated in the user stage of the tests and the only statement that directly supported the claim made was “Keeps my skin moisturised for 24 hours”, which 60% of the total panel agreed with. The ASA concluded that this level of agreement was not sufficiently high to support the claim made, particularly in the light of the “Recommended by 97% of women” headline claim.
Finally, the ASA examined three further studies provided by the advertiser using similar products, but not the advertised product itself. The ASA determined that these were also insufficient to support the claims made. The first involved a test carried out only one hour after use, which was irrelevant to the 24 hour claim. The second was a small study of only 15 subjects and did not show results which could substantiate the claims relating to the long-term effect of the product. The third study did not specify skin types and involved twice daily use, which was therefore unlikely to mirror typical consumer use. As a result, no study was put forward which could substantiate the headline claims made and therefore the claims were found to be misleading.
This adjudication is useful for any advertiser seeking to rely on scientific tests or consumer surveys to substantiate claims made. Advertisers must take great care to ensure that substantiation being relied upon directly relates to the claims being made and that all surveys or tests relate to the product in concern, are of a sufficiently substantial size and utilise appropriate methodology, even if this results in findings which are less favourable for the product or service as they might be if presented otherwise.
2. Diet Chef Ltd – 26 October 2016
A television advert featured a character, Cheryl, talking to her former self, two months after starting the advertiser’s diet. In this the former Cheryl commented, “You look amazing, I never dreamed I could be that slim again. It feels good... I bought a bikini last week, for the first time since this picture”. A voice-over then stated “Discover why over 150,000 people like Cheryl have chosen Diet Chef to lose weight”. The former Cheryl was shown on screen wearing a baggy shirt with a messy and distressed looking appearance, whilst the current character was shown in a fitted outfit with a more polished look and a happy demeanour.
Complaint / Decision
Twenty-six viewers complained that the advert exploited women’s insecurities about their bodies by implying that you needed to be slim in order to be attractive and happy, and that overweight women did not take care of themselves or their appearance, and therefore the advert was offensive and irresponsible.
The ASA first addressed the allegation that the advert was offensive. They noted that whilst the former Cheryl appeared less polished that the current version, this did not give viewers an impression that she had neglected her personal appearance. The ASA therefore concluded that consumers were unlikely to interpret the advert as implying that overweight women did not take care of themselves or their appearances, and therefore it was unlikely to cause serious or widespread offence.
However, in relation to complaints focusing on the advert’s irresponsible nature, a different conclusion was reached. The ASA noted that the former Cheryl appeared distressed when looking at her current self wearing a bikini, and her voice sounded tearful. The former Cheryl was heard to say “I want it, I want what you’ve got”, and repeatedly asked “How?”, giving a strong impression that she was desperate to lose weight and this was affecting her general happiness. The ASA considered that viewers would understand that her concerns about her weight had a significant effect on her general well-being.
The ASA concluded that the advert focused disproportionately on the former Cheryl’s negative feelings about her appearance and implied that weight loss was the only solution to her problems, and to make her happy. It therefore implied that those with insecurities about their bodies, particularly their weight, could only achieve happiness and self-confidence through weight loss, resulting in a finding that the advert presented a socially irresponsible approach to body image in breach of the Code.
This adjudication is another reminder for advertisers to take care not to imply that their marketing material does not imply that their goods or services can have a positive effect on their general wellbeing or happiness. Particular care should be taken in this respect with adverts promoting products or services in the gambling, or health and beauty sectors.
FOOD & DRINK
3. Global Brands Ltd – 26 October 2016
The Facebook page for Joe Charman, a comedian popular on social media, in particular the entertainment site Vine, featured an image of him drinking from a bottle of Hooch. The page included a video labelled “When it’s your round, make it a Hooch! #OutrageouslyRefreshing”. He was then shown next to a swimming pool, where he jumped onto an inflatable which was floating in the water. The advert ended with footage of him drinking Hooch from a bottle with two male friends.
