COMPUTERS AND TELECOMMUNICATIONS
- Sky UK Ltd (2 March 2016)
A radio ad for Sky Fibre broadband service stated "Ah, broadband routers. Little magical boxes that sit quietly delivering internet to your whole house. Until the light starts flashing orange. Switch off, switch on. But still it flashes orange and a little voice inside your head flies into a fit of router rage. Why won't you just work! If your router is leaving you in a rage, it's time to switch to superfast Sky Fibre now. Free for one year with Sky line rental ...".
Complaint / Decision
A listener challenged whether the ad misleadingly implied that there would be no loss of router connection with Sky. The ASA did not uphold the complaint.
Sky advised that the ad was intended to show that Sky Fibre was reliable, not that there would never be a loss of router connection. They provided an Ofcom report that they believed showed connection reliability for their service was higher than that of a number of competitors. They also believed their network monitoring had shown a consistently high level of uptime, and consumers who identified with 'router rage' would have a better experience on Sky Fibre.
The ASA considered that the Ofcom report confirmed that the Sky service was more reliable for connection than some of their competitors. Although the ad implied that Sky Fibre would likely provide a more reliable service, it did not claim that outages would never happen. As such the ASA concluded that listeners would understand that the ad was encouraging them to try the Sky product instead of putting up with a poorly performing service. As Sky had been able to show that their service was more reliable than a number of their competitors, the ASA considered that the ad was unlikely to mislead consumers about the type of the service being offered and therefore concluded that the ad was not misleading.
In this adjudication the absence of any absolute claims by Sky with regards to router connection and the supporting Ofcom report in relation to router reliability ensured that no breach of the Code occurred. This illustrates the importance of making carefully considered claims and to be able to meet any challenges with appropriate substantiation. Sky may be somewhat fortunate as they could only show greater reliability compared to some/a number of their competitions. As a result this ruling is slightly surprising however the ASA clearly did not consider the claim to imply greater superiority.
- Plusnet plc (9 March 2016)
Claims on the website www.plus.net promoted broadband packages. Text stated “TOTALLY UNLIMITED” and “Unlimited downloads Truly unlimited broadband with no usage limits. Browse and download around the clock”.
Complaint / Decision
The complainant, who understood that Plusnet imposed a traffic management policy, challenged whether the claim “TOTALLY UNLIMITED” was misleading and could be substantiated. The ASA upheld the complaint.
Plusnet stated that they utilised traffic prioritisation, rather than restrictions, to ensure that their unlimited customers with slower broadband connections got the best internet user experience and that according to CAP guidance on ‘Unlimited claims’, traditional traffic management was permitted on ‘unlimited’ broadband services as long as it was “moderate”. Plusnet believed that if traffic prioritisation was not permitted on an “unlimited” service, it would give rise to a confusing situation in which providers offering “unlimited” broadband would be permitted to slow down a user’s overall connection speed, while providers applying traffic prioritisation, but not slowing down a customer’s overall connection, would not be permitted to refer to their service as “unlimited”.
The ASA considered that a “totally unlimited” claim was stronger than an “unlimited” claim, and that consumers would understand this to mean that the service was free from any provider-imposed limitations. With this in mind the ASA considered that the mandatory prioritisation that Plusnet applied still constituted a provider-imposed limitation on a customer’s usage. Consequently they considered that the prioritisation policy needed to be clearly explained in the marketing communication so consumers could make an informed choice as to whether the service, and the policy of hierarchical prioritisation in place, would be suitable for their needs.
The ASA also noted that the claims were not asterisked or qualified in any way. While there was information on the “Support” pages regarding the policy, it appeared under the heading “How traffic management works” and did not make clear that it was traffic within an individual household that would be prioritised. The ASA did not therefore consider that the ad made clear that a traffic prioritisation policy existed, how it was applied, or its potential impact on customers and so concluded the term “totally unlimited” was likely to mislead.
This adjudication is interesting as, despite Plusnet referring to CAP guidance to substantiate their claim, the ASA still upheld the complaint against Plusnet. It is worth noting that the use of the word “totally” was bound to increase the strength of the claim and therefore also the standard at which it was assessed by the ASA, showing the importance of analysing the effect of each word used within a claim. Furthermore, the fact that the prioritisation policy was not clearly drawn to consumers attention was significant. This complaint should therefore remind marketers that any qualifications to claims, especially if the claims can be shown to be legitimate, must be prominently highlighted to consumers so as not to mislead, and must, of course, also not be such as to contradict any headline claim.
- Sky UK Ltd (19 March 2016)
A press ad for Sky broadband stated "Fastest peak time speeds measured by Ofcom". Text underneath stated "For speeds up to 38Mb". Small print at the bottom of the ad stated "... Fastest peak time speeds: measured by Ofcom comparing Sky, BT, Plusnet and EE's up to 38Mb in its latest UK fixed-line broadband performance report (November 2014) ...".
Complaint / Decision
BT challenged whether the "Fastest peak time speeds measured by Ofcom" claim was misleading, because the Ofcom report the claim was based on had not taken into account Wi-Fi performance and because the Fibre to the Cabinet (FTTC) data used in the report had not been 'normalised' to take into account the distance from the exchange. The ASA upheld the complaint.
Sky stated that it factually reported Ofcom's findings and did not infer wider performance claims requiring further substantiation. Although Sky believed consumers would understand that the claim related to fixed-line broadband performance, they provided a comparative testing report which they believed showed that their router delivered sufficient bandwidth to support an up to 38 Mb connection, and outperformed over distance their competitors' routers. Sky believed it would be highly unusual to prevent advertisers from factually reporting on a consumer report issued by an industry regulator to enable objective comparisons.
Although the ASA noted that the Ofcom report itself was unlikely to mislead consumers, they considered that consumers were likely to interpret "fastest peak-time speeds" to mean the speeds they would receive in the home environment, including when they were using their devices wirelessly. The ASA considered that the footnote, which referred to "fixed-line broadband performance", was not sufficiently prominent and did not make it sufficiently clear that Wi-Fi performance was not included in the analysis. In relation to the report submitted by Sky, the ASA noted that the test had been carried out 18 months previously and only compared three competitors and, as such, considered that Sky had not adequately shown that its router performed better in terms of speed than those of its competitors.
As discussed in last month’s snapshot, the ASA considers “No 1” claims very carefully and requires robust substantiation to support such claims. Clear, accurate and current evidence must be provided and prominently displayed and any reports or studies used to substantiate claims must have occurred recently.
- Great Grass MCR Ltd (2 March 2016)
A poster for Great Grass MCR Ltd, a supplier of artificial grass products showed a close-up image of a woman in a bra alongside a photograph of an artificial lawn. Large text across both images stated "REAL OR FAKE?".
Complaint / Decision
A complainant challenged whether the image of a woman's breasts and the challenge to consider whether they were real or fake was offensive. The ASA upheld the complaint.
Great Grass said the ad contained their usual slogan and was put together, they believed, tastefully and with humour, taking into account the need for the ad to have impact but not cause offence. They said the ad had not been placed near a school or church or in a residential area.
The ASA considered that the close up image of a woman in a bra bore no relevance to the product being advertised, and that a link between real and fake breasts, and real and fake grass, was not one that consumers would normally make. Although the image was not sexually explicit, the ASA considered that the use of it alongside an image of an area of grass, where consumers were asked the question "REAL OR FAKE?", had the effect of demeaning and objectifying women by using their physical features to draw attention to the ad and as such was likely to cause serious offence to some consumers.
Although the ASA can be robust when considering complaints as to potentially offensive ads, there is little appetite among regulatory and consumers alike for sexists or objectifying language or imagery in adverts and seeking to rely on humour in these sort of circumstances can often prove unsuccessful. As such advertisers should be aware of the risk of negative publicity and harm to their brand resulting from using anything in their marketing that could be construed as such.
- Tesco Stores Ltd (2 March 2016)
A national press ad for Tesco was headlined “Never pay more for your branded shop”. Small print included “Min. basket of 10 different products, including 1 comparable branded product.
Complaint / Decision
The complaint was on the basis that the ad did not make the minimum purchase restriction sufficiently clear, and that, therefore, the claim “Never pay more for your branded shop” was misleading. The ASA upheld the complaint.
Tesco believed that consumers were familiar with the fact a minimum spend requirement generally applied for price match offers. They considered that it was sufficient to bring the minimum purchase requirement to consumers’ attention in small print, because it was not so significant as to contradict the headline claim. Tesco had taken advice from the CAP Copy Advice team, who believed the ad was likely to be acceptable in relation to the minimum purchase requirement.
The ASA highlighted a report by the CMA which emphasised the importance of retailers communicating clearly with consumers to help them understand how schemes operated and enable them to take informed decisions. Whilst the ASA noted that the Copy Advice team’s view was that it was likely to be acceptable to set the minimum purchase requirement out in small print, the ASA considered that it was not sufficiently clear from the main body of the ad that it was necessary to buy multiple products in order to qualify. In addition, they considered “Never pay more for your branded shop” was an absolute claim that was likely to be understood by consumers to mean that if they purchased branded good(s), they would qualify for the price match against the named retailers. The ASA also considered that the small print contradicted the headline claim and was not sufficiently prominent to counteract the misleading impression created by it meaning that the ad was misleading.
It is significant in this adjudication that despite seeking advice from the CAP Copy Advice team, the ASA still upheld the complaint against Tesco and is a reminder that seeking CAP Copy advice does not ensure that a complaint will not be upheld. Advertisers should always take particular care when reviewing an ad holistically that careful consideration is given to how a consumer is likely to consider an ad.
- Argos Ltd (2 March 2016)
A website for Argos Ltd promoted "Andrew Barton Salon Sleek Argan Infused Hair Straightener". Text stated "Was £64.99 £32.49* HALF PRICE". The asterisk linked to text that stated "Please note item 2139254 has previously been on sale at 25.99".
Complaint / Decision
The complainant, who understood that the straighteners had previously been available for less than £32.49, challenged whether the savings claim was misleading and could be substantiated. The ASA upheld the complaint.
Argos Ltd provided sales data which showed the product had been available at four prices over the period ranging from £64.99 to £25.49. Argos explained that the two lowest prices were “spike deals”, which were permitted within the BIS Pricing Practices Guide (PPG), and lasted for a very brief period. They said the data showed that they had charged the higher price of £64.99 for longer than they had charged any promotional price and longer than all the promotional prices put together. Further, of all the units sold in the relevant period, 25% had been sold at the higher price and therefore Argos believed that this share represented a “significant quantity” of those sold, and justified the savings claim.
The ASA noted that the highest volume of sales, over double those achieved at £64.99, had been at £32.49. Furthermore, whilst the product had last been available at £64.99 at the end of September, it had subsequently fluctuated in price during the intervening period and had been offered at £32.49, £29.24 and £25.49 during that time. In addition, from April to the end of September, the product had not been consistently available for £64.99, but had been on sale for £32.49 for two periods. In light of those factors, the ASA considered that at the point the complainant viewed the ad, the “was” price was not a genuine representation of the price at which the product was usually sold, and that the implied savings claim was misleading.
When reviewing complaints relating to pricing claims the ASA will consider the appropriateness of the claim made in the context of the price of the product over a reasonable period of time. As shown by this adjudication the ASA will not only look at the number of prices the product is available at over this period, but also which listed price produced the highest volume of sales to ensure any associated claims are a genuine representation of the price at which the product is usually sold. Even if advertisers comply with the BIS guide on the face of it they cannot rely on small print if it is not a genuine price saving.
- The Jewellery Channel Ltd (16 March 2016)
A teleshopping ad, broadcast on The Jewellery Channel, featured four pieces of tanzanite jewellery: a pendant and three rings. In relation to the pendant, described in on-screen text as “AAAA Tanzanite (Pear 7.00 Ct)”, the presenter stated that the pendant “… would be considered a 5A grade piece”, because it was pear cut and over five carats. In relation to a ring, described in on-screen text as “AAA Tanzanite (Ovl 6.50 Ct)”, the presenter stated that she considered the stone would be assessed at “4A grade”. Throughout the ad the presenter referred to the scarcity of tanzanite, and that collectors and investors were particularly interested in purchasing it, including claims such as “When we know the scarcity of this stone in the marketplace, there are very few equivalent quality pieces we can show you worldwide. That is why perhaps getting hold of the platinum settings and the finest grade of diamonds alongside it makes it such an heirloom piece”, “This is what the collectors, the investors, are all purchasing”,
Complaint / Decision
The complainant challenged whether:
- the claims made by the presenter that the stones in the pendant and ring would be assessed at a grade higher than that stated in the on-screen text misleadingly exaggerated their quality; and
- the ad breached the Code because it implied an unregulated product could have investment potential.
The ASA upheld both complaints.
The Jewellery Channel stated there were many ways to rate and grade a stone but that the grading system they used, the Birmingham Assay Office, had 4A as the highest standard for tanzanite and did not have a 5A grading. There were, however, other businesses who referred to a 5A standard for tanzanite and The Jewellery Channel provided screenshots of these. They advised that all their jewellery was graded by independent experts or their own internal experts and that they had knowledge and visibility of the supply chain for their tanzanite gems.
The Jewellery Channel advised they were in the business of selling jewellery rather than promoting investments and that the jewellery was promoted on its inherent attractiveness and with the intention it be worn.
The ASA noted that throughout the presentation the presenter made a variety of claims about the pendant and rings and intimated that there was a worldwide universal grading system for tanzanite based on five levels of grading. The ASA considered that consumers would therefore understand that the jewellery was actually of a higher quality than stated in the on-screen text. The Jewellery Channel had not provided any evidence that the stones had been graded by an external body at a grade higher than that stated in The Jewellery Channel’s on-screen text and as such the ASA concluded the claims made in the ad were exaggerated and misleading.
The ASA considered that the presenter’s references throughout to the scarcity of tanzanite and the explicit references, made twice, that “investors” were “purchasing” tanzanite jewellery contributed to the impression that tanzanite jewellery had investment potential. However, as jewellery was not an investment product regulated or permitted under the Financial Services and Markets Act 2000, the BCAP Code did not permit advertising which implied it could have investment potential, other than on specialised financial channels. Therefore the ASA concluded the ad breached the Code.
Shopping channels have often been subject to complaints for using misleading and exaggerated claims and the ASA has previously referred companies to Ofcom which has the power to fine or even revoke companies broadcast license. Shopping channels should ensure that presenters are properly advised in relation to acceptable claims and that all items sold are accurately described and the claims independently verified.
