ADJUDICATIONS

FOOD AND DRINK 

1.  Kellogg Marketing and Sales Company (UK) Ltd, 10 September 2014 (a Kellogg’s TV ad for a new porridge made a comparative nutrition claim that was held to be invalid because the comparator products selected were not representative of the range of porridges in the food category, and the product had been tested in a dry state that was not considered to be ‘porridge’)

HEALTH AND BEAUTY

2.  Love Taste Co, 17 September 2014 (an ad for smoothie pouches was found to be in breach of the Code for making misleading health claims)

HOUSEHOLD

3.  Fischer Future Heat UK Ltd, 3 September 2014 (several complaints about ads and mailings relating to the efficiency of storage heaters were made; eight of the nine issues investigated were upheld)

4.  Morphy Richards Ltd, 17 September 2014 (Dyson’s challenge to Morphy Richards’ vacuum cleaner ad has finally succeeded, the ASA determining that a claim that the product “never loses suction” suggests no loss of performance over a lifetime rather than during each use, for which there is no test under the relevant Standard and can therefore not be substantiated)

5.  Vax Ltd, 17 September 2014 (a complaint about claims made in website ads for two vacuum cleaners was upheld in part)

LEISURE 

6.  Betfair Counterparty Services Ltd t/a Betfair, 3rd September 2014  (several complaints were made that a number of gambling adds were misleading; three out of five issues investigated were upheld)

7.  Ladbrokes Betting & Gaming Ltd, 17 September 2014 (complaints that a series of gambling ads were marketed at the wrong age group and glorified irresponsible gambling behaviour were upheld in part)

8.  Must Have Ltd t/a VIP Electronic Cigarette, 24 September 2014 (an ad for e-cigarettes was held to have been given an inappropriate timing restriction for airing on TV as it included sexual references)

OTHER

9.  Europe EHIC Services Ltd t/a European Health Card, 17 September 2014 (a website which featured a paid-for application service for the European Health Card was found to be misleading as it did not clearly state that it was not the official body for processing such applications nor that they could also be made for free on the relevant NHS website)

10.  UK Services & Support Ltd t/a UK Passport Offices, 17 September 2014 (a website was found to be misleading because it did not make it sufficiently clear that it was not the official website to obtain a passport or that the fee charged for using it was a service charge only)

11.  Generic Maths Ltd t/a Conquermaths.com, 3 September 2014 (an ad promoting a competition was held to be in breach of the Code because it did not make clear significant conditions of entry)

12.  American Apparel (UK) Ltd, 3 September 2014 (ads promoting a skirt for school-wear featuring a woman with her crotch and buttocks visible were held to be offensive and irresponsible for being overtly sexual and inappropriate)

MOTORING

13.  BMW (UK) Ltd, 17 September 2014 (an ad tweeted by BMW was found to be in breach of the Code for making speed and acceleration the main focus of the communication)

RETAIL

14.  ASDA Stores Limited, 10 September 2014 (two ads comparing Asda price promotions with Tesco prices were found not to be misleading as they made clear the basis of the comparison)

TELECOMMUNICATIONS

15.  Virgin Media Ltd, 17 September 2014 (two complaints that various ads claiming that Virgin’s broadband download speeds were faster than those of BT and Sky were misleading were upheld; one complaint that the basis of the comparison between suppliers was unclear was not upheld)

16.  Moneysavingexpert.com Ltd, 10 September 2014 (an ad promoting TalkTalk’s Simply Broadband offer was found to be misleading as it implied that calls were included in the offer when they were not)

FOOD AND DRINK

1.  Kellogg Marketing and Sales Company (UK) Ltd, 10 September 2014

Kellogg’s TV ad advertised its “New Special K Multi Grain Porridge” claiming that its new product had “At least 30% lower than the average fat content of most porridges, as calculated April 2013” - a comparative nutrition claim under the EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation).

Complaint/Decision

15 complainants, including PepsiCo, challenged whether the comparative nutrition claim complied with the Code. The ASA upheld the claim for two reasons:

1.  The ASA had not seen evidence that the comparator porridge products selected were representative of the category of product; and

2. The comparative claim was based on the fat content of Special K porridge and the comparator products when they were dry, and therefore not being consumed as “porridge”.

Under the Regulation an advert is able to assert a ‘reduced fat comparative claim’ if the product in question is (1) compared to a range of foods of the same category, and (2) where the product was at least 30% lower in fat than the average fat content of the range of products. 

In relation to the first reason for the claim being upheld, the ASA was happy that the products selected by Kellogg were in the same food category, but it noted that by selecting the top 75% market share of the food category for comparison, Kellogg had selected only 35 products out of 307, and these 35 included duplicate products of different weights, or with varying toppings. 12 of the 35 products were owned by one brand.

Therefore, the ASA concluded that although the comparator products were the most popular with consumers, the comparator products did not represent the range of fat content of porridge. 

Turning to the second reason for upholding this claim, the ASA disagreed with advice relied upon by Kellogg given by the Department of Health that the Regulation did not have to apply to the product in its ‘ready for consumption’ state if it could be consumed any other way, and that comparison of the product with liquid may not be fair due to the different types of milk or water it could be prepared with. Although Kellogg’s porridge oats could be consumed as sold in the form of dry oats, barley and rye, the ASA ruled that the product consumed in this dry state would not be “porridge”, and as such, consumers would not believe the claim to relate to the dry, unprepared product.

This adjudication demonstrates how strictly the ASA will interpret the Regulation, even in circumstances in which Kellogg had based its comparison expressly to “most porridges” and where it was accepted they had compared with the most popular products. It is not advisable for marketers solely to use market share to define the selection of comparator products; the range of products within the selection may well be more important than consumer popularity. Marketers should also consider how the consumer envisages consuming the product when deciding upon the state in which its nutritional claims are assessed. This adjudication is reminiscent of a previous Special K ad in July 2012, which referred to the calorie content of the product, but which did not include milk.  In that case the complaint was upheld, on the basis that consumers were likely to interpret the calorie claim as being inclusive of milk, particularly as the ad prominently featured the cereal being eaten with milk.

HEALTH AND BEAUTY

2.  Love Taste Co, 17 September 2014

A promotion on the website www.lovetaste.co featured a smoothie range, with information on how to use the pre-packaged smoothie pouches to make a smoothie, including reference to mixing 200ml of apple juice with the contents of the fruit pouch. Text in the promotion included the wording “…The Good Bits: Each one gives you 2.5 of your 5-a-day …”.

Complaint/Decision

One complainant challenged whether the claim “Each one gives you 2.5 of your 5-a-day” was misleading and could be substantiated.

The ASA upheld the complaint. In their response, Love Taste Co made reference to government guidelines on eating fruit and vegetables. While they acknowledged that the guidance stated that fruit juice alone could only ever constitute one portion of fruit per day regardless of the amount, they also pointed out that there was no limit on the amount of portions that could be contained in a smoothie. They stated that NHS guidelines advised that 80g of fruit and 150 ml of fruit juice were each equivalent to one portion and that each of their smoothie packs contained fruit weighing 140g which should then be blended with 200ml of juice by the customer.

The ASA considered that consumers would understand the claim in the ad to mean that each smoothie, when properly made, would provide two and a half portions of fruit and vegetables as recommended under government criteria. The ASA acknowledged the arguments put forward by Love Taste but noted that in actual fact only three of the pouches contained 80g or more of one variety of fruit or vegetable, which the ASA understood was a requirement of the government guidance if more than one portion was to be declared for the smoothies. Another government requirement is that, to qualify as an extra portion, the juice used must be a different variety of fruit or vegetable to that contained in the rest of the pouch.  The ad did not make this clear. The ASA also observed that the ad did not make it clear that the juice should be 100% fruit or vegetable or that a minimum of 150ml must be used for it to qualify as a portion of fruit or vegetable. In light of these considerations the ASA concluded that the claim made in the ad was misleading and accordingly found it to be in breach of the Code.

Advertisers are, understandably, often keen to emphasise the healthy nature of their products, particularly by reference to the government’s 5-a-day initiative.  However, when trying to make any claim in relation to such a benefit, it is of crucial importance to follow the government guidelines very carefully, and to avoid over-stating the benefit. 

HOUSEHOLD

3.  Fischer Future Heat UK Ltd, 3 September 2014

A number of ads promoted storage heaters, including in particular:

a)  A press ad included the claims “The most efficient German storage heater in the UK” and “... most efficient German storage radiator on the market”, together with some efficiency claims, and

b) Claims on the company’s website which stated “... no other German Storage Heater can match our running cost” and “... we provide the best value German storage radiator in the market”.

Complaint / Decision

The complainants challenged whether 9 different claims could be substantiated, most of which related to the superiority claims contained in the ads, but also in relation to some of the efficiency claims.

All complaints except in relation to a simple claim that the heater was compatible with Economy 7, were upheld.

In relation to the superiority claims comparing the efficiency and running costs of the heaters subject to the complaint with those of other manufacturers, the ASA considered that consumers would interpret these as meaning that there was comparative evidence to prove that the product was more efficient than all other German storage heaters on the UK market and that the heater’s running costs were lower than other competitors on the market. However, Fischer had only tested their product against two other storage heaters, only one of which was German. The ASA considered that since there were other competitors on the UK market, testing against only two other products was insufficient. In addition, the tests carried out had not been repeated and were not carried out in a consistent manner. The ASA therefore considered that Fischer did not have sufficient evidence to substantiate the claim and upheld the complaints.

Similarly, in relation to efficiency claims, the ASA considered that Fischer had not provided sufficient evidence to substantiate claims that their product consumed less energy or reduced energy wastage in comparison with other storage heaters on the UK market, nor as a result that the consumer would save money as a result. The ASA therefore upheld these complaints.

This adjudication demonstrates the ASA’s strict approach to superiority claims.  Comparative ads, by their very nature, are likely to be scrutinised by competitors and consumers, and must therefore be worded very carefully to avoid the risk of complaints being upheld.  In technical areas, particular care must be taken to form the claims carefully and not to exaggerate or over-generalise a product’s performance.

4.  Morphy Richards Ltd, 17 September 2014

An ad seen on www.morphyrichards.co.uk stated "... proven to pick up more dust than other vacuum cleaners in its class*" and "Introducing our new Never Loses Suction** LIFTAWAY Bagless Upright Vacuum Cleaner". Small print at the bottom of the web page included the text "*Models compared based on a single carpet sweep. Morphy Richards 73410, Dyson DC24, Vax Mach Air U91-MA-B & Hoover Turbo Power UTP1605" and "**In accordance with independent laboratory testing to IEC 60312-1 edition 1.1 consolidated with amendment 1 (2011:11)".

Complaint/Decision

Dyson Ltd challenged whether the following claims were misleading and could be substantiated:

1.  "proven to pick up more dust than other vacuum cleaners in its class"; and

2.  "Never Loses Suction".

In relation to the first complaint, the ASA noted that Morphy Richards referenced Section 5.3 of the Standard for dust removal from carpets, whilst having distributed the dust in accordance with Section 5.1.4 relating to dust removal from hard floors. In addition, the ASA advised that in order to make claims in relation to dust removal, demonstration of compliance with further factors under Section 5.3 was necessary. These include specifying the carpet, dust used and method of embedding the dust into the carpet. Evidence of these factors was not provided, so the claim was found to be misleading.

In relation to the second complaint, the ASA observed that the phrase “no loss of suction” (which had not been used by Morphy Richards) related to clause 5.9 in the performance loss Standard, which dealt with performance under one single dust load rather than over the lifetime of the vacuum cleaner. The ASA stated that “never loses suction” (which Morphy Richards had used) did not have the same meaning as “no loss of suction”, and instead would be understood to mean that the product would never lose suction over itslifetime. As there is no Standard to assess a vacuum cleaner’s long-term performance, the ASA held that “never loses suction” had not be substantiated and was misleading.

This adjudication replaced a previous adjudication published on 3 April 2013, and, while only changing the wording, but not the decision, on the first complaint, the ASA changed its decision on the second complaint from not upheld, to upheld.

The ASA’s change in decision on claim 2 concludes a long-lasting duel between Dyson and Morphy Richards on this advert, with each company apparently seeking to challenge the original decision .  A claim “never loses suction” is a very strong claim; it is therefore somewhat surprising that Dyson’s original challenge on this was not successful.  Manufacturers must also always be careful to carry out tests in strict accordance with the relevant Standard.

5.  Vax Ltd, 17 September 2014

Two ads for vacuum cleaners featured on Vax’s website (www.vax.co.uk):

a) an ad for the Vax Air Max U88-AMM-B vacuum cleaner included text that stated “Multi-cyclonic technology - Constant, powerful suction - Multiple cyclones separate dirt from the air, so the suction is always as powerful as the first time you used it" and "Powerful performance - 320 air watts - All the cleaning power of a conventional upright, so there's no compromise in performance".

b) an ad for the Vax Air U88-AM-B vacuum cleaner included text that stated “"Powerful performance - 225 air watts - All the cleaning power of a conventional upright, so there's no compromise in performance".

Complaint/Decision

Dyson Ltd challenged whether the following claims made in the ads were misleading and could be substantiated:

1.  in ad (a), “Constant, powerful suction – Multiple cyclones separate dirt from the air, so the suction is always as powerful as the first time you used it”; and

2.  “320 air watts” in ad (a) and “225 air watts” in ad (b).

The ASA did not uphold the first complaint but upheld the second one.

1.  In response to both challenges Vax sought to rely on a series of independent third party tests they had commissioned in respect of both products. The tests were carried out against the BS EN 60312 Standard, fourth edition, which the ASA understood to be the latest published version at the time. Dyson also provided its own test results which had similarly been carried out against the same Standard.

Unsurprisingly, the two parties’ tests produced differing results, with Vax’s purporting to substantiate the claim and Dyson’s disproving it. The ASA considered that the Standard used approximated to how a vacuum cleaner would be used at home and was therefore an appropriate test to support a claim that there was “no loss of suction”. The ASA noted that whereas Dyson’s testing had been carried out in-house and had assessed only one model, Vax’s had been carried out by an independent testing house on three models. The ASA therefore concluded that Vax’s testing results should be considered the most compelling.

However, despite the above, the ASA also considered that the wording in the claim “…so suction is always as powerful as the first time you used it” would be understood by consumers to represent a claim about lifetime use of the product. The ASA felt that such a claim would need to be supported by adequate evidence. The ASA understood from the ASA expert consulted that the testing in relation to the Standard was only designed to determine the effect of a single dust load and as such could not be used to substantiate claims about lifelong performance of the product. Accordingly therefore the ASA found that the claim had not been fully substantiated and that the ad was in breach of the Code.

2.  Vax and Dyson again submitted test results in support of their arguments. While the ASA noted that Vax’s testing had been carried out in accordance with a newer version of the Standard than Dyson’s, the ASA considered that on a practical level the procedures set out in each for measuring air data  were essentially the same and therefore both would still represent valid submissions. However, as was the case in point 1, the ASA noted that Vax’s testing had been carried out on three models by a third party whereas Dyson’s had only used one model and been carried out internally. After also consulting the ASA’s expert on the matter, the ASA concluded that Vax’s evidence was the most compelling and that they had substantiated the air watts claims in their ads, which were in turn found not to be in breach of the Code.

This revised adjudication follows another lengthy review process (this one from June 2013).  However, Dyson were not successful in changing this adjudication.  The ASA had picked up the “lifetime” claim in the original adjudication on this occasion.  Nevertheless, care must always be taken with regard to implied claims and to be careful not to make a broad claim which the substantiation does not support. On the second part of the claim, it is a useful reminder to ensure the relevant version of the relevant standard is used.  Although in-house testing can, and often will be, relied upon, it is not surprising that, in the event of a conflict in the findings, that the ASA preferred the greater number of independent tests.

LEISURE 

6.  Betfair Counterparty Services Ltd t/a Betfair, 3 September 2014

Two ads on Betfair’s website and a TV ad all featured money back offers:

a)  A box included on the “Football” tab of the website that stated “WORLD CUP – ALL MARKETS – ALL CUSTOMERS MONEY BACK IF ENGLAND LOSE IN ANY GROUP STAGE MATCH IN BRAZIL” qualified by text in a linked pop-up box that stated “MONEY BACK AS A FREE BET Exclusive World Cup offer on ALL* markets, ALL customers, ALL England group games, giving further qualifications and then terms and conditions in smaller text including a reference to the asterisk explaining that “Selections in certain markets do not qualify…” Another headline text to the right of the box stated “WORLD CUP SPECIAL MONEY BACK IF ENGLAND LOSE’.

b)  A box at the top of the “Home” tab on the website featured Andy Murray and stated “2014 WIMBLEDON – FIRST BET ONLY MONEY BACK IF MURRAY WINS” and in a linked pop-up box stated “WIMBLEDON SPECIAL Money back as a free bet if Andy Murray wins the Wimbledon men’s singles…”.

c)  In a TV ad that featured an octopus playing four games of table tennis simultaneously, the voice-over stated “On every England group match Betfair offer you money back as a free bet if England lose. All markets. All customers”, repeated in large on-screen text. Smaller text, shown throughout the screening of the ad, explained the terms and conditions with a reference to Betfair’s own website for full details.

Complaint/Decision

The first three parts of the complaint were as to whether the claims “Money back if …”  and to “full refund” in ads (a) and (b) were misleading as customers actually received a free bet token.  One complainant challenged whether the claim “All markets” in ad (a) was misleading because they believed certain markets were excluded, and, lastly, one complainant challenged whether the claim “Money back as a free bet” in ad (c) was misleading because the statement was contradictory.

The ASA upheld the first three parts of complaints but did not uphold the last two.  In respect of the claims stating “Money back …” in relation to the World Cup football matches and Andy Murray at Wimbledon , in ads (a) and (b) respectively, the ASA considered that most consumers would understand this to mean that in either eventuality they would receive their original stake back in cash, to spend in whatever manner they chose. Betfair argued that returning the stake as a free bet under a “Money back” promotion was a commonly used promotional technique in the gambling industry.  Nonetheless, the ASA considered that it would not be immediately clear to customers that the offer was in relation to a free bet token of the same value rather than return of their money and so the claims were misleading. Based on similar reasoning, they ASA also concluded that the claim in ad (a) that consumers could receive a “full refund” was misleading.

In relation to the “All markets” issue, the ASA understood that, although all markets were included in the offer, some selections within those markets were excluded.  Betfair pointed out that the ad included footnote text that stated “Selections in certain markets do not qualify” and the ASA also noted that the terms and conditions that were linked to the page explained in full which selections were excluded from the offer. The ASA accepted this as appropriate qualifying, rather than contradictory, text and did not find the ad to be misleading in this respect.

As to the claim “Money back as a free bet” in ad (c), unlike in points 1 and 2, the ASA concluded that this was not misleading on the basis of being contradictory, as, in this instance, the ad made specific reference to the fact that customers would not receive cash back but a free bet token, with the voice-over stating “Money back as a free bet”.

7.  Ladbrokes Betting and Gaming Ltd, 17 September 2014

The “Ladbrokes Life” marketing campaign featured a series of ads, comprising four TV ads, six national poster ads, four video-on-demand (VOD) ads and a video on the Ladbrokes Youtube channel.  The ads were based on a group of five male friends, with each of the characters’ respective nicknames being mentioned: “The Professor”, “Gut Truster”, “The Believer”, “Generous John” and “Mr Brightside”. The ad then featured varying numbers of the group in different scenarios including, playing football, at a pub, at horseracing and in a nightclub.  The images in the ad then focused on each group member in turn while a voice-over stated, “So, there's this guy, right - The Believer. He likes his odds long and his wins big. Risk would be his middle name, if it wasn't already Douglas. And Generous John. First to the bar, last in the cab. He know betting's a team sport. And who better to have on your team than Brightside here? If he was a battery, he'd be positive at both ends. And then there's The Professor: calculator with a beard. He knows all the stats and facts and reckons he can work the whole thing out, which winds this man up no end 'Where's the fun in form?', he says. 'When you know, you know you know ... you know?' They are the dreamers, the glory-seekers, the back-page philosophers, the Wednesday-night warriors. They are the have-a-go heroes of Saturday afternoon. They are the betting men, and this is the Ladbrokes Life…”.  An ad on Ladbroke’s Youtube channel also featured the characters.  Poster ads featured each of the characters with similar text applicable to the relevant character.  Four VOD ads also featured each of the characters with similar voice-overs. 

Complaint/Decision

The ASA received a total of 98 complaints spread across a number of issues.  Most complainants challenged whether ads broke the Code because they portrayed irresponsible gambling which appeared essential to the social situations depicted. Complainants were also concerned the ads portrayed peer pressure to gamble amongst friends and also generally associated gambling with toughness.  Some complainants challenged whether the Youtube and poster ads were in breach of the Code as they had been irresponsibly targeted and could be seen by under-18s.  A few complaints believed certain of the ads made a direct link between gambling and sexual success and were as such in breach of the Code.

The ASA upheld the first part of the complaint in part but did not uphold the second two.

1.  Ladbrokes felt that, contrary to the complaint, the ads depicted positive social engagement which included, but was not focused on, gambling. They argued it showed low value and occasional betting within the context of a normal social life. In supporting this notion they pointed out that betting was only one of a number of activities featured in the ads and in no way defined the characters more than the other pursuits they were seen undertaking. They also contested that they did not feel the group of friends were depicted by the ads to be ‘cool’ or ‘glamorous’ and they were not shown to be reckless or irresponsible. 

The ASA emphasised the importance of carefully marketing gambling products and services and noted the importance of minimising the impact of such ads on children or vulnerable people who may previously have had gambling addictions. 

In respect of the TV, VOD and Youtube ads, the ASA acknowledged the argument put forward by Ladbrokes that gambling was only one of a number of activities the characters were seen engaging in. Although the ASA recognised that a number of complainants had felt gambling was portrayed as being an essential and underlying component of the social scenes depicted in the ads, the ASA were on balance satisfied that this was not the case. They noted in particular that were no portrayals of the characters putting pressure on each other to gamble or instances of gambling excess, and the gambling was only one of a number activities they appeared to enjoy together.

The ASA did not concur with Ladbrokes’ assertion that the characters in the ads were portrayed as being ‘uncool’, as they considered that the opening scene in the first TV ad, where the characters were introduced, was highly reminiscent of a scene in the film ‘Reservoir Dogs’. However the ASA went on to say that this connection, as well as the mock reverential tone of the voice-over, would be understood by consumers as tongue-in-cheek and humorous and would therefore not be taken too seriously imply gambling would make a person appear ‘cool’.

The ASA noted that across the video ads the characters were introduced alongside what the ASA considered to be gently humorous depictions of their everyday approach to general life. In the poster ads however this context was not provided. Due to this lack of context the ASA considered that the text in two of the poster ads, which respectively read “WHEN YOU WIN IT’S SKILL – WHEN YOU LOSE IT’S BAD LUCK” and “ONCE IS LUCK – TWICE IS TALENT” condoned and even encouraged irresponsible attitudes towards gambling. The ASA therefore found these two poster ads to be in breach of the Code, but did not uphold the complaint against any of the other ads.

2.  Ladbrokes stated that the Youtube ad only featured on their Youtube channel as opposed to appearