This summary provides a selection of the most interesting ASA adjudications in February, highlighting the key issues considered in those adjudications. The ASA considered two complaints relating to the suitability of in-app adverts that appeared in apps marketed at, or likely to be used by, children (Weetabix and Paramount Pictures). Adverts published by two separate mobile phone network providers (Vodafone and Shebang) were criticised for not clarifying prices sufficiently and the ASA also considered whether a competition prize described as VIP was misleading (Red Bull). There were several complaints again relating to the placement of adverts containing alleged sexual content (H&M, Harvey Nichols and Chanel) and whilst last month saw a significant number of complaints that Asda’s Christmas advertising campaign reinforced outdated stereotypes, this month it was the turn of supermarket rival Morrisons to face similar complaints.
February also saw the introduction of two pricing rule changes by CAP and BCAP to the UK Advertising Codes. The first change relates to price comparisons, where the requirement for advertisers only to compare identical or substantially similar products has been removed. This will allow advertisers to compare products that are not identical but meet the same need or intended purpose, provided the basis for the comparison is made clear. The second change relates to VAT-exclusive price claims and the recent amendments allow advertisers to make VAT-exclusive price claims provided the claims are addressed only to those that do not pay VAT or can recover it. Read CAP’s full regulatory statement on the changes here.
- Kimberly-Clark Ltd and Tesco Stores, 6 February 2013 (the ASA rules on whether a promotion offering a free gift with every shop was misleading)
- CS Lounge Suites Ltd trading as CSL Sofas, 13 February 2013 (DFS challenges to the legitimacy of CSL Sofas’ claim to be the UK’s largest dedicated sofa specialist)
- Wm Morrison Supermarkets (the ASA considers complaints made about three different Morrisons adverts. The first featured a dog being fed Christmas pudding; the second featuring a woman disappearing into a large tin of Quality Street; and the third portraying a mother undertaking Christmas preparations)
COMPUTERS AND TELECOMS
- Paramount Pictures UK, 6 February 2013 (complaints were made that an advert for horror film Paranormal Activity 4 appeared in apps likely to be used by children)
- Phones 4 U Ltd, 6 February 2013 (chief competitor The Carphone Warehouse challenged an advert for not showing the upfront handset cost prominently enough)
- Vodafone Ltd, 6 February 2013 (a member of the public complained that monthly price tariffs were advertised as fixed for the duration of the contract but were in fact subject to change)
- Weetabix Ltd, 6 February 2013 (the Family and Parenting Institute complained that the WeetaKid app exploited the vulnerability of children to encourage them to buy a particular product; the complaint also related to online advergames on the Nickelodeon website)
- Shebang Technologies Group Ltd, 20 February 2013 (the ASA considers whether a promotion offering a free mobile handset was misleading by asking the customer to pay a deposit)
- H&M Hennes & Mauritz UK Ltd, 27 February 2013 (the ASA considers whether posters advertising a lingerie collection were offensive and unsuitable for public display)
FOOD & DRINK
- Yoplait UK Ltd, 27 February 2013 (complaints were made that an advert for a yoghurt gave the impression that it would make bones stronger and reduce the risk of weak or damaged bones)
HEALTH & BEAUTY
- BEP Technology Ltd trading as Original Earthing, 6 February (the ASA rules on whether it was appropriate for an advert for a natural health product to provide contact details for a “Dr” who was not medically qualified)
- Chanel Ltd, 13 February 2013 (complaints were made that a fragrance ad featuring Keira Knightly was aired during children’s film Ice Age 2)
- Harvey Nichols Group Ltd, 27 February 2013 (the ASA rules on whether a poster of a woman about to kiss her refection was offensive and irresponsibly displayed where it would be seen by children)
- UNISON, 27 February 2013 (the ASA considers the validity of a claim suggesting that the outsourcing of hospital cleaning was linked to an increase in hospital infections)
- Admiral Insurance Services Ltd, 13 February 2013 (a viewer who had been unable to insure his Land Rover with Admiral complained that an ad for the insurer featured a cartoon jeep)
- American Express Services Europe Limited, 20 February 2013 (an American Express customer complained that an advert for the credit card provider that stated it had personally delivered cards exaggerated its level of service)
- Red Bull Company Ltd, 27 February 2013 (a prize winner complains that the VIP trip to the Belgium Grand Prix that he won in a competition was not VIP enough)
1. Kimberly-Clark Ltd and Tesco Stores, 6 February 2013
A promotion on Andrex packaging featured the wording “free gift with every shop” but one of the conditions to the offer was that the gift could only be redeemed at the time of the customer’s next Tesco shop.