- Nobody’s Child Ltd (30 March 2016)
Two poster ads displayed on bus shelters, for the clothing brand Nobody’s Child:
- One ad featured a female model wearing a black jumpsuit and heeled shoes, sitting on the arm of a sofa with one leg bent in front of her resting on the sofa and her arms in a relaxed position. She was looking at the camera. Text stated “nobody’schild.com”.
- The other ad featured the same model wearing a tartan dress, sitting on a chair facing towards the camera. One leg was slightly raised. Text stated “nobody’schild.com”.
Complaint / Decision
The ASA received three complaints.
- All three complainants believed the poses and facial expressions of the model sexualised someone who they considered appeared to be a child, and therefore challenged whether the ads were irresponsible and offensive.
- One complainant additionally challenged whether the ads were irresponsible and offensive because they believed the images, in conjunction with the brand name “Nobody’s Child”, implied the images were of a vulnerable child.
The ASA upheld both complaints.
Nobody’s Child Ltd did not consider the models used in the ads to be sexualised, or that they would be perceived as being a child or vulnerable. The advised that the model was 21 years old and they had chosen not to style her in heavy makeup or bright lipstick in order to avoid projecting any kind of vulgarity. The stated that the name Nobody’s Child was intended to reflect the feeling their target audience experienced, in respect of no longer being children and were now their own person. The therefore considered the name recognised that their target audience had reached an age where they could make their own decisions and be their own people, rather than conveying vulnerability.
The ASA considered the poses of the model in both ads to be mildly sexually suggestive and that the pose in ad (b) in particular also suggested vulnerability. Whilst the ASA understood the model featured in both ads was 21 years of age they considered that she appeared younger and that when shown in conjunction with the prominent brand name “nobody’schild.com”, would be regarded as appearing to be a child. In this context the ASA considered that the model’s poses implied vulnerability and sexual precocity. Consequently the ASA concluded that the ads were irresponsible and likely to cause serious or widespread offence.
This adjudication received a significant amount of media coverage due to the juxtaposition between the brand styling itself as an ethical fashion brand and the ASA’s finding that both ads sexualised a model who appeared to be a child and/or vulnerable. As this adjudication illustrates, if marketers target their ads irresponsibly or in a way which is likely to cause serious offence, the resulting negative publicity can have an extremely detrimental impact on the image of the brand. Advertisers of clothing or perfume in particular need to take care with any ads featuring models who appear to be under age if the models are in poses that may be considered sexually provocative. This point is particularly pertinent in light of the news that the ASA is launching a formal investigation into gender stereotyping in advertising in response to the increasing political and public debate on equality issues in recent years.
- Computer Risk Management Ltd (30 March 2016)
Claims on www.printerland.co.uk, seen in July 2015, promoted printing products. Prices on the home page were presented exclusive of VAT, for example, "Only £196.00 ex VAT" and “From £262.49 ex VAT”. On a product page for a laser printer, large red text stated, "Price after cashback: £162.97", with smaller black text alongside stating "ex VAT". Smaller grey text on a light grey background stated "£195.20 inc VAT". Underneath, black text stated the price before cashback as, "Only £196.00 ex VAT", with smaller grey text again underneath, which stated "£235.20 inc VAT".
Complaint / Decision
The complainant challenged whether the VAT-exclusive prices were misleading.
The ASA upheld the complaint.
Computer Risk Management stated their main focus was to sell directly to business consumers, and that the majority of their sales fell into that category. This was therefore the leading factor in their decision to advertise their products using the ex-VAT price.
The ASA noted that the CAP Code states that quoted prices must include non-optional taxes, duties, fees and charges that applied to all or most buyers, although VAT-exclusive prices could be given if all those to whom the price claim was clearly addressed paid no VAT or could recover VAT.
The ASA considered that the website was likely to be visited by both consumers and businesses and considered the prices that applied to consumers, inclusive of all taxes, should therefore have been given. They also stated that prices quoted as being exclusive of VAT should have been clearly addressed to business customers and to be accompanied by a prominent statement of the rate or amount of VAT payable. While prices were labelled as “ex VAT” and “inc VAT”, the ASA considered that this was not sufficient to make it clear who each claim was addressed to.
This adjudication was one of two claims relating to the display of prices excluding VAT this month and serves as a reminder to advertisers that VAT-exclusive prices can only be given if all those to whom the price claim is clearly addressed pay no VAT or can recover VAT. The ASA has ruled as misleading many ads that quote prices exclusive of VAT (see VistaPrint Ltd, 4 July 2012 & Valley Services Ltd, 13 March 2013). Marketers who advertise to both consumers and business should pay particular heed to this decision.
- The Hut.com Ltd (30 March 2016)
Three email ads for The Hut:
- An email from lookfantastic stated “FREE Kerastase Accessories gift set including makeup bag and rose gold mirror worth £20 when you spend £50 on brand. Plus save up to 30% on Kerastase now and enjoy a further 10% off* when you click SHOP NOW below and use code KERAS”. The small print stated “*Offer excludes Kerastase duos and bundles”.
- An email from The Hut Group stated “PRE BLACK FRIDAY EXTREME FLASH SALE. EXTRA 25% OFF.” Further text stated “Usual exclusions apply, email exclusive, cannot be used in conjunction with cash back sites”. The small print stated “*Excludes electronics, entertainment, consoles, photo gifts, LEGO & Selected Homeware…*Unless otherwise stated usual discount code exclusions will apply”.
- An email from The Hut included text at the top of the ad which stated “FREE STANDARD UK DELIVERY WHEN YOU SPEND OVER £20”.
Complaint / Decision
The ASA received two complaints on three issues:
- One complainant, who understood that Kerastase products were excluded from the promotion in ad (a), challenged whether the ad was misleading.
The second complainant challenged whether:
- ad (b) was misleading, because it did not make clear what exclusions applied to the offer and they understood exclusions included those items where The Hut were selling the product at a lower price than the RRP; and
- the claim “FREE STANDARD UK DELIVERY WHEN YOU SPEND OVER £20” in ad (c) was misleading, because they understood that it did not apply to all products, including those items where The Hut were selling the product at a lower price than the RRP.
The ASA upheld complaints 1 & 2 but did not uphold complaint 3.
The Hut stated that the complainant received the “further 10% off” referred to in ad (a), but not an additional 30% off at checkout because the products had already been reduced by that amount compared to the RRP. They stated the discount code referred to in ad (b) was eligible for use on a number of sites and therefore customers were requested to check the relevant website which contained information about which products were not eligible for discounts. The Hut advised that the free delivery offer applied to all orders over £20 on www.thehut.com and there were no exclusions.
The ASA noted that the 30% claim did not refer to savings on the prices usually charged by the website but to claimed savings on RRP prices. Notwithstanding that savings claims with RRPs would need to be supported by evidence the ASA did not consider that ad (a) made it clear that this was a reference to savings against an RRP and as such concluded the ad was misleading.
With regards to ad (b) the ASA did not consider the ad contained sufficient information on exclusions and considered that the main claim implied that the offer applied to a large proportion of products on each website. Given that the ad referred to an “extra” 25% off, the ASA also considered that excluding products which were already ‘marked down’ with an existing savings claim, further contradicted the claim and thus concluded ad (b) was also misleading. As The Hut had provided evidence of orders where the free delivery offer had been applied the ASA did not uphold the third complaint.
This adjudication illustrates how easy it is to mislead consumers where brands offer a variety of discounts on products. Care should be taken to spell out any discounts and price savings carefully to avoid misleading consumers. If any exclusions apply to products already subject to a discount, marketers should ensure that these are clearly drawn to consumer’s attention in the ad itself.
- FanBet (2 March 2016)
An internet display ad for a betting company on the website www.arsenalstation.com, included text set out in three different frames. Two of those stated “THE #1 WAY TO IMPROVE YOUR BETTING” and “LEARN HOW TO WIN!”. The other showed the text “SAVE YOURSELF” and a silhouette of a man hanging from a rope by his neck.
Complaint / Decision
The complainant, who was concerned about the depiction of suicide in the context of a gambling ad, challenged whether it was irresponsible and likely to cause serious or widespread offence, in particular to those affected by suicide, mental health conditions or gambling problems. The ASA upheld the complaint.
FanBet said the ad had not been intended to cause harm or offence, but they acknowledged the complainant’s concern and had removed the ad as soon as the ASA contacted them. Arsenal Station said they had not noticed the silhouette of the man hanging and had removed the ad as soon as they were made aware of the complaint. They said they would check material they included on their site closely in future.
The ASA noted that the CAP Code stated that marketing communications for gambling must be socially responsible, with particular regard to protecting vulnerable persons from being harmed. They considered the silhouette, particularly in conjunction with the text created an association between gambling and suicide that was irresponsible in a gambling ad. The ASA were also concerned that the ad presented suicide in a light hearted way and that consumers affected by such issues might be vulnerable. In addition, they considered the ad was likely to cause serious offence, as a result of the light hearted reference to suicide, in particular to those affected by suicide, mental health conditions or gambling problems.
This decision contrasts sharply with February’s adjudication in favour of WHG (International) Ltd in relation to responsible advertising in gambling ads. In this instance FanBet gave little heed to the associations made in the ad between gambling and suicide, and the potential for the ad to cause serious offence. Consequently marketers should be aware that gambling ads are held to a particularly strict standard and should always take particular care to ensure that such ads are responsible in nature.
- Paramount Pictures UK (23 March 2016)
- A pre-roll video ad for the certificate 15 film “Paranormal Activity - The Ghost Dimension”, seen on 21 October 2015, on the Mail Online website www.dailymail.co.uk, before a clip relating to the boy band One Direction.
- The same ad was seen on a playlist of pre-selected Disney and music lyric videos accessed via the Vevo app on an Apple TV.
Complaint / Decision
The complainant, who believed the ads appeared before content likely to appeal to children, challenged whether the ads were responsibly targeted. The ASA did not uphold the complaint.
Paramount Pictures advised that their agency had used a media buyer to deliver a campaign specifically targeted at 15 – 24 years old using technology which determined whether to serve an ad based on the demographics of the audience that visited the platform and the online profile of the viewer, including their age. They stated that the ad appeared on the Mail Online as it had a high proportion of visitors within the target age range and that visitors to the website were identified from their online user profile as being aged over 15 years. With regards to the ad on Vevo, the ad targeted specific artists which Paramount considered to be popular with their target audience. Paramount explained that the ad was only served to users identified as 15 years or older through being signed into the app through Facebook, Google or Apple TV (which required a date of birth), and that the complainant had been identified from the Vevo app login details for Apple TV as being aged 15 years or older.
In relation to ad (a) although the ASA considered that One Direction appealed to various age groups, including under 15s, they understood that the Mail Online contained current affairs content that was unlikely to appeal to children. With regards to ad (b) the ASA understood that the appealed primarily to the target demographic of 15- to 24-year-olds and that complainant had been targeted as her online profile though Apple TV indicated that she was over 15. As a result they did not believe the ads had been placed within content specifically aimed at children and so were not irresponsible targeted.
This adjudication illustrates that technology is now available which allows advertisers to accurately target specific age groups and/or demographics. Use of such technology not only allows marketers to direct their ads precisely at their intended demographic but, as evidenced by this complaint, it also demonstrates that ads which may be deemed to be unsuitable for children have been responsibly targeted.
HOLIDAYS AND TRAVEL
- Vacaciones eDreams SL (2 March 2016)
The complaint related to four ads for eDreams, a travel agency, which offered easyJet and Ryanair flights. These consisted of two Google sponsored search results and specific landing pages on the eDreams website for both easyJet and Ryanair.
Complaint / Decision
The complainant challenged whether:
- ads (a) and (c) misleadingly implied to consumers that, by clicking the links, they were accessing official easyJet and Ryanair content; and
- through the repeated references to the company names and use of their branding, ads (b) and (d) implied they were official websites for easyJet and Ryanair.
The ASA upheld both complaints.
In response to complaints (a) and (c) relating to Google sponsored search results, eDreams said the ads did not claim to be for the official sites for easyJet or Ryanair and they did not believe they were under an obligation to state that the pages for those airlines on their website were not the official ones. They believed there were a variety of practices in online search adopted by travel companies and airlines to show their “official” site status, ranging from “Official site” to the use of the trademark or registered symbols.
In response to complaints (b) and (d) relating to specific landing pages eDreams said that their logo appeared at the top of the landing page for each website complained about and that consumers were unlikely to overlook the logo if they had seen the easyJet and Ryanair branding. eDreams also believed the multiple references to eDream’s on the site made it clear to consumers that they were on the website for eDreams’ website and not for easyJet or Ryanair. eDreams believed it was clear to consumers that the site compared multiple airlines and not just flights available from easyJet or Ryanair.
The ASA noted that the Google sponsored search results made four references to “easyJet” and “Ryanair” respectively and only one reference to eDreams. They considered the references to easyJet and Ryanair were more prominent and therefore, eDreams’ name could be overlooked, especially as consumers were likely to see the ads after having used the specific search terms “easyJet” and “Ryanair”.
The ASA noted that other ads complained about were landing pages of the eDreams website that consumers would be directed to when they clicked on the ads. For the reasons outlined above the ASA considered that, to avoid misleading consumers further, eDreams needed to ensure it would be clear to them that they were visiting eDreams’ website. Both web pages used the logo, branding and colour schemes of “easyJet” and “Ryanair” more prominently than the references to eDreams and were therefore misleading.
This adjudication should serve as a warning for comparison websites who sell third party products. Such sites should make it clear to consumers that they are not official providers of such products and avoid use of third party logos and/or branding so as not to mislead consumers into thinking they are actually on the official provider’s site.
- eKomi Ltd (30 March 2016)
Two pages on the website www.ekomi.co.uk, a third-party review service for businesses, seen in September 2015:
- A review page for a business stated "eKomi provides an independent and transparent feedback collection and management service".
- The home page stated "Genuine Ratings and Reviews".
Complaint / Decision
The complainant, who understood that companies paid eKomi for their services and that clients’ ratings would not include those from past negative reviews that had been subject to an arbitration process, challenged whether the following claims were misleading and could be substantiated:
- the claim in ad (a) that eKomi provided an independent service;
- "Genuine Ratings" in ad (b); and
- "Genuine ... Reviews" in ad (b)
The ASA did not uphold complaints 1 or 3, but did uphold complaint 2.
eKomi advised that under their guidelines only minor amendments could be made to reviews to remove swearing, racist comments and personal data. If a client believed they had been unfairly reviewed and provided proof that refuted that unfair claim, the statement would be removed. eKomi stated that their terms and conditions required clients not to use the service fraudulently and that there were instances where client’s contracts had been cancelled when their fraud protection team had detected that these terms had not been adhered to. They believed their system encouraged positive, as well as negative, reviews as they sent genuine customers a link.
eKomi advised that they used to use an ‘arbitration’ process whereby clients had five days to request arbitration before one or two star reviews would be published, but that this was being phased out in favour of a 'customer dialogue' process. Under the arbitration process if a reviewer did not respond to the arbitration request within 15 days, the review would be deleted. The new customer dialogue process entailed the negative review being published immediately, with the star rating being incorporated into the client’s average score at that point.
eKomi advised that in order to leave a review on a client’s review page they had to provide proof of the transaction. They stated their terms forbade clients from drafting their own reviews or engaging third parties to do so and that when published their systems automatically checked reviews for fraud.
The ASA considered that the fact that consumers were not required to log in to make a review and the fact that some negative reviews were removed after arbitration could reasonably account for the number of positive reviews on the site. They noted that negative feedback appeared on the site and, in particular, on the client page objected to by the complainant. Therefore the ASA had no reason to believe that eKomi was acting in the interests of their clients and deliberately refusing to publish negative reviews.
The ASA considered that it was conceivable that a reviewer might not be in a position to respond to an arbitration request, or might not wish to do so, but would not want their review to be deleted. The removal of such reviews would have impacted on the aggregate rating encompassing the claim “Genuine Ratings” from reviews over the past 12 months. In addition as only negative reviews were subject to arbitration, the resulting omissions could inflate the ratings given to a business. Although the ASA acknowledged that eKomi no longer used the arbitration they considered that at the time of the ad the claim "Genuine Ratings" had not been substantiated and breached the Code.
The ASA understood that eKomi employed various layers of fraud prevention. They provided eKomi with a sample of reviews in relation to those complained about and eKomi confirmed the order numbers and sufficient reviewer details for the ASA to be satisfied that they were genuine reviews from a variety of people. As such they concluded the claim "Genuine ... Reviews" was not misleading.
As acknowledged by eKomi in their response to the complaint, there is a distrust of review sites with consumers sceptical that such sites provide independent and transparent review. The ASA previously upheld a complaint against tripadvisor.co.uk for advertising “reviews you can trust” where Tripadvisor was not able to substantiate that all review content was genuine. By adopting clear terms and conditions preventing their clients from posting fraudulent review and proving evidence to the ASA of the sites fraud prevention tools eKomic were able to demonstrate that its site was independent and posted genuine reviews. However the ASA’s finding in relation to the second complaint shows that review sites should avoid any situations where the removal of negative reviews disproportionately inflates the average review of its clients.
- News UK & Ireland Ltd (16 March 2016)
A TV and radio ad promoted a free delivery offer for The Sun newspaper:
- The TV ad included a voice-over which stated “At The Sun we know mornings aren’t pretty, which is why we’ll deliver your copy of The Sun to your door free for 12 weeks … Get Britain’s biggest newspaper delivered free for 12 weeks”. Towards the end of the ad, on-screen text stated “T&C’s apply, 18+, new customers only, delivery charge up to a maximum of £25”.
- The radio ad stated “At The Sun we know mornings aren't pretty, which is why we'll deliver your paper free for 12 weeks … Make mornings a little brighter with 12 weeks of The Sun delivered free. New customers only. Cancel before 12 weeks to stop delivery”.
Complaint / Decision
The ASA received four complaints on the following issues, none of which were upheld.
- Two complainants challenged whether ad (a) was misleading, because they believed the on-screen text contradicted the references to the free delivery.
- One complainant challenged whether ad (b) was misleading because it did not make clear that only the delivery was free and that consumers would have to pay for the newspaper.
- One complainant challenged whether ad (b) was misleading because they understood that consumers would need to cancel the service 12 weeks in advance in order to avoid incurring a delivery charge.
News UK advised the “delivery charge up to a maximum of £25” was used to qualify that the free delivery offer was to cover delivery charges of up to £25 in value. They believed it was clear that consumers would have to pay for the newspaper and it was only delivery that was free. There was no requirement to cancel the delivery 12 weeks in advance and the advice only stated to cancel before the 12 week promotional period ended.
The ASA considered that the overall impression given by the ad was that delivery would be free up to the value of £25. They also considered that consumers would differentiate between the cost of the newspaper and the cost of the delivery service. The ASA also considered that listeners to the radio ad would understand “cancel before 12 weeks” to mean that the agreement for delivery would have to be cancelled within the 12-week promotional period, and consequently that the ad was not misleading.
- Edgewell Personal Care UK Ltd (16 March 2016)
A TV ad seen on 3 October 2015 for the Wilkinson Sword Hydro 5 razor and Hydro 5 range contained the text “Selected stores and availability. Offers end 12.11.15. See in store for details” at the bottom of the screen along with a voice-over which stated “Now half price”.
Complaint / Decision
The complainant challenged whether the ad was misleading because they believed not all products in the Hydro 5 range were available in their locality or at half price. The ASA upheld the complaint.
Edgewell Personal Care UK provided sales information that showed the participating retailers and the products that were discounted. Clearcast advised that the promotion was shared by six retailers who each selected which products in the Hydro range to discount and ran the promotion at their discretion. Clearcast believed “Selected stores and availability” accurately reflected this situation.
The ASA considered that consumers were likely to understand that the products were discounted for the duration of the promotion at participating retailers. They noted that only two of the six retailers ran the promotion on the day the ad was aired and that participating retailers opted whether to sell products from the range at full price or discounted rates. The ASA considered that these significant restrictions were not made clear and as such was misleading.
This adjudication demonstrates that where price promotions are offered across a variety of stores, any limitations in relation to such promotions much be made clear to consumers. The fact that each store was able to choose when and which products to discount was a significant restriction in this instance and should have been made clear to consumers.
HEALTH AND BEAUTY
- Nouveau Beauty Group Ltd (9 March 2016)
An advertorial for a cosmetics company, Nouveau Beauty Group, featured text that stated “This is NOT just micro-current This is nano-current. Improving skin health on a cellular level by Sally Durant … Nano-current comes with high medical credibility and clinically evidenced results. The modality originated through research into the treatment of degenerative diseases and has the remarkable ability to cause the skin cells to behave like they did when the client was younger. A-Lift works by literally recharging the skin cells by the stimulation of the mitochondria or ‘energy power plants’ within the cell’s cytoplasm. It achieves this by using a selection of electrical wave forms, currents and frequencies to stimulate the release of the energy carrier ATP (adenosine triphosphate) to fuel cellular metabolism, function and renewal at the different levels of the skin … it is essential not to overlook the effect of nano-current on the muscles. Muscle fibres are in fact elongated cells which will respond to nano-current in the same way as skin cells … So, in conclusion, can A-Lift nano-current outperform the staple micro-current machine we know and love? The answer is fundamentally yes …”.
Complaint / Decision
CACI International challenged whether the following claims were misleading and could be substantiated:
- “Nano-current comes with high medical credibility and clinically evidenced results” and “Muscle fibres are in fact elongated cells which will respond to nano-current in the same way as skin cells”;
- that the A-Lift “stimulate[s] the release of the energy carrier ATP (adenosine triphosphate) to fuel cellular metabolism, function and renewal at the different levels of the skin”; and
- “… can A-Lift nano-current outperform the staple micro-current machine we know and love? The answer is fundamentally yes”.
The ASA upheld all three complaints.
Nouveau stated that the benefits of the A-Lift’s nano-current range were demonstrated in the first report that they had provided and that this report substantiated the claim in complaint two. They also provided a second report produced by the company which they believed showed that the device emitted nano-current. Nouveau stated that they had undertaken other clinical trials on the machine and obtained opinions from beauty experts on its effectiveness, which included the author of the ad. In relation to the third complaint Nouveau stated that the A-Lift’s combined use of micro-current and nano-current technology provided two different levels of treatment, which they believed provided better results than a micro-current machine.
In relation to the first two complaints the ASA noted that Nouveau had not provided an explanation as to what was meant by nano-current, or evidence that the A-Lift machine used such technology. They noted that although the device was designed for use on the face, the subject’s forearm was used in the test. In addition the second test was conducted by the company that created the A-Lift device, rather than being independently tested and the results were not double-blinded or controlled and involved one human subject, which the ASA considered was insufficient to demonstrate that the device worked in the way described in the ad. As such the ASA concluded that Nouveau had not provided evidence to demonstrate the effectiveness of nano-current technology and that the claims had not been substantiated and were misleading.
In relation to the third complaints the ASA noted that the claim was based on the author’s own experience of using the A-Lift machine and the technical information featured in the ad. However they considered, that it would be regarded by consumers as being a comparative claim that using the A-Lift machine would achieve better results than a microcurrent machine. As the ASA had not seen comparative data showing that this was the case they concluded the claim was misleading.
Although the outcome of this adjudication is not surprising, advertisers of health and beauty products should pay particular attention to rule 12.1 of the Code which states that “Objective claims must be backed by evidence, if relevant consisting of trials conducted on people”, and that “Substantiation will be assessed on the basis of the available scientific knowledge.” In this instance, despite making a variety of claims relating to the “medical credibility” and objective claims regarding the alleged benefits of the product, these were not supported by credible medical evidence or external studies and as a result did not come close to meeting the level of substantiation required by the ASA.