Complaint / Decision
The complainant believed the advert showed Joe Charman, who they believed was popular with young people, behaving recklessly and generally in a manner which could be considered juvenile or child-like. On this basis they challenged whether the advert could be seen to be marketing alcohol to those under the age of 18 in breach of the Code.
The ASA upheld the complaint.
Mindful of the prohibition on marketing materials for alcoholic products aimed at or appealing to children, the ASA assessed whether any of the material associated alcohol with behaviour or activities which would be common amongst, or attractive to, under-18s. The ASA first assessed the advertiser’s branded content in the header of Joe Charman’s Facebook page, and acknowledged that this did not include any material which in itself infringed the Code.
However, the ASA considered that presenting Joe Charman as the main focus of the advertiser’s other marketing materials, including images of him performing a stunt using a swimming pool inflatable, depicted behaviour likely to be regarded as juvenile and accordingly was of particular appear to those under the age of 18. The overall purpose of the material was to sell an alcoholic product, and therefore the ASA concluded that the advert breached the Code.
The ASA are increasingly scrutinising sponsored adverts posted on the social media accounts of well-known stars and celebrities, as the popularity of this form of marketing grows. Advertisers should always pay due regard to the nature of the audience of the social media account in concern and construct their advertising accordingly, particularly if the star is seen to be popular with young people. In this way, advertisers should be extremely careful to avoid creating an association between young people and alcohol or gambling, for example.
4. Leon Restaurants Ltd – 26 October 2016
A menu item listed on the advertiser’s website stated “Original Superfood Salad”.
Complaint / Decision
The complainant challenged whether the claim made a nutrition and health claim in breach of Regulation No. 1924/2006 (the Regulation), as reflected in the CAP Code.
The complaint was upheld.
The ASA first commented that the reference to “superfoods” was likely to be understood as relating to the general benefits of the products in concern for the overall health of consumers. As such, the claim was a general health claim which, under the Regulation, must be listed as authorised on the EU Register of nutrition and health claims made on food before being used to market goods, and must also be accompanied by a permitted nutrition or authorised health claim.
The ASA then considered the exception to the general rule in the Regulation for trade marks or brand names existing before 1 January 2005, which provides a reprieve for marketing communications until 2022. The ASA noted that there was no pre-2005 trade mark, nor had it seen any evidence sufficient to establish the brand name with the requisite goodwill. They had not, for example, been provided with evidence detailing the level of trade by the advertiser for the product. In any event, the terms “superfoods” and “superfoods salad” were descriptive rather than distinctive and therefore it was unlikely that the advertiser would have secured sufficient goodwill and recognition to establish the brand name and to allow it to take advantage of the exception.
Accordingly, the ASA concluded that the advert breached the Code.
This adjudication, which has been widely reported upon in the press, is an interesting reminder of the exception to the general rule on permitted nutrition or authorised health claims. However, this exception is always likely to be applied very strictly. The ruling is therefore also a reminder for advertisers, particularly those in the food, drink industries to take care with the use of terms in their advertising which may imply a health benefit.
5. Christine York t/a Checked and Vetted – 5 October 2016
A television advert promoted the advertiser’s tradesman agency website. The advert stated “We interview all of our tradesmen… we check references, trade qualifications and insurance”.
Complaint / Decision
The complainant challenged whether the claims made were misleading and capable of substantiation.
The ASA did not uphold the complaints.
The ASA considered that consumers would understand from the specific claims made in the advert that Checked and Vetted undertook the checks identified before allowing individuals to join as members. Consumers would therefore understand that the information provided on the advertiser’s website had been adequately verified, and could be relied upon.
The advertiser was able to shoe the ASA that its procedures ensured that no information should appear on its website unless all necessary steps were completed, and that only a Senior Vetting Officer was able to ‘go live’ with details on the website. The ASA therefore concluded that the advertiser could provide full and proper substantiation for its headline claims and, accordingly, the marketing material was not misleading.
