FOOD AND DRINK
1. Juice Garden Ltd, 13 May 2015
The online juice retailer’s own website included claims over its juices such as “LEAFY GREENS Apple Kale Spinach Lemon Ginger Detoxifier…” and “BLOODY MARVELLOUS Beetroot Apple Carrot Lemon Blood Purifier…”
Complaint / Decision
Complainants challenged the words “Detoxifier” and “Blood Purifier”, stating they were subject to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods. The ASA upheld the complaint.
The advertiser stated that it did not seek to profit from health concerns and that they would be willing to make changes to the ad, but did not provide a substantive response. This was a clear breach of the Code.
However, the ASA went on to review the claims and determined that “Blood Purifier” was not an authorised health claim appearing on the EU Register. As only authorised health claims can be made to promote foods when implying a relationship between food and health, “Blood Purifier” was in breach of the Code.
Further, the ASA considered “Detoxifier” as likely to be understood by consumers as a reference to the general benefits of the food on overall health. Such claims are only acceptable if accompanied by a specific authorised health claim and, as “Blood Purifier” was found not to fall into this category, “Detoxifier” also breached the Code.
When viewed in conjunction with the ASA’s decision in Philips Electronics UK Ltd’s adjudication on 25 February 2015 this is an unsurprising result. Health-related claims will always be heavily scrutinised and particular care needs to be taken in relation to claims on websites which may not be subject to the same degree of scrutiny as traditional advertising.
2. IJM Enterprises Ltd t/a bathrooms.com, 27 May 2015
Claims on the advertiser’s own website stated “RRP £1999 NOW ONLY £499”, along with other RRP prices.
Complaint / Decision
The complainant, a competitor, challenged whether the “RRP” claims, and the savings claims on which they were based, could be substantiated as the advertised products were exclusive to the advertiser. The ASA upheld the complaint.
Bathrooms.com responded to say that the RRPs were based on prices of similarly designed products in their sector either sold on the high street or online by high street retailers. It also provided examples of such products and their prices. Bathrooms.com explained that it reviewed its RRPs regularly to ensure they were in line with the market and did not mislead customers.
The ASA considered that customers would understand RRP claims to mean that the same products are generally sold by other retailers at the stated prices, which it required documentary evidence of in order to substantiate the claims. As the products are not stocked by other retailers, the ASA considered that the advertiser was not in a position to demonstrate that the stated RRPs were the price at which the products were sold by other retailers across the market. Therefore, the claims were misleading and could not be substantiated.
Although RRPs can provide a useful starting point for savings claims, the ASA will generally take a strict view on RRPs. This adjudication follows BIS Pricing Practices Guide, specifically paragraph 1.6.2 (“You should not use an RRP or similar for goods that only you supply”), and clarifies the ASA’s interpretation of Rule 3.40 (“Comparisons with recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold”). For a good to be “generally sold” it must not be offered exclusively by the advertiser, otherwise the RRP given is likely to mislead.
3. Spacevac Technologies Ltd, 13 May 2015
Website claims for the SpaceVac gutter cleaning system stated “SpaceVac rated as the No. 1 High Level Cleaning System in PFM Magazine”. Clicking on the claim directed visitors to a page stating “We are very excited and proud to announce that SpaceVac has topped an independent high level cleaning system test, carried out by an independent industry tester and reported on findings by Premises & Facilities Management Magazine ... With independent tester Ian Robson of Progress Cleaning Services, Southampton putting each of the system [sic] through their paces, the SpaceVac system receives rave reviews from the industry expert” and named two other brands included in the testing.
The page incorporated a link to download the article about the test, which gave details on how it was conducted.
Complaint / Decision
A competitor, Spinaclean, whose system was tested against SpaceVac’s, challenged whether the ad misleadingly implied that the test was against a representative market sample and therefore breached the Code. The ASA upheld the complaint.
SpaceVac stated that it had provided its standard model for the testing and that Spinaclean had provided its own standard. It also explained that the independent tester had criticised the poles and heads of the competitor’s system as part of his assessment. SpaceVac considered that the article linked to in the claim demonstrated that the products were comparable, with the exception of vacuum units, but that vacuums were not criticised by the tester or the article. However, as it had not conducted the test itself, SpaceVac felt was not in a position to provide further evidence.