Complaint / Decision
The complainant challenged whether the wording “free gift with every shop” was misleading as customers were required to make a further purchase in order to receive some/all of the advertised gifts.
The complaint was upheld. Tesco and Kimberly-Clark both stated that they had intended to offer an automatic credit of Clubcard points (being one of the gifts offered) to the customer at the point of original sale but, after the promotional materials had been printed, Tesco had encountered system problems which prevented them from crediting the customer with Clubcard points at the point of sale as planned. Kimberly-Clark stated that it would not have been economically feasible to have withdrawn the offer in its entirety and Tesco explained that its solution had been to provide a coupon that could be redeemed upon a subsequent purchase. Both parties added that their respective websites had been updated to reflect accurately the offer conditions.
The ASA acknowledged the reasoning for the change and that the conditions of the offer had been accurately updated online, but took the view that these steps had not been sufficient to avoid causing unnecessary disappointment to customers. It expressed particular concern that consumers were required to make an additional purchase from a limited range of products in order to benefit from the advertised offer and also expressed concern that the amended terms had not been made clear to consumers in store.
This example illustrates the importance placed by the ASA on not misleading consumers even when promotions go wrong through no direct fault on the part of the promoters. Promotions do, unfortunately, go wrong but even when this happens the promoters must still take all possible steps in order to correct the error and ensure that customers are not misled.
2. CS Lounge Suites Ltd trading as CSL Sofas, 13 February 2013
CSL Sofas ran a TV ad and a press ad, both of which claimed that CSL Sofas was “the UK’s largest dedicated sofa specialist.”
Complaint / Decision
DFS challenged whether CSL’s claim that it was “the UK’s largest dedicated sofa specialist” was misleading and could be substantiated.
The complaint was upheld. CSL stated that the claim was based on the fact that there were no other companies of its size that specialised in only sofas. It stated that most of its competitors of a similar size sold a wide range of other furniture. CSL relied on an independent report by Plimsoll, which listed retailers in the furniture sector by turnover. In the report CSL was listed 14th but was the only retailer in the top 14 to be described by the report as a dedicated sofa specialist. Clearcast said that the approval of the claim had been based on the Plimsoll report, which it described as definitive. Clearcast stated that it was also clear from the ad that the claim related only to dedicated sofa specialists.
The ASA disagreed because, whilst noting that CSL had, on its website and in its TV and press ad, held itself out to “only do sofas”, the ASA understood that CSL’s individual stores in fact also sold other furniture. It therefore took the view that CSL had failed to demonstrate that it was a dedicated sofa specialist as its ads claimed. The ASA pointed out that CSL had failed to provide robust evidence comparing it with other companies in the UK that only sold sofas as the Plimsoll report has compared furniture retailers in general and not only sofa retailers.
Despite relying on an independent report backing up its claim and having Clearcast approval, the ASA still upheld DFS’s complaint against CSL. Of course Clearcast approval is no guarantee that a complaint will be dismissed. The ASA always looks very closely at “number one” type claims. Here the evidence CSL had was not sufficiently robust. Supporting documentation must always back up specific claims being made.
3. Wm Morrison Supermarkets
Morrisons was subject to three separate complaints in February 2013.
First Complaint/Decision, 13 February 2013
The first complaint related to a TV advert in which a boy, after looking at it disdainfully, passed his portion of Christmas pudding to a dog. The dog then whimpered and dropped the pudding into a plant pot, following which the plant wilted. 234 people complained about the ad on the basis that it was irresponsible as it implied that it was acceptable to feed dogs Christmas pudding, which contained ingredients that were potentially lethal to dogs.
Morrisons said that the ad was intended to light-heartedly reflect the fact that not everyone liked Christmas pudding and would never condone or encourage anyone to feed Christmas pudding to a dog. It stated that a vet had been present during the filming of the ad and referred to advice it had received form the Veterinary Poisons Information Centre, which stated that there was only a minimal risk of any toxic reaction in a dog if it were fed a small amount of Christmas pudding. Clearcast agreed and stated that the ad did not condone feeding Christmas pudding to dogs.
The ASA did not uphold the complaint and referred to the surreptitious manner in which the boy had fed the dog, which it said indicated that the boy was doing something that he knew he was not supposed to. It suggested that dog owners would be aware that they should not feed their dogs food not part of a standard canine diet and that it was for parents to educate their children in that respect. Adverts featuring animals are always likely to attract complaints. However, the ASA can often take a sensible and more measured approach when dealing with these sorts of complaints.
