1. Dyson Ltd, 2 December 2015 A national press ad and video on Dyson’s YouTube channel, which promoted the Dyson DC59 Animal cordless vacuum cleaner and featured a comparison against the Gtech AirRam, contained the following claims:
- The press ad featured an image of the two products having run across a wooden floor which had been sprinkled with fine white powder. The area covered by Dyson’s product appeared to be clean whereas a residual coating of powder, including a thicker layer towards the wheel areas was visible in the area covered by Gtech’s product. Text stated “Dyson has over 10x the suction of Gtech … DC59 Animal sucks up as much dust as even a corded vacuum. See the evidence at [website address].” The website address directed users to the YouTube video noted below.
- The video was titled “Dyson DC59 cleans up against Gtech AirRAM – Official Dyson video”. The video opened with on-screen text which stated “Dyson DC59: 10x the suction of the Gtech AirRam”. This was followed by a scene where Dyson’s Director of Engineering described a comparison test between the two products stating, “We’re using a hard floor surface, and baking powder which has been sprinkled evenly across the floor to represent fine dust.” He then applied in turn the test on each product where he ran the product across a tiled floor. A residual coating of powder was visible on the floor covered by Gtech’s product, including a thicker layer towards the wheel area whilst the section covering Dyson’s product appeared clean. The speaker stated, “There’s clearly a marked difference between the pick-up performance of both machines. Now, the Gtech has only got four air watts at the cleaner head, whereas the Dyson uses our latest digital motor and that generates ten times the suction power at the cleaner head. So not only is the Dyson better at picking up across all floor surfaces than the Gtech, but because of its unique format it’s easier to clean up high too.”
Complaint / Decision
Gtech, who believed their product, the AirRam, outperformed the DC59 according to the relevant International Electrotechnical Commission (IEC) testing standards, challenged whether:
- the press ad was misleading as it featured a comparative test that did not reflect normal household cleaning conditions and was unsuited to the design of the AirRam, and which exaggerated the capability of the DC59 to deal with fine dirt;
- the YouTube ad was misleading for the same reason;
- the product comparison in each of the ads on suction power was misleading as it implied that suction power was equivalent to pick-up performance but differing dirt collection systems between the two products meant that the Gtech AirRam required less suction power to collect dirt than the Dyson DC59; and
- the claim “…the Dyson is better at picking up across all floor surfaces …” was misleading, because they believed that according to testing to the relevant IEC standards, the AirRam outperformed the DC59 on carpets, hard flat floors and hard floors with shallow crevices. The ASA upheld all four complaints.
First and Second complaint
Dyson considered that the use of laminate floor was representative of real floors in consumers’ homes and were not intended to replicate the IEC hard floor with crevices or hard flat floor tests. Although Dyson noted that the CAP Code and relevant CAP guidance did not require every visual demonstration to be carried out in accordance with the IEC test method, they provided a selection of test data they had carried out in their own facility and by an independent third party, which they considered produced results in accordance with the relevant IEC standards. They considered that the results showed the DC59 was superior to the AirRam for dust removal from hard floors with crevices, hard flat floors and carpets. Dyson further noted that the use of their own test, which compared pick-up performance of fine dust on hard flat floors also demonstrated the superiority of the DC59 over the AirRam.
In particular, Dyson understood Gtech’s assertion that the AirRam was optimised for fine dust pick-up on the backward stroke. They noted that the IEC pick-up tests included five forwards and backward strokes but the results still showed that the DC59 performed better than the AirRam.
Dyson further understood that Gtech relied upon the DC59 manual which stated “Fine dust such as flour should only be vacuumed in very small amounts”. They explained that whilst the IEC crevice test used around 15g of test dust, which was comprised of fine dust and coarser fine sand particles, the Dyson fine dust test used a smaller amount of dust. They had used a similar amount of baking powder to the amount of dust used in the Dyson fine dust test as they believed it constituted a very small amount and was representative of a household spill.