This ruling is a reminder for advertisers to ensure they have proper procedures in place to record or retain information which can substantiate any claims made, particularly where these are the dominant feature of any adverts or indeed fundamental to the advertiser’s general advertising strategy.
6. JB Global Ltd t/a Oak Furniture Land – 19 October 2016
Three adverts (shown on television, YouTube and company website) featured two characters walking around a furniture store. The characters stated the phrase “No veneer in here” as they examined various pieces of furniture. A voiceover was heard reminding viewers always to ask whether the furniture they viewed contained any veneer. In the YouTube advert and on the advertiser’s website, this was supplemented by the statements “100% Solid” and “100% solid hardwood furniture”, along with reassurances that the furniture contained no chipboard, veneer or plywood, meaning the furniture would “last for years to come”.
Complaint / Decision
The complainant, a building company, challenged the adverts on the basis that the advertiser’s furniture was made using an “oak wrap” technique, and therefore the claims made that the furniture did not contain any veneer were misleading to consumers.
Despite the advertiser’s arguments and submissions, which included a lengthy consumer survey, the ASA upheld the complaint.
The ASA acknowledged the findings of the consumer survey, which the advertiser said had found that 72% of respondents did not believe hardwood to be made from a single piece of wood, but commented that this did not address the main issues in question due to the way the questions were framed.
Also assessed by the ASA was an expert report provided by the advertiser. Whilst the view of the consulted expert was acknowledged, the ASA did not believe this to be necessarily indicative of the perspective of the average consumer who saw the adverts (the expert having a degree of knowledge of furniture construction beyond any consumer). What was more important was how the advert would be understood by the average consumer.
The ASA considered the expert report alongside a study of the precise way that the product had been put together, concluding that, whilst the furniture contained an outer layer of relatively high quality wood, the “oak wrap” effectively functioned as a veneer. Although the ASA agreed with the advertiser that an average consumer would not expect whole units to be whittled down from a single piece of wood, it considered they would be unlikely to expect from the claim “100% hardwood” that parts of the furniture would actually be made from numerous smaller segments of wood glued together.
This adjudication shows that the key issue in cases such as this will always be how the “average consumer” is likely to interpret advertising claims, whether these are express claims or implied. An expert opinion is likely only to be important in more technical and for scientific contexts.
This adjudication is also interesting by reference to the consumer survey on which the advertiser sought to rely. Surveys may be of value but will always be subject to critical review, so particular care needs to be taken as to the questions asked within the survey. If putting together a survey, it is important to keep in mind any potential challenges that may be raised and to craft the questions accordingly.
7. LeoVegas Gaming Ltd – 19 October 2016
A television advert featured a man returning to the beach holding two ice creams, to find that his friend had left. The camera cut to the words “Gone to Vegas” written in the sand. The friend was shown playing roulette on his phone in a café. A voice stated “With 50 free spins to get you rolling, there’s only one mobile casino that gives you that real Vegas feeling – LeoVegas”, with the accompanying hashtag ‘#GoneToVegas’.
Complaint / Decision
The complaint was made on the basis that the advert was socially irresponsible, as it portrayed gambling as taking priority in daily life.
The ASA did not uphold the complaint.
The ASA did not consider that the scenario depicted in the advert suggested or implied that gambling had taken priority over spending time on the beach with a friend.
The ASA also understood that the setting chosen by the advertiser, a day at the beach, would not generally be considered as an everyday or typical activity and therefore it could safely be considered that the gambling was not impacting on the man’s daily life, either professionally or at home. The ruling may have been decided differently had the setting been during the man’s usual or daily life, where the conclusion that gambling was impacting the character’s general lifestyle could perhaps be drawn.
The conclusion reached by the ASA should serve as a reminder to advertisers not to produce marketing material which portrays gambling, or any similar interest or activity, as taking priority in the life of an average consumer, or over any other commitments that a consumer may have. Particular care needs to be taken with gambling adverts, which are likely to be a focus of scrutiny by the ASA and are the subject of an increasing number of complaints reflecting significant growth in the area.
8. BGO Entertainment Ltd – 19 October 2016
A television advert for the advertiser’s gambling website featured a poolside party, featuring celebrities, rappers, cars, a jet flying over a mansion, a yacht and a motorbike. A second male character was seen dancing with two women and dealing cards. The lyrics of the song playing in the background stated “My, my winning makes me so rich. Makes me sing… Thank you for blessing me with a chain that’s bling and a head that shines. I own the hot seat”. A similar sponsored advert on Instagram featured the same characters holding magnum bottles of champagne. Text stated “50 FREE SPINS NO DEPOSIT REQUIRED… The Boss thinks you can’t BEAT him! Why not give it a go and prove him wrong?”.
Complaint / Decision
Two viewers challenged the television advert on the basis that it was irresponsible, as it suggested that gambling could be a way to achieve financial security. One of the same viewers also challenged the television advert on the basis that it had particular appeal to those under 18 years of age, and was therefore irresponsible. The same viewer challenged whether the Instagram advert was irresponsible on the basis that it linked gambling with alcohol and sexual success.
The ASA upheld the first complaint made in respect of the television advert, but did not uphold the second complaint made against the same television advert, or the Instagram sponsored advert.
In relation to the first complaint, the ASA commented that not all viewers would identify the boss character as the casino owner. Instead, despite the advert being somewhat fantastical and exaggerated, viewers would likely draw the conclusion that the character had secured his extreme wealth as a result of gambling, which the ASA unsurprisingly considered was reinforced by the lyrics “My winning makes me so rich” and the large pile of gambling chips which surrounded the boss.
Moreover, the advert highlighted the man’s extreme wealth and gave the impression that it was something to aspire to by challenging viewers to ‘beat the boss’ to achieve similar wealth and prosperity. The advert suggested that if viewers were up to the challenge, and succeeded, then they could also live an extravagant lifestyle. The ASA concluded that suggesting that gambling could be a way to achieve financial security was irresponsible.
The ASA did not, however, uphold the second or third complaints. In relation to the allegation that the television advert appealed strongly to children, the ASA did not consider that the general tone or specific content of the advert were of particular appeal to children. The music was dated, the clothing largely out of fashion and the mobile phones of a large size. In this respect, the ASA concluded the advert had more of an appeal with older generations and was therefore not an example of irresponsible marketing.
In a similar vein, the ASA also concluded that the bottles of alcohol in the Instagram-sponsored post, whilst clearly identifiable, were largely incidental and not included in the context of any of the characters appearing to be under the influence of alcohol, and was therefore not irresponsible. Moreover, although the women in the advert were glamorously dressed, they too were not presented in an inappropriate or sexual way and there was nothing in the advert linking gambling with sexual success or enhanced attractiveness. The ASA therefore concluded that this advert was not in breach of the Code.
This ruling, one of several concerning the gambling industry in the last few months, is interesting for two reasons. First, the ruling follows a similar line to the decision in Cosmo Gaming Company in last month’s snapshot which also involved a finding of irresponsible marketing for suggesting that gambling can be a way for consumers to achieve financial security and that betting can improve one’s self image and represent a positive life choice. Advertisers should always be minded to avoid presenting gambling in such a ‘positive’ manner.
The ruling is also interesting in that it provides advertisers with some comfort when featuring alcohol or images of ‘glamorous’ individuals in their adverts. This type of content can be used as long as it does not appear irresponsibly to link gambling with attractiveness, or show characters to be gambling whilst under the influence of alcohol.
Fantastical or exaggerated scenes will sometimes save an advert from having a complaint upheld. However, this is less likely where the subject of the advert is gambling or alcohol, where the ASA is likely to maintain a very strong line.