Second Complaint/Decision, 13 February 2013
The second complaint related to a TV ad that featured a woman disappearing into a tin of Quality Street. 7 viewers complained on the basis that the ad was misleading as to the size of the Quality Street tin.
Morrisons said that the advert had been part of a series of ads that shared a common ‘day dream’ fantasy theme. It stated that the scene depicting a woman disappearing into a virtual sweet tin was pure fantasy. Clearcast said it had cleared the ad as it felt that people would be unlikely to believe that a person could actually be sucked into a sweet tin.
The ASA dismissed the complaint on the basis that the ad did not make any claim as to the weight of the product and was therefore not misleading.
Third Complaint/Decision, 27 February 2013
The third complaint related to a TV ad that showed a woman undertaking the stress of making various preparations for Christmas, including writing Christmas cards and preparing a Christmas dinner etc. Complaints were recovered from 26 viewers that the ad was offensive and sexist as it reinforced the outdated stereotypes of men and women’s roles at home.
Morrisons said that the ad was intended to portray real-life experiences in a gentle, thought-provoking and light-hearted manner. It said that it had commissioned focus groups, which provided a strong message that many working mums were still bearing the brunt of Christmas preparations. Morrisons also stated that it did not believe the ad encouraged discriminatory behaviour or treatment.
The ASA did not uphold these complaints and referred to the fact that Morrison’s had carried out research into the subject. It suggested that viewers were encouraged to think about the enormity of the task faced by many mums at that time of year. The ASA added that, whilst some viewers might find the portrayal distasteful, the ad did not imply that it represented every family’s existence. The ASA therefore took the view that it was not likely the ad would be seen as enforcing negative stereotypes.
As was the case with similar complaints in January 2013 in relation to Asda’s Christmas advertising campaign, these adverts received the highest number of complaints of any of the adjudications this month by a substantial margin, yet the complaints were not upheld.
COMPUTERS AND TELECOMS
4. Paramount Pictures UK, 6 February 2013
In-game adverts in “Angry Birds” and “Draw Something” for the film Paranormal Activity 4 featured a person being dragged across a room by an invisible force and a woman talking to a friend online as a shadowy figure appeared behind her.
Complaint / Decision
Complaints were made by three people on the basis that the games were likely to be played by children and that the adverts were irresponsible as they were likely to cause fear or distress to children.
The complaint was upheld, although by the time the ASA heard this complaint the adverts had already been removed by the respective owners of each app following comments that had been made in online fora in relation to the ad’s suitability. Paramount stated that it had instructed its media agency in good faith to purchase advertising space aimed at 15-24-year-olds and Paramount added that the owners of the apps in question had not raised any concerns about the ad being inappropriate for their audiences. Both Zynga Inc., the owner of Draw Something, and Rovio Entertainment, the owner of Angry Birds, had promptly discontinued the ad after receiving feedback from their respective gamer communities which indicated that the ad may have been inappropriate for younger players.
Both Zynga and Rovio used advertising partners to source such in-app adverts and both stated that they adhered to strict advertising guidelines. Zynga apologised to any customers upset or offended by the incident. Rovio said that Millenial Media, its advertising provider, had breached its advertising guidelines and Millenial Media apologised for the incident, which it said had been caused by human error. Whilst finding that errors had been made in placing the ad, the ASA welcomed the manner in which both Zynga and Rovio had resolved the incident.
This shows that even where a complaint is upheld, a speedy response to complaints can mitigate the impact of an adverse adjudication.
5. Phones 4 U Ltd, 6 February 2013
A Phones 4 U advert stated that a particular handset was “only £26 per month!*”, with the small print at the bottom of the ad including the upfront handset price of £49.
Complaint / Decision
The Carphone Warehouse complained that the price of the handset was not sufficiently prominent and therefore challenged whether the ad was misleading.
Phones 4 U suggested that the average consumer would realise that there would be an initial upfront price for the handset and pointed out that the handset in question had previously been selling at a price of £149. Phones 4 U further suggested that the asterisk was sufficiently prominent to draw attention to the terms and conditions and the ad therefore did not imply that the handset was free.
The ASA upheld the complaint and pointed out that some mobile phone packages do not include an initial price for the handset. It took the view that the focus of the ad was on the particular handset and, when this was considered alongside the headline advertised price of “only £26 per month”, it ruled that the initial handset cost should have appeared immediately following the monthly price.