Reciting from the CAP guidance on ‘vacuum cleaner marketing’, the ASA noted that “marketers should ensure that they have carried out appropriate tests to support all objective claims, whether direct or implied … that follow, or are of an equivalent standard to … the IEC Standard”. In considering the first complaint, the ASA explained that consumers were likely to understand the ad to portray the superiority of the DC59 over the AirRam in terms of pick-up performance on all surfaces. In order to substantiate the superiority claim, the ASA sought test data in accordance with the IEC standards for pick-up performance, which were reflective of normal domestic use on the three IEC test surfaces, namely carpet, hard flat floor and hard floor with crevices. The ASA referred the issue to an expert, and clarified that procedures undertaken at different laboratories, or even the same laboratory, from different periods and different technicians may not be comparable. The ASA considered that the most reliable way to test the products to obtain comparative test results would be by way of head-to-head testing in the same laboratory, at the same time and with the same technician. In considering Dyson’s test data, the ASA noted that the tests had not been undertaken in this way. The ASA further noted that Dyson had tested three product samples for their in-house tests on the DC59 whereas it appeared that only one AirRam had been used for two or three tests to obtain an average. The ASA also considered Dyson’s fine dust test and noted that firstly, the test was not the most relevant when an IEC standard test was available and secondly, the methodology of the test caused concern as the tests had occurred on different dates by different technicians.
In respect of the second complaint, the ASA did not consider Dyson’s test data to be sufficient to substantiate the claim. The ASA considered that the tester referred to the floor in the ad as “hard floor” but then later stated, “so not only is the Dyson better at picking up across all floor surfaces than the Gtech…”. The ASA explained that the overall impression of the ad was that the DC59 was superior to the AirRam in respect of all surfaces, whereas the featured test was only a representative example of the superiority claimed.
Dyson did not consider that the comparison implied that suction power was the same as pick up performance in the context of the ads, but it was an element of the product performance that they were entitled to demonstrate. Even if the two were the same, they considered were able to substantiate the claim as the DC59 outperformed the AirRam across all floor types, particularly hard floors with crevices. Dyson did not consider the design of the AirRam to be relevant to the claims made.
In considering the context of both ads, the ASA had concerns over the test results and concluded that the ads were misleading. The ASA explained that most consumers would believe suction power and pick-up performance to be equivalent. The ASA understood that there were various factors which could affect a vacuum’s ability to clean, including the design of the nozzle. Although they noted that the in-house test results for the DC59 showed its pick-up performance to be ten times better than the AirRam on hard flat floors with crevices, this did not apply to the results by the independent third party or for the other IEC test surfaces.
Dyson explained that their own test results as well as those of the independent third party demonstrated that the DC59 was superior across carpet, hard flat floors and hard floors with crevices. They noted that the IEC did not have a test for shallow crevices. Dyson explained that both products had been tested in-house but only the AirRam had been tested by the independent third party as they were able to carry out large amounts of IEC compliant testing themselves. They noted that there was little variability between the test locations but in any event, the difference between the performances of the two products was so great that having the DC59 tested independently would have made little difference to the results.
The ASA understood the IEC standard test to involve testing on carpet, hard flat floors and hard floors with crevices that were 10mm deep. Even though it is arguable whether 10mm is representative of modern flooring, the ASA noted that the IEC standard was the only industry-recognised test available. Therefore Dyson would need to demonstrate that the DC59 outperformed the AirRam when used across the three IEC test surfaces. However, the ASA made clear that it did not consider Dyson’s own test to be sufficient to demonstrate that the DC59 was generally superior in terms of pick-up performance. Although this adjudication is specifically relevant to vacuum cleaners, it serves as a useful reminder when considering superiority claims and what would constitute as suitable substantiation where industry standard tests are available. Industry standard tests are designed to provide fair and suitable results when substantiating a comparative claim and in particular superiority claims. Advertisers should always be cautious when using their own tests where industry standard tests are available, as the ASA will consider industry standard tests to be the appropriate basis for making a comparative claim. Further, advertisers should always ensure that the overall impression of their ad does not demonstrate something more than that what can be claimed. As was seen here, the ASA noted that consumers were likely to view the ads to demonstrate that the DC59 was superior in respect of all surfaces when this had not been adequately substantiated.
2. Victorian Plumbing Ltd, 9 December 2015
The Victorian Plumbing website advertised products on dedicated web pages. On the “Bathroom Suites Offers” page, various products were listed on offer with the “RRP” under the current price crossed out. Under the current price of £159.95 for the “Sienna Cloakroom Suite”, “RRP £299.95 Then £199.95” had been the crossed out. On the product page for the “Sienna Cloakroom Suite”, the price had been stated as “£159.95 SAVE 47%” and underneath “Normal Retail Price £299.95 Then £199.95” was crossed out.
Complaint / Decision
The complainant, Victoria Plum, who understood the product to be exclusive to Victorian Plumbing, challenged whether the saving claims and reference to “RRP” and “Normal Retail Price” were misleading and could be substantiated. The ASA upheld the complaint.
Victorian Plumbing provided evidence, by way of six other retailers, to show that the “Sienna Cloakroom Suite” was not exclusively sold by them. They did note that the other retailers offered the product at a lower price but there was not a significant difference in their price. Victorian Plumbing explained that the terms “RRP” and “Normal Retail Price” were used to demonstrate the recommended retail price of the item as defined by the manufacturer, for which they provided a screenshot from the manufacturer’s website listing the price of the product as £378. They further explained the term “then” was used to communicate the price the product was sold on their website when the product was not on offer and the price it would return to after the offer had ended. Victorian Plumbing also provided a customer invoice to demonstrate that the product had returned to the “then” price.
The ASA took the view that “RRP” is understood by consumers to mean that a product is generally sold at that price by other retailers and by shopping with a particular retailer consumers could make certain savings. Although the product in question was advertised on the manufacturer’s website at a price of £378, it could only be purchased via a retailer. The ASA considered the price of the product from the six other retailers and noted that all the prices were lower than that of the RRP stated by Victorian Plumbing. The average price of the product was £277.01 and the ASA explained that this would suggest a significant difference in price to customers. In considering this and the fact that the ASA were unsure whether Victorian Plumbing held this evidence at the time the ad was seen, the ASA deemed the RRP not to have been substantiated.
The ASA then considered the reference to “Normal Retail Price” and explained that it did not make clear to consumers whether this was a reference to the RRP or to Victorian Plumbing’s usual selling price. As Victorian Plumbing had failed to provide this information to consumers, the ASA noted that the reference was misleading. They also explained that the use of “then” prices implied that the RRP and Normal Retail Price were Victoria Plumbing’s usual selling prices rather than the price the product was generally sold across the market.
This type of saving claim, although regularly made, is often the subject of complaint to the ASA and the ASA tends to challenge the use of “RRP” and to take a strict line, taking the view that there is often the potential to mislead. It is important for advertisers to consider carefully the likely interpretation of the various pricing terms when making a savings claim and only refer to “RRP” in relation to a product where it is the general price at which the product is sold by other retailers.
FOOD AND DRINK
3. Catsteps Cafes Ltd t/a The Breakfast Club, 30 December 2015
A press ad for Christmas meals at The Breakfast Club ran in the Brighton & Hove Independent newspaper. The ad featured a cartoon snowman that held a carrot which pointed out from the groin area along with two smaller pixelated reindeer that appeared to be mating. Complaint / Decision The complainant challenged whether the ad was offensive and was irresponsibly targeted as their five year old child had seen the ad. The ASA upheld the complaint.
Catsteps Cafes explained that they were a family run business and their ad was ‘tongue in cheek’ aiming to make fun of generic Christmas advertising. They further explained that the Brighton & Hove Independent newspaper had agreed prior to publication that the ad was acceptable. They noted that the newspaper had not received any complaints about the ad. Brighton & Hove Independent newspaper explained that as they had received the ad after their usual deadline they had to fast-track it to print without their usual vetting process. They have since told The Breakfast Club that they will not print similar ads in the future.
The ASA considered the ad and the images in the ad to convey an overtly sexualised tone which was likely to cause serious or widespread offence. This was because the newspaper was freely distributed and was therefore likely to be seen by a wide audience including children.
It is not uncommon in ads to cause offence, particularly when there are sexual or religious references. This adjudication highlights the importance for advertisers to consider the tone of their ad in respect of their target market as well as the method of communication and publication particularly where a publication is freely distributed. However, this adjudication can be contrasted with Paddy Power’s newspaper ad which featured text saying: “Who’s the best mass debater? Clegg 6/4 Farage 1/2…”, which was the subject of a complaint in August 2014, but which was not upheld, even though it also appeared in a freely distributed newspaper. The difference in that case was that the newspaper was apparently aimed at an adult audience, and also the ad did not include any explicit references or images.
4. Diageo Great Britain Ltd t/a Baileys, 30 December 2015
A TV ad for Baileys featured various groups of women walking together to different bars, where they each enjoyed a glass of Baileys. On-screen text stated “IT’S NOT CHRISTMAS WITHOUT YOU … BAILEYS”.
Complaint / Decision
The complainant, Alcohol Concern, challenged whether the on-screen text was irresponsible and implied that the success of a social occasion depended on the presence or consumption of alcohol. The ASA did not uphold the complaint.
Diageo noted that Baileys was traditionally associated with the Christmas season as demonstrated by the fact that the October to December period equated to 60% of all Baileys sales in Great Britain over the last three years. They explained that “It’s not Christmas without you” referred to the fact that Christmas is a time of tradition and family, which would be celebrated with friends and loved ones. Diageo noted that consumers were likely to interpret “Christmas” to be a reference to the whole season rather than a specific event or occasion. They further noted that consumers were likely to interpret “it’s not Christmas” to mean that Baileys is one aspect of a traditional Christmas rather than the reason for its success. Diageo explained that the ad did not suggest the success of a social occasion was dependant on drinking alcohol and noted that there were no references to excessive drinking. Clearcast noted that the ad and on-screen text suggested Baileys was a beverage associated with Christmas time in general and that it did not suggest excessive drinking or that the success of a social occasion was dependant on drinking alcohol.
The ASA reiterated the BCAP Code noting that ads must not imply that “drinking alcohol is a key component of social success” or that “the success of a social occasion depends on the presence or consumption of alcohol”. The ASA accepted that the reference to “Christmas” would be interpreted by consumers as a reference to the season and that consumers would interpret the claim as a play on words. In particular, the ASA noted that the women only had one drink together and they appeared to be enjoying each other’s company before reaching the bar and before any had been served Baileys.
The ASA therefore did not uphold the complaint. This adjudication follows a similar approach to that adopted in two different adjudications around Christmas last year. In the first the ASA upheld a complaint in relation to Belvedere vodka in December 2014, concluding that the text “There’s a night out. And there’s a night out.”, together with the images used, suggested that alcohol was inherent to a good night out. Whereas, in an adjudication in relation to an ad which featured the text “Without Warninks Advocaat it just wouldn’t be Christmas”, the ASA did not uphold the complaint on very similar grounds to this ruling, deciding that that the text simply referred to the fact that the product was traditionally associated with the Christmas period, rather than the reason for its success.
5. Freemans plc t/a Clearance365, 2 December 2015
Two saving claims on the Clearance365 website for a check jacket and mesh insert dress were as follows: “Was £99.00 Now £23.50 SAVE £75.50” and “Was £59.00 Now £14.50 SAVE £44.50” respectively. The web page for each product indicated that it was a Kaleidoscope product.
Complaint / Decision
The complainant challenged whether the saving claims, in particular the “was” prices, were misleading and could be substantiated. The ASA upheld the complaint.
Freemans plc explained the corporate structure of the FGH group of companies, highlighting that Freemans plc traded as Clearance365 amongst other names, and Grattan plc traded as Kaleidoscope amongst other names. They explained with reference to their pricing policy that the “was” price was the highest price at which the product had been offered for sale in the previous 12 months. They provided documents to show that the products were still on sale at the “was” prices on both the Freemans and Grattan websites and in their respective catalogues.
In considering the group structure of FGH, the ASA noted that the Clearance365 website included a navigational bar at the top of the page which allowed consumers to visit a number of sites, including Kaleidoscope but not Freemans or Grattan’s websites. They noted that consumers were likely to understand from the word “clearance” that the “was” prices on the Clearance365 website were prices the products were sold on the linked websites rather than the Clearance365 website. Considering the reference to Kaleidoscope products, the ASA further considered that consumers were likely to expect the “was” prices to be reflective of the usual selling prices on the Kaleidoscope website at the time the saving claims appeared. As Freemans had not provided the pricing history of the products, the ASA was unable to consider whether the savings claims represented genuine savings as they could not establish the usual selling prices. In any event, on this basis, the ASA upheld the complaint. The ASA understood that at the time the savings claims appeared, the Kaleidoscope website was selling the products with a “was” price of £79 for the check jacket and £49 for the mesh insert dress, both of which were lower than the “was” prices in the savings claims.
The ASA have continued with their strict approach when considering saving claims. Advertisers should ensure that they have in hand the pricing history of a product which can demonstrate that the “was” price is the genuine selling price of the product in question.
6. Co-operative Group Ltd t/a The Co-operative Food, 9 December 2015
A radio ad stated “Suns out, garden chair, drinks. In-laws, great, drinks. Cricket, wicket, drinks. At your local Co-op selected spirits are just £13 each. Little, often, Co-op. Participating stores, subject to availability. 70cl, ends 1st September. Please drink responsibly.”
The complainant challenged whether the ad was irresponsible for using the slogan “little, often, Co-op” when advertising alcohol products. The ASA also challenged whether the ad was irresponsible due to the repetition of “drinks” which could condone or encourage immoderate drinking. The ASA upheld the complaints.
Co-op noted that they often used their slogan “little, often, Co-op” in their ads to promote a variety of products but not the consumption of those products. They explained that the repetition of the word “drinks” was to demonstrate the various scenarios customers may purchase the featured product and that there was no intention to relate the word to the frequency of consumption. In any event, they noted that their ad did contain the statement “please drink responsibly”. Radiocentre were also asked to respond to the complaints and they explained that the majority of listeners would understand the slogan to mean how customers used Co-op for their shopping. Commenting on the repetition of “drinks”, Radiocentre explained that it was used for various situations with there being no suggestion that all the occasions took place in one day.
The ASA acknowledged that although many listeners may be familiar with the slogan and that it was not in itself problematic, the slogan would need to be considered in the context of the ad. They initially considered the repetition of the word “drinks” to be understood by listeners to refer to the consumption of alcohol. Nevertheless, they then considered that the combination of the three scenarios being voiced by the same person, the use of the slogan and the fact that the ad was for alcohol, the ad did condone and encourage immoderate drinking.
The ASA will generally take a strict approach in relation to regulated activities such as drinking. As had been discussed in previous snapshots, the wording of a claim will be considered in the context of the ad. Advertisers should consider the impact a slogan or repeated phrase may have when combined with the various features of the ad. Advertisers should also note that the ASA will not accept the use of disclaimer to solely negate any complaints made about an ad.
7. John Lewis Partnership plc, 30 December 2015
A saving claim for a Samsung Galaxy Tab S on John Lewis’ website stated “Special Offer – Save £30 (saving already applied to price) £319”.
Complaint / Decision
The complainant challenged whether the saving claim was misleading as they had previously seen the product advertised at £298. The ASA did not uphold the complaint.
John Lewis provided the pricing history of the product in question which showed the product had been sold at the higher price of £349 for a period of 201 days prior to the promotion starting. The product was sold at the promotional price of £319 for an initial 14 day period but was reduced to £298 for a period of three days as part of their “never knowingly undersold commitment”. The price reverted back to £319 for a period of 14 days.
The ASA accepted 201 days was a substantial period to demonstrate that the usual selling price of the product at the time the ad appeared was £349. The ASA considered the pricing history of the product along with the volume of sales noting that of a total period of 229 days, the product was sold at the usual selling price for 201 days, the promotional price for 11 days, the reduced price for three days and then reverted back to the promotional price for 14 days. The ASA concluded that the reduction for three days was not substantial enough to warrant the information to be included in the ad.
This adjudication and the Clearance365 adjudication above serve as useful reminders for advertisers to have in hand the pricing history of a product which is substantial enough to demonstrate the usual selling price and promotional selling price of the product in question. If the product has been sold at the reduced price for a longer period, similar to that of the promotional price, John Lewis would have been required to at the very least provide the information in the ad. It is therefore important for advertisers to always consider the BIS Pricing Practices Guide prior to making any savings claims and also to ensure that any “was” price reflects a genuine selling price for the product.
8. Geo24 UK Ltd t/a Booty Pirates, 9 December 2015
A gambling ad on Booty Pirates website stated “GOLDBEARD’S BOOTY PIRATES JOIN DA CREW & FIND YE FORTUNE”. The webpage also featured cartoon graphics of a pirate wearing sunglasses and a large gem-studded beard and a goat with gold teeth and a chain around its neck. A description of the game stated “Be a Gangsta’ Pirate Create and customise your own unique character. You need dat style to grab dat booty”. A further image consisting of cartoon characters on a grid demonstrated the gameplay.
Complaint / Decision
The complainant challenged whether the ad was in breach of Code as it was likely to be of particular appeal to those under 18 years old. The complaint was upheld.
Geo24 explained that the use of a cartoon or fantastical character did not necessarily mean there was a particular appeal to children. They created their graphics in an adult-like way so as to avoid appealing to children. They understood that previous adjudications had been upheld on grounds that superheroes or children’s toys had been used but they were of the view that pirates were not in the same category. Geo24 noted the association between gambling and pirates and treasure which often features in well-established casinos, slot games and slot halls. They explained that their theme had been created to appeal to their target audience of gamblers aged over 30. Geo24 further explained that their image of a pirate, unlike a typical cartoon pirate, contained muted colours and was dressed in work boots, jeans, and sunglasses and had an adult tattoo. They also noted that the use of a briefcase full of money, rather than a bejewelled treasure chest, and of a goat were not easily associated with pirates. Geo24 lastly explained that the use of the phrase “booty pirates” along with accompanying phrases were intended to be a play on words targeted at an adult audience. They noted that the ad also contained an 18+ logo and had an age gate mechanism requiring visitors to pass through security verification before they could access the game or any further content.
The ASA reiterated that the CAP Code made clear gambling ads must not “be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture.” By using cartoons or cartoon-like imagery, advertisers run the risk of their ads potentially appealing to children under the age of 18. In particular, the ASA did not accept that the type of clothing or the use of a briefcase would negate the appeal to children. They also noted that the style and colours used for the characters and gameplay were colourful and exaggerated enough to be associated with the style of children’s characters. The ASA explained that the use of the innuendo, “you need dat style to grab dat booty”, and other piratical phrases, such as “find ye fortune”, further demonstrated that a child would identify the character as a pirate. On this basis, the ASA upheld the complaint. This adjudication serves as a useful reminder for advertisers to ensure that ads involving regulated activities are targeted and only appeal to the appropriate market. Further, advertisers should remain cautious when using cartoon or cartoon-like images as they are likely to appeal to children.
HOLIDAYS AND TRAVEL
9. Heathrow Express Operating Company Ltd t/a Heathrow Express, 9 December 2015
The Heathrow Express website featured a rolling series of images along with the following text, “Trains depart every 15 minutes … *HEATHROW TERMINALS 2 AND 3 TO LONDON IN 15 MINUTES – EVERY 15 MINUTES” and “HEATHROW TO CENTRAL LONDON IN 15 MINUTES, EVERY 15 MINUTES”.
Complaint / Decision
The complainant challenged whether the ad was misleading as they understood that the frequency of trains late in the day reduced to one every 30 minutes. The ASA upheld the complaint.
Heathrow Express explained that due to Crossrail engineering works, there was a reduced service after 10pm between Monday and Thursday on an ongoing basis. However, only three trains in each direction had been cancelled, which equated to 2.2% of affected train services across the week. They explained that the changes to the service had been displayed on printed timetables at stations as well as on the timetable section on their website.
The ASA considered that consumers were likely to understand the claim to mean that Heathrow Express trains ran every 15 minutes throughout the whole day, without exception. However, the trains only operated on this basis between 5am and midnight. They considered the percentage reduction in service and the reasons for such reduction but noted that as this was occurring on a regular basis, the reduction in service should have been made clear to consumers as part of the claim itself. It was contradictory only to include this information in the timetable section on the website and on printed timetables.
It is unsurprising that the claim was found to be misleading considering the services did not run as advertised, 24 hours a day. It is important for advertisers to consider the consumers understanding of a claim and ensure any information which could vary the claim is made clear to the consumer and that it does not contradict the main headline claim. Advertisers should also remain cautious of any contradictory information surrounding their claim as this is likely to demonstrate that consumers are misled into believing what is true.
10. TTT Moneycorp Ltd t/a Moneycorp, 2 December 2015
A Moneycorp currency exchange leaflet stated, “Currency chart Find out what a property is worth with this currency chart”, accompanied by a table with two headings, “Amount of Euros” and “Amount in Pounds*”. The footnote stated “*indicative market rate of 1.3878 on 11/05/2015”. Further text at the bottom of the leaflet stated “Key benefits of using Moneycorp Bank-beating exchange rates Low transfer fees”.
Complaint / Decision
The complainant, Eris FX Ltd, challenged whether the ad was misleading as they understood the currency comparison to be unobtainable. They noted it was the wholesale interbank rate, which they believed was theoretical and exclusive of the advertiser’s fees. The ASA upheld the complaint.
Moneycorp explained that the ad was intended to be used as an informative tool for customers interesting in purchasing a property. They explained that the quoted currencies in the ad were based on an indicative rate that represented the exchange rates on 11 May 2015 with the ad used at the French Property Show on 15 and 16 May 2015. This was made clear to customers and included a qualification close to the exchange table. The rate was available to customers on 11 May although there were better rates available meaning customers may have received more euros than displayed in the ad. In line with this, Moneycorp noted that the indicative rate was not theoretical and unobtainable. They explained the mechanics of the interbank rate and how this would then apply to their customers. Moneycorp noted that they do not charge a commission for carrying out an exchange but they may charge customers a transfer fee which was dependant on the customer’s circumstances and the particular exchange. They further noted that customers are made aware when a transfer fee is payable but the ad also contained a reference to that effect. Moneycorp explained that due to receiving a live feed, the exchange rate would vary from customer to customer. They provided an anonymised sample of twenty transactions that occurred on 11 May all of which were at a rate between 1.3824 and 1.39.
The ASA considered that consumers were likely to understand the currency table in the ad as giving information about the likely value of their sterling currency in euros if exchanged by Moneycorp specifically. Although the use of an indicative rate, where clearly labelled, was not inherently problematic and consumers would understand that exchange rates fluctuated and that rates may vary according to their individual circumstances, the ASA considered that consumers would understand the ad to be based on rates that Moneycorp could offer them on the date stated. Although the ad stated “indicative market rate”, the ASA did not consider this to be sufficient to clarify that the table in the ad was a tool and not generally reflective of Moneycorp’s rates on the relevant date. The ASA noted that they had not been provided with further information on why this particular rate had been selected from those available on that date, nor had they seen evidence demonstrating that the indicative rate was a generally representative rate for that date. The ASA then considered whether the fees should be included in the rates and noted that, as the applicability of the rates varied and could not be calculated in advance, it was not necessary for them to be included in the advertised rate. However, the ASA explained the ad should make clear they were excluded and concluded that the reference simply to “low transfer fees” was not sufficient to communicate the variable nature of the fees or to whom they would apply.
In an interesting adjudication on financial services, the ASA reiterated the importance of communicating information in a clear and obvious way to consumers. As was seen here, Moneycorp should have either made it clear that the currency table in the ad was to be merely used as a tool or should have used indicative rates in the ad which were representative of the rates actually achieved by customers. Nonetheless, Moneycorp should have been able to demonstrate by way of adequate evidence that the indicative rate was generally representative of the rates received by customers on the specified date.
COMPUTERS AND TELECOMMUNICATIONS
11. 1&1 Internet Ltd, 2 December 2015
A webpage titled “Web Hosting” on 1&1 Internet’s website contained the following text, “1&1 Hosting NEW! MAXIMUM FLEXIBILITY FOR YOUR WEB PROJECTS … FREE domain for package lifetime and unlimited webspace, databases, traffic, email accounts…” The page also featured four web hosting packages, three of which were called “Unlimited”, “Unlimited Plus” and “Unlimited Pro”. The three packages also included “unlimited webspace” and “unlimited websites” with two of the packages also including “unlimited E-mail accounts” and “unlimited E-mail”.
Complaint / Decision
The complainants challenged whether the “unlimited” claims were misleading and could be substantiated as they had been told that a file limitation applied. The ASA upheld the complaint.
1&1 argued that “unlimited” was a widely used term in the web-hosting industry and that their packages did offer some “unlimited” features which were stated on their website. They did confirm that a file limitation applied but relied on the fact that it had been communicated in their terms and conditions which were always available on their website and always disclosed prior to a purchase. 1&1 explained that removing the file quota from the “unlimited” packages could cause system failures, fraudulent use of their system but also leave some customers feeling unfairly treated. 1&1 further noted that their ‘Acceptable Use Policy’, which could be found in their terms and conditions, made clear that customers would be configured with 50GB of web space. They explained that if a customer approached the limit, they would be given increments of 1GB at no extra cost, but this would be limited to once per day. They noted that this had now been increased to 20GB.
The ASA noted that the “Web Hosting” web page did not mention that the “unlimited” packages were subject to an ‘Acceptable Use Policy’ nor was their mention of the file quota. Contrary to 1&1’s response, the ASA understood that the file quota had not been disclosed in the terms and conditions. The ASA also explained that an ‘Acceptable Use Policy’ could be acceptable with the “unlimited” packages if the impact of such policy was moderate and in line with consumers’ understanding of an “unlimited” service. However, the ASA noted that the daily increment of 1GB was not sufficient for an “unlimited” claim.
The ASA considered the use of an “unlimited” claim and explained that consumers were likely to expect their access to a service, or features of a service, not prevented or restricted in a way that would impact unduly on their experience. Further, the ASA understood that once customers reached the file quota, they would not be able to upload additional files to their web space or create other websites even if they had data available.
This adjudication serves as a useful reminder that advertisers must consider how a consumer would interpret their claim, particularly in the computers and telecommunications industry whether through mobile phone, broadband or as in this case, web hosting plans, where “unlimited” claims can often be seen. As stated in the adjudication, “unlimited” claims may be acceptable where “provider-imposed limitations that affect the speed or usage of the service are moderate only and are clearly explained in the marketing communication.” Where an advertiser is relying on an acceptable use policy, this should always be made clear.
12. NCS Trust CIC, 9 December 2015
A radio ad for National Citizen Service stated, “Jade came home and was just so excited about it. Jumping off cliffs, getting in a canoe. Meeting new people from all over the country. NCS this, NCS that and she’s still going on about it now. NCS is open to all 15- to 17-year-olds. Limited places going fast. Search NCS.”
Complaint / Decision
The complainant challenged whether the reference to “jumping off cliffs” encouraged or condoned unsafe behaviour. The ASA did not uphold the complaint.
NCS explained that part of the four week government funded programme involved groups undertaking physical and safe adventures to take them out of their comfort zones and overcome fears. They noted that the activity mentioned in the ad was coasteering which involved coastal exploration and included jumping of cliffs whilst wearing safety equipment and under supervision by specialists. Nonetheless, they explained that the context of their ad, which involved a parent talking about their child, communicated that the activity was safe. Radiocenter also noted the context of the ad and explained that the ad was aimed at parents rather than young children.
The ASA considered that the context of the ad was clear in communicating that the activities would have taken place with professional expertise and safety. They agreed that the ad was aimed at parents rather than young children. The ASA considered the act of “tombstoning” and the associated risks, but concluded that the reference to “jumping of cliffs” would not be interpreted to condone that act.
The ASA takes a strict approach when considering ads involving children and is always careful where there may be a risk of emulation or where they include material that may condone or encourage behaviour that prejudices health or safety. Advertisers should consider what impact the overall context and tone of the ad has to consumers and whether this would encourage or condone unsafe behaviour. In particular, advertisers should consider who the ad is targeted towards and ensure a clear message is communicated, removing any ambiguity as to whether there is an element of unsafe behaviour.