The ASA acknowledged that SpaceVac had not conducted the test, but as the results were included in its marketing, it was responsible for ensuring the claims made about the test and its results were suitably substantiated. The ASA considered that the claims would be interpreted by consumers to mean that the magazine, PFM, had rated SpaceVac the best system on the market as a whole. As the test had only been conducted on three systems, and there was no evidence to the contrary, the ASA felt that the test was not representative of the market as a whole.
The ASA considered that this was further demonstrated by the fact that, while SpaceVac’s vacuum units in the systems tested were made by the same manufacturer as the competitor’s, the competitor’s system used in the test comprised a less powerful unit. Further, SpaceVac manufactured a comparator model with similar specifications to the Spinaclean system used. Therefore, while the ASA acknowledged that the test focused on the pole systems of the products rather than the vacuum unit, it noted that the quality of the base units was specifically criticised as part of the testing. As a result, the ASA determined that the test report did not substantiate the claim used in the ad and that it was therefore misleading.
The ASA always takes a strict approach to “number one” claims and will always require clear and independent substantiation.
4. Volkswagen Group UK Ltd t/a Audi, 13 May 2015
A voiceover in a TV ad for an Audi car stated “Audi’s all-wheel drive system, Quattro, shrugs off the worst the winter can throw at it. But Quattro’s also rather good at dealing with soggy autumn leaves, deeper-than-you-think puddles, and that drizzle that lasts from October to, well, October…” the ad also featured the car being driven through snow, heavy rain, mud, deep puddles and fog.
Complaint / Decision
The complainant questioned whether the ad irresponsibly glamourised speeding and dangerous driving. The ASA, however, did not uphold the complaint.
The advertiser stated that the weather conditions in the ad, while poor, were not extreme and were a reasonable representation of the weather experienced in the UK throughout the year. The key focus of the ad, it argued, was to demonstrate the Quattro technology’s ability to give drivers confidence in such conditions, and the advertiser provided evidence of how the technology operated.
The complainant particularly highlighted a scene in which the driver was seen smiling, and argued that this was due to his excitement at driving recklessly. Audi explained that the driver’s smiling was instead a demonstration of his enjoyment of the experience of driving safely, and Clearcast stated that the Code did allow references to driving pleasure.
Audi also explained that the scenes were filmed within the applicable speed limits and speeds had been adjusted where appropriate to take account of the adverse weather conditions. As a result, it felt that the ad showed safe driving and handling and did not encourage irresponsible or dangerous driving. It also pointed to the lack of heavy revving or excessive engine noise which would suggest speeding.
Clearcast agreed and looked to specific shots to demonstrate that the car was driving at an appropriate speed and responsibly.
The ASA considered the responses from both the advertiser and Clearcast and concluded that the ad did not depict the car driving at excessive speeds, aggressively or dangerously. It also considered that the scene in which the driver was smiling was brief and did not suggest excitement. Instead, the speed and handling characteristics of the car were shown in the context of the ad’s message that the technology made the car better at dealing safely with difficult weather conditions. As a result, the ad did not breach the Code.
While the ASA has taken the view that the driving in car advertising is not necessarily dangerous simply due to the weather conditions featured, care must of course always be taken to ensure they do not depict reckless driving. There is always a line to be drawn and consumers should not be encouraged to drive irresponsibly.
5. Hillside (UK Sports) LP t/a Bet 365, 27 May 2015
A pre-roll ad appearing before YouTube videos featured Ray Winstone stating “Oi! Don’t you even think about pushing that skip button, I’m watching you”, followed by an explanation of the offer.
Complaint / Decision
One complainant questioned whether the initial exclamation was aggressive and threatening, thus making the ad irresponsible. The ASA did not uphold the complaint.
The advertiser stated that the statement made at the beginning of the ad was intended to be a light-hearted and humorous way of encouraging viewers to watch the advert in its entirety, while also drawing attention to the skip button available, enabling them to avoid watching the ad if they wished. Bet 365 also stated that the exclamation was non-personal and presented in a ‘tongue-in-cheek’ manner that it felt viewers would not interpret as aggressive. It pointed out that the only consequence of clicking the skip button would be that the viewer would not see the ad they did not wish to view.
The ASA considered that viewers were likely to recognise Ray Winstone and associate him with aggressive characters and roles, but determined that they would also understand that the ad played on his ‘tough’ image and was light-hearted in its attempt to encourage viewers not to skip the ad. Thus, it did not believe viewers would perceive the claim as a genuine threat.
The ASA also considered that the ad did not associate the act of gambling with tough or reckless behaviour, nor did it promote those as positive traits within a gambling context. Therefore, the ad did not breach the Code, as it was not socially irresponsible.
Humour in ads can be difficult to judge. Advertisers should therefore be aware that the ASA may not be ‘in on the joke’.
6. Paddy Power plc, 27 May 2015 (a TV ad was found not to breach the Code as it did not particularly appeal to those under the age of 18)
A TV ad promoted a free bet offer for bets on Cheltenham races. The ad featured Ruby Walsh saying “I love Cheltenham more than Christmas” and a voice over stating “there’s some great jumpers in this race, like this beauty…” Subsequently, images and slow motion footage of horses and jockeys wearing woolly jumpers was shown.
Complaint / Decision
A complaint questioned if the ad breached the Code as it would have particular appeal to those under 18 years of age, but the ASA did not uphold it.
Paddy Power explained that the ad did not feature any content or character of particular appeal to children, including cartoon figures or content associated with youth culture. It also felt that the ad was not childish in its execution and that Christmas jumpers were associated with popular adult culture.
Clearcast agreed and stated that the use of 1970s style music and jumpers made the pun more likely to appeal to older audiences.
The ASA considered that while the ad was humorous and surreal in style, which may have general appeal to audiences including children, it was clearly focused on betting on horses. There was no content that reflected or was associated with youth culture, and the ASA therefore considered that the ad was unlikely to be of particular appeal to those under the age of 18. As a result, the ad did not breach the Code and the ASA did not uphold the complaint.
The ASA will always be concerned where a gambling-related ad makes reference to youth culture. However, this can be difficult to judge, and humour can mean that an ad is more likely to be considered by the ASA. However, in this case, the ASA has taken the view that the specific music, style and tone of the ad would not appeal particularly to children.
7. Cashcade Ltd t/a Foxy Bingo, 27 May 2015
A TV ad featured a fox character wearing a suit and walking through rain on Brighton Pier. As the weather changed to sunshine, he was joined by people dancing and singing, as well as a fun-fair including people riding a helter-skelter, a merry-go-round and a roller coaster.
Complaint / Decision
The ASA challenged whether the ad, and particularly the fox character, was likely to appeal to those under 18 years of age. However, it found that this was not the case and did not uphold its complaint.
The advertiser responded to say that the fox character was aligned with adult, celebrity culture and traditional British innuendo, therefore intentionally distinguishing it from youth culture. While it noted that anthropomorphic characters are common in children’s entertainment, it felt that being a fox did not by itself make a character particularly appealing to children and that the fox in the ad was not a youthful character.
In addition, Foxy Bingo pointed to the overall feeling of the ad, stating it was intended to be similar to a 1950’s film musical with a modern twist, and to appeal to all ages. While the fun-fair could be appealing to children, it felt Brighton’s historic association with British beach holidays would appeal greater to older generations, particularly given its contemporary association with betting and gaming.
The ASA considered that the character, his purple coat, dandy walk upright on his hind legs, and overall style resembled Mr Tod from Beatrix Potter’s children’s stories, which were being broadcast on children’s TV channels. However, his song-and-dance style, speaking voice and interaction with adults distanced the character from this comparison, and the ASA therefore determined that children were unlikely to make a connection between the characters.
As a result, the ASA considered that the ad would have a wide appeal, including to children, but that it was unlikely to have particular appeal to those under 18 and therefore was not in breach of the Code.
This adjudication is reminiscent of an adjudication in relation to a Fox’s Biscuits ad from October 2008, featuring a panda. The animal, in that instance, was also found not to appeal to children.
Moreover, it is interesting that, in this case, the ASA directly challenged the ad, investigating into its potential breach of the Code without a complaint from the public or a competitor. Gambling ads will always be a particular focus for the ASA and are likely therefore to be prone to such direct challenges.
8. Bear Group Ltd t/a Spin Genie, 27 May 2015
A TV ad featured a poem “You land in a world of magic and fun/ It's exciting, Spin Genie, best adventure bar none/ Open the door to smashing surprises/ Collect goodies that can win you a stash of cash prizes/ Journey with me and the further you go/ The more you could unlock a world full of dough/ Through deserts and mountains, the wonder begins/ Join Spin Genie today for 50 free spins”. It also showed a gold coin collecting jewels and treasure items as it moved through a desert to an oasis, mountain and island.
The home page of the advertiser also featured a cartoon dog called Spin above links entitled “Join”, “Play” and “Adventure”. Under the “Adventure” link, text stated “Spin will whisk you away to his magical world through the levels to collect extra bonuses” with various games including “Pixies of the Forest”, “Fluffy Favourites”, “Jack and the Beanstalk”, “Transformers Battle For Cybertron”, “Piggy Payout” and “Pirate Princess”.
Complaint / Decision
The complainant questioned whether the ads would be of particular interest to those under 18 years of age and were therefore irresponsible. The ASA agreed they were likely to appeal to minors and therefore found the ads to breach the Code.
With regard to the TV ad, Clearcast explained that the visuals, voice-over, on screen text, background music and theme were chosen as they would have general appeal, rather than particular appeal to those under 18. It felt that the ad resembled video games that were aimed at both children and adults, and only used recognisable casino, betting and gaming graphics that were linked to the games featured on the advertised site. Clearcast argued that these elements came together to demonstrate that the ad was not aimed at children.
The advertiser also responded to state that the ad was broadcast after the watershed and only during breaks of shows indexed as having an adult audience.
The ASA disagreed and considered the ad to be reminiscent of a child’s video game. The rhyming poem and language used created an impression of adventure which was added to by the graphics. As these are all often elements of children’s programmes and games, the ASA considered that the TV ad was likely to appeal to those under 18 years of age and therefore breached the Code.
Regarding the advertiser’s website, it explained that they had aimed their site to the casual gambling market, predominantly females between 25 and 44 years of age, playing mobile-based games characterised by ‘fun’ branding and highly stylised or animated characters. Spin Genie explained that the character Spin had been drawn to avoid Disney-style imagery or that of well-known cartoon characters and had avoided drawing a ‘cute and cuddly’ dog. It also felt that “adventure” was synonymous with risk-taking behaviour, which would appeal to adults rather than children.
The ASA considered that cartoons have the potential to appeal to those under the age of 18 and need to be used particularly carefully when advertising gambling. In this case, the ASA determined that Spin was not adult in nature and was likely to appeal to children, particularly given the text explaining that he would “whisk you away to his magical world”. The names of the games were also likely to be familiar to children and included further cartoon-like imagery which would appeal to them. As a result, the ASA determined that the ad breached the Code.
This decision may seem surprising when contrasted with Foxy Bingo’s ad, above, where another animal-based character in a childish setting was not found to breach the code. However, a comparison between these two adjudications demonstrates that the ASA does not only look to the characters used in ads, but rather their overarching theme and impression, when adjudicating. However, with this being the third gambling-related adjudication this month to be reviewed for their likelihood of appealing to those under 18 years of age, advertisers should consider the overall tone and whether they are targeted to the appropriate market.
9. Solitair Ltd t/a Solitair Holidays, 27 May 2015
A flyer and brochure stated “Join the first choice for Single Travellers… SOLITAIR The first choice for single travellers”. The brochure also included small print explaining “The First Choice for Single Travellers is for trademark purposes”.
Complaint / Decision
A complaint questioned whether the claims were misleading as their basis was not sufficiently clear. The ASA agreed and upheld the complaint.
The advertiser provided a copy of its terms and conditions which stated “Solitair trademark does not imply to any sales or revenue”.
The ASA considered that the fact that the “first choice” claim was not based on unit sales or turnover was material information that may impact a consumer’s decision to enter a transaction, and that its position in the terms and conditions would easily be overlooked by consumers.
In addition, the ASA determined that the brochure’s qualification was not sufficiently prominent and that consumers would not understand that the claim was not based on unit sales or turnover. As a result, the claim was misleading and breached the Code.
Though the advertiser attempted to circumvent the Code’s provisions on comparative claims by stating that the claims were instead a trademark of the brand and not based on comparisons of sales or revenue, they still fell foul of the Code. Holidays represent a large expenditure for many consumers, and the ASA’s decision in this adjudication demonstrates the need for clarity, even where claims are not comparative.