Advertisers must take care when determining what pricing information should appear as part of the ad headline and what can legitimately be included in the small print. This decision demonstrates that the small print on an advert must only qualify a headline claim, not change its meaning.
6. Vodafone Ltd, 6 February 2013
A claim on the Vodafone website stated “get a SIM only plan from just £10.50 a month.”
Complaint / Decision
The complainant believed that the price could be increased during the contract term and challenged whether the price claim was misleading.
The complaint was upheld and Vodafone were told to qualify the price quoted to make it clear that it could be increased during the course of the contract. Vodafone argued that the monthly charges were clearly stated on its website and therefore did not require qualification. It relied on the fact that its Airtime Agreements made it clear that it had the right to increase the line rental in line with any increase in Retail Price Index by giving customers 14 days’ notice. It further relied on the fact that such line rental increases were common across the telecommunications industry. Vodafone highlighted that full details of price plans could be viewed by customers clicking the “plan details” link and suggested that qualifying the price on the original page would result in key information losing its prominence.
The ASA took the view, however, that without any price qualification, customers would be likely to take the view that the advertised price would apply for the duration of the contract. It suggested that the price was a significant condition for consumers when deciding on a mobile phone contract and it should therefore have been clearly stated without the need to click through to further web pages.
This decision shows that the ASA tends to adopt a fairly strict approach to pricing complaints particularly where packages are involved in the telecoms / broadband adverts.
7. Weetabix Ltd, 13 February 2013
In the WeetaKid app players controlled the WeetaKid character and were prompted to make their character “eat” Weetabix for extra energy by scanning a QR code on a Weetabix pack. If the user did not have access to a Weetabix box to scan the QR code in-app messages such as “No Weetabix? Disaster! Don’t make things harder for yourself!” appeared.
The Weetos and Nickelodeon websites between them contained 14 advergames that targeted children and featured various Weetabix/Weetos products.
Professor Agnes Nairn and the Family and Parenting Institute complained on four grounds:
i) The WeetaKid app exploited the vulnerability of children by making them feel inferior or unpopular for not buying a product.
Weetabix said that the WeetaKid app had been designed so that it could be played without purchasing the product. It also suggested that game users disassociated what happened in games from the real world and argued that children would not associate the WeetaKid’s consumption of Weetabix in the game with their own consumption of the product. The ASA upheld this part of the complaint and disagreed that the app remained wholly fantastical because the user had to scan a QR code on a Weetabix pack in order to make their in-app character “eat” Weetabix. The ASA also held that the language of the prompts could cause children to understand that they were failing if they did not eat Weetabix and concluded that the app therefore exploited children’s credulity and vulnerability.
ii) The WeetaKid app included a direct exhortation to children to buy an advertised product.
Weetabix stated that the game mentioned Weetabix but pointed out that having a Weetabix box was not a prerequisite for playing the game. It further argued that the app did not require players to purchase packs of Weetabix. The ASA did not uphold this part of the complaint and, whilst acknowledging that some in-app messages referred to Weetabix, took the view that the messages did not exhort users to purchase Weetabix.
iii) The advergames on the Weetos and Nickelodeon websites were obviously identifiable as marketing communications.
Weetabix stated that the logos of the relevant Weetabix brands were prominently displayed on both websites; the games featured its products and there were also prominent links to TV ads for the products. It suggested it was clear that the games were Weetabix marketing communications. The ASA did not uphold this part of the complaint. In relation to a Weetos advergame, the ASA considered that references to the Weetos brand in combination with the Weetabix company name made it sufficiently obvious that it was a marketing communication from Weetabix. In relation to the advergames on the Nickelodeon website, the ASA referred to the fact that the games featured on part of the website called “Weetabix World” and that the Weetabix branding on that part of the website was much more prominent than the Nickelodeon logo. The ASA took the view that, due to the prominence of the relevant Weetabix branding, the games were clearly identifiable as marketing communications from Weetabix.
iv) The Weetos games advertised Weetos Bars, which would be classed as a product high in fat, salt or sugar (HFSS) and therefore condoned or encouraged poor nutritional habits or unhealthy lifestyles in children.
Weetabix pointed out that the only Weetos product shown in any of the games was Weetos cereal, which was not an HFSS product. Weetabix stated that Weetos Bars did not feature in any of the games and was not advertised by association. The ASA accepted this and took the view that the games did not advertise Weetos Bars by association. Whilst the ASA accepted that none of the games featured Weetos Bars, it did consider that the product was referred to in ads on the Nickelodeon website, but took the view that the ads did not condone or encourage poor nutritional habits or unhealthy lifestyles in children because the bars were referred to as a “treat”.
This is the second significant adjudication relating to Weetabix in as many months, having been subject to complaints in January 2013 that its adverts for cereal Weetos promoted poor nutritional habits and an unhealthy lifestyle in children. Similar complaints this month were again not upheld, but it is perhaps not surprising that complaints in relation to the cereal company’s WeetaKid app were upheld. Advertisers must take care not to include anything in their advertisements that might risk invoking feelings of inferiority or being unpopular in children as it may be found to exploit their inexperience and vulnerability. We are also seeing a significant increase in complaints relating to advergames targeting children, so advertisers should take particular care to adhere to the CAP code in any advergames.
8. Shebang Technologies Group Ltd, 20 February 2013
An advert on its website and in emails for Shebang, a mobile phone network, made various claims including “Shebang guarantees a FREE mobile phone to every single customer that applies, even if you have poor credit history”. The ad stated that individuals with average or low credit ratings would not be able to claim a free handset until they paid a deposit or until their bill payments had reached a level that qualified their handset to be released.
The complainant challenged whether the use of the word “free”, firstly in the email ad and secondly on the website, was misleading.
Shebang claimed that it offered all customers a Nokia C2-01 handset for free on a 24-month contract but added that it could not guarantee the handset from the point of connection and that the amount of time was dependant on the customer’s credit rating. Shebang maintained that the qualifications to the offer were clearly set out in their terms and conditions which consumers could easily locate.
The ASA upheld the complaint in relation to the email advert. It pointed out that there were a number of conditions to the claim “100% Guaranteed FREE pay monthly handset” but that it appeared unqualified as customers had to click through to the website in order to read the terms and conditions. The ASA also considered the email ad misleading as the phrase “Shebang Network 100% guarantees a FREE mobile phone to every single customer that applies…Check out some of our most popular phones or view out full range” suggested that a range of handsets were available for free when in fact only one handset was. The ASA took the view that it was misleading for Shebang to describe a phone as “free” if a customer was required to pay a deposit in order to secure it.
The ASA also upheld the complaint in relation to the website. Whilst acknowledging that there was some qualifying text on the website, the ASA found that the phrase “If your credit check is high enough you will be able to choose from any of the packages available, including a huge range of handsets” suggested that the offer of a free handset extended to a number of handsets and was not clarified sufficiently by the supporting text. As in relation to the email ad, the ASA found the claim “100% Guaranteed FREE pay monthly handset” was not sufficiently qualified and the handset could not legitimately be described as free.
Particular care must always be taken when referring to the word “free” in any advert. The ASA always reviews these issues very carefully. Moreover, of course, advertising something as being “free” where the consumer has to pay more than the unavoidable cost of responding to the practice is also a breach of the Consumer Protection from Unfair Trading Regulations, and one of the 31 always unfair practices.
9. H&M Hennes & Mauritz UK Ltd, 27 February 2013
In advertising a lingerie collection, H&M issued seven posters featuring a model wearing a push-up bra and other lingerie items.
Complaints were made by forty seven people on the basis that the posters were (i) offensive and demeaning to women; and (ii) unsuitable for public display where they could be seen by children.
Neither of the complaints was upheld by the ASA. H&M argued that the model in the campaign, Laetitia Casta, presented the collection in a self-confident manner that could be seen as flirtatious and sensual, but was not intended to be sexy or provocative. H&M added that they had placed the posters in locations relevant to their core audience, namely women aged 18-39, and had instructed media owners not to place the posters within 100m of schools. JCDecaux said that it had not received any complaints about the posters.
The ASA found that, in relation to six of the seven posters, the images were sensual rather than sexual and, whilst it acknowledged that some customers might find them distasteful, they were unlikely to be seen as offensive or demeaning to women. The ASA also ruled that a placement restriction was unnecessary in relation to these six posters. The ASA considered the seventh poster to be sexually suggestive but not explicit or overtly sexual and it therefore required no further placement restriction.
This decision shows that, although the ASA is focusing on the need to protect children from sexual imagery in posters, provided that the imagery is neither overtly sexual nor suggestive, complaints are unlikely to be upheld. The ASA made three similarly decided rulings in January 2013, the most relevant of which was a very similar adjudication in relation to M&S’s ad campaign for a lingerie collection designed and modelled by actress Rosie Huntington-Whitely.
FOOD & DRINK
10. Yoplait UK Ltd, 27 February 2013
A TV ad for a Yoplait yoghurt, Calin+, which featured a young woman telling the story of how her mother had had a bad fall that had left her “stuck at home for months”, suggested that the yoghurt’s vitamin D content, not just calcium, was important “for strong bones”.
The ASA upheld a complaint by three viewers’ that the advert misleadingly suggested that the yoghurt would make bones stronger and reduce the risk of weak or damaged bones.
Yoplait claimed that the aim of the advert had been to raise awareness of the importance of vitamin D’s role in bone health and to promote it as a good eating habit. It stated that Calin+ was never directly associated to any claim, which related to the ingredients calcium and vitamin D rather than the Yoplait product. Yoplait referred to two European Food Safety Authority (EFSA) positive opinions on the effects of both calcium and vitamin D on bone health, the meaning of which Yoplait claimed it had recreated in its advert. Clearcast stated that it had consulted its nutritionist consultant for advice who had confirmed the accepted link between vitamin D and normal bone health.
The ASA found that Yoplait’s claims in relation to the health benefits of calcium and vitamin D were consistent with the EFSA opinions and were not misleading. The ASA went on, however, to suggest that the context of the claim, i.e. in relation to the woman’s mother who was “stuck at home for months”, implied that the mother had suffered a bone fracture and that the overall impression created was that vitamin D, in addition to calcium, could reduce the risk of suffering a bone fracture. Whilst Yoplait denied having made a reduction of disease-risk (RDR) claim, the ASA disagreed and found that, as no such RDR claim in relation to calcium and vitamin D had been authorised by the European Commission, the ad had breached the BCAP Code.
This complaint serves as a reminder of RDR and other nutrition and health claims, which may only be used in advertising if they have been authorised by the EFSA. This also follows amendments to the CAP and BCAP Rules in December 2012 designed to maintain the congruity between the Advertising Codes and the European framework established in Regulation (EC) 1924/2006 on nutrition and health claims made on foods. These changes were introduced in response to the coming into force of the European Commission’s EU Register of authorised nutrition and health claims. Read our summary of the recommendations for general principles about the flexibility of wording for health claims here.
HEALTH & BEAUTY
11. BEP Technology Ltd trading as Original Earthing, 6 February 2013
A magazine advert that made various claims about the benefits of a natural health product gave contact details for a “Dr John Kelsey PhD, ND”.
The complainant, whilst challenging whether the claims as to the efficacy of the product could be substantiated, also challenged the use of the title “Dr” in “Dr John Kelsey PhD, ND” because the complainant believed that he did not hold a general medical qualification.
BEP claimed that the statements made as to the benefits of the product were non-medical, being concerned with optimising health rather than the treating of disease. BEP admitted that anyone that checked the General Medical council website would find that John Kesley did not hold a general medical qualification but reiterated that it was not offering a medical service. BEC argued that there was no potential to mislead readers as the title of “Dr” referred to those who held a doctoral research qualification, e.g. a PhD, rather than just to those with medical qualifications.
The ASA upheld the complaint in relation to the benefits of the products and stated that any claims as to the products’ benefits remained unproven. The ASA also upheld the complaint in relation to “Dr John Kelsey” and took the view that, as the ad concerned health issues, readers would be likely to read the title “Dr” in a medical context and would therefore be misled by it.
12. Chanel Ltd, 13 February 2013
A TV advert for one of Chanel’s fragrances, Coco Mademoiselle, featured the actress Keira Knightly being photographed on a bed. In one scene the photographer unzipped her clothes; she then undressed herself revealing her shoulders and part of her back. She was also shown crawling towards the photographer dressed only in a bed sheet. Clearcast had imposed no scheduling restriction on the ad.
The ad was screened during the film Ice Age 2 and the complainant, who believed the ad was overtly sexual, challenged whether it was suitable to be broadcast during a film that appealed to children.
Chanel stated that the character in the advert had been intended to reflect the spirit of Coco Chanel as a strong, independent woman. Chanel suggested that Ice Age 2 also had appeal to adults due to its sharp humour and ensemble cast. Chanel stated that there was no nudity in the ad and argued that none was implied as only the actress’ shoulders were revealed as part of a photo shoot. It argued that a degree of sexual charge was common in perfume ads and, whilst admitting that the character was playful and sensual, argued that she was not overtly sexual. Clearcast suggested that the sexual frisson was more akin to flirtation and there was no kissing or fondling. It also suggested that because the ad featured a well-known actress it made the ad seem more staged and filmic rather than raunchy.
The ASA disagreed and upheld the complaint. Whilst acknowledging that the scene was in the context of a photo shoot, took the view that it was nevertheless sexually suggestive due to the sexual tension between the two characters and therefore unsuitable for young children.
Despite the advert only receiving one complaint, this decision by the ASA received a significant amount of media attention, describing the advert as “too sexy” for children’s television. This demonstrates the strict approach the ASA can take in relation to protecting children from sexual imagery, not only in posters.
13. Harvey Nichols Group Ltd, 27 February 2013
Three posters promoting a new beauty section in Harvey Nichols featured a woman about to kiss her mirror image and the text on the poster read “love thyself”.
Seventeen people complained about the posters, challenging whether the ads were offensive or irresponsible for (i) appearing to portray a lesbian kiss or (ii) being sexually explicit whilst being on display where they might be seen by children. Complaints also challenged whether the phrase “love thyself” in connection with the image was offensive on religious grounds.
None of the complaints was upheld by the ASA. Harvey Nichols suggested that it was obvious from the appearance and from the wording “love thyself” that it was not a lesbian kiss but a woman about to kiss her own reflection. Harvey Nichols argued that, in any event, a lesbian kiss was not offensive and suggested that the advertising industry should promote equalities set out in anti-discrimination laws. The ASA agreed, whilst taking the view that it was sufficiently clear that the image depicted a woman about to kiss her mirror image. The ASA also found any reference to homosexuality as unlikely in itself to cause offence or constitute irresponsible advertising. Harvey Nichols argued that an image of the same person or two people about to kiss should not be regarded as sexually explicit and the ASA also agreed with this view.
In relation to the phrase “love thyself” Harvey Nichols stated that Old English had been used because it was more assertive and resonant than Modern English - the department store denied that there was any religious reference. The ASA, whilst noting a vague similarity to the bible verse “love thy neighbour as thyself”, found the phrase “love thyself” not to be strongly linked with the most central tenets of Christianity and not exclusively associated with Christianity.
14. UNISON, 27 February 2013
A national press ad for UNISON criticising increased involvement of private firms in public services stated “And where hospital cleaning had been outsourced, we have seen jobs cut and a rise in hospital infections.”
The complainant challenged whether the quote was misleading and could be substantiated.
UNISON argued that, because the ad had been paid for by its General Political Fund, which it used to fund its political campaigning work (of which advertising was a part), the ad did not fall within the remit of the CAP Code or the ASA. UNISON stated that it did not claim that the outsourcing of cleaning services was the sole cause of a rise in infection rates. It referred to the introduction of comprehensive infection rate monitoring which, UNISON pointed out, had coincided with the introduction of competitive tendering for hospital cleaning services in the early 2000s. UNISON further relied on additional government reports and, in particular, an NHS Freedom of Information request that identified that 75% of the worst cleaning services were outsourced. UNISON suggested there was a “large degree” of political consensus about falling cleaning standards as a result of contracting out.
The ASA disagreed with UNISON’s view that the ad was outside the scope of the CAP Code because it deemed that the ad’s principal function was not to influence voters in an election and it upheld the complaint. The ASA stated that the documents on which UNISON sought to rely, whilst demonstrating concern for the quality of cleaning in hospitals, did not compare infection rates between hospitals that contracted out cleaning services and hospitals that did not. The ASA took the view that the ad suggested a direct link between the outsourcing of cleaning services and an increase in hospital infections but concluded that cleaning services was only one variable that influenced infection rates. The ASA suggested that consumers would assume that the claim was current and criticised the age of the data relied on by UNISON as official statistics actually showed a decrease in hospital infections over the past reporting year.
15. Admiral Insurance Services Ltd, 13 February 2013
An Admiral TV ad for multi-car insurance featured three cartoon cars, one of which appeared to be an army jeep.
Complaint / Decision
The complainant, who had been unable to insure his Land Rover with Admiral because it had not been classed by the insurer as a “car”, challenged whether the depiction of the jeep in the ad was misleading.
Admiral took the view that the cartoon vehicle that featured in the ad was representative of a generic four-wheel drive and claimed that it insured a substantial amount of four-wheel drives including an extensive range of Land Rovers and Jeeps. Clearcast stated that it did not believe the ad to be misleading because Admiral had claimed to insure an extensive range of Land Rovers and Jeeps.
The ASA took the view that viewers would be likely to understand from the ad that four-wheel drives could be covered by the multi-car policy being advertised. The ASA noted that it had received a spreadsheet from Admiral listing various Land Rover and Jeep models that it claimed its insurance covered, but the ASA stated that it had not received any documentary evidence demonstrating that four-wheel drives were covered by the policy in question and therefore upheld the complaint.
This decision is reminiscent of the ASA’s decision in April 2009 to uphold complaints made against Swiftcover, another insurance company, for featuring musician Iggy Pop in its advertising campaign despite its website stating that those who worked in entertainment did not qualify for Swiftcover’s car insurance policies. These two decisions highlight that insurers risk the ASA finding their adverts to be misleading if they feature anything or anyone potentially not covered by the policy being advertised.
16. American Express Services Europe Limited, 20 February 2013
A TV ad for American Express stated “we go above and beyond to make the impossible possible 24/7. We’ve personally delivered replacement cards…”
Complaint / Decision
The complainant, a customer of American Express, challenged the “We’ve personally delivered replacement cards” claim as an exaggeration and misleading as he had been told by American Express that a replacement could not be delivered to him when his credit card had been stolen in Spain.
This complaint was not upheld. American Express stated that the ad conveyed the principal message that it provided a high level of service and a range of examples (supported by American Express employees) had been used to demonstrate that. American Express added that the ad had not claimed that it would, in every circumstance, personally deliver replacement cards to customers wherever they were in the world. It added that, by its internal service standards, its UK emergency cards replacement team dispatched replacement cards within the requisite timeframe 100% of the time and, in 2012, it had not received many complaints relating to the delivery time for replacement cards. American Express could not explain why the complainant had been told that a replacement card could not be delivered to him in Spain and suggested that the individual customer service representative involved was to blame. Clearcast interpreted the ad to demonstrate occasions on which American Express had gone beyond what was contractually required of them, but was not reflective of the service provided in every case.
The ASA suggested that viewers of the ad would interpret “we go above and beyond” to demonstrate a high level of service and “We’ve personally delivered replacement cards” to mean that there had been an occasion on which American Express had hand delivered cards. It took the view that viewers would infer that American Express customers received a high level of customer service when requesting replacement cards rather than getting the impression that replacement cards were delivered personally on every occasion. The ASA also referred to American Express’ dedicated Emergency Card Replacement team and to the fact that the personal card delivery example given in the advert had been genuine. Although not a surprising outcome, the ASA’s interpretation that “We’ve personally delivered replacement cards” meant that there had been an occasion on which American Express had hand delivered cards is possibly somewhat generous. However, in fact, it appears that American Express were able to demonstrate that replacement cards were delivered more often.
17. Red Bull Company Ltd, 27 February 2013
An online prize promotion run by Red Bull offered the winner a “VIP trip” to the Belgian Grand Prix. The prize included two tickets to “watch the action”, flights and two nights’ accommodation in a four star hotel.
Complaint / Decision
The prize winner challenged whether the competition had been administered properly and also whether the description of the prize as “VIP” was misleading. He relied on the late notice that he was given of having won the prize; having to share a bed with his brother in the provided accommodation; the airport, hotel and event being in three different countries; having to take their suitcases to the event; and having to leave the event early due to the timing of the return flight.
Both elements of this complaint were upheld. Red Bull apologised for the mix up with the hotel rooms and added that it had offered to pay the complainant’s expenses once it had learned that the complainant had to leave the event early to catch the return flight. Red Bull stated that it could not have foreseen the problem with the complainant’s luggage. Red Bull claimed that the reference to “VIP” was in relation to the event itself. It argued that Formula 1 was one of the most exclusive sports in the world and that the Belgium Grand Prix was one of the most prestigious races on the calendar.
The ASA took the view that Red Bull had not made it clear that the prize winner would have to organise his/her own travel from the airport in Cologne to the hotel, which had been in the Netherlands. It also deemed the different locations of the airport, hotel and event venue as significant information that was likely to influence consumers’ understanding of the promotion but Red Bull had excluded it from the promotion. The ASA considered that the use of the phrase “VIP” implied that the entire trip would be VIP. The ASA referred to the fact that the flights were with a budget airline and that the complainants’ grandstand tickets had not included admission to a VIP area, which readers of the promotion would have been likely to expect to be included.
This adjudication follows the recent decision in the case of Purely Creative and Others v. Office of Fair Trading, in which the CJEU ruled that prize winners should not have to bear the costs of collecting a prize. The CJEU also emphasised the need for clear and sufficient information to be provided to the consumer in order to enable them to identify precisely the nature of the prize. Read our summary of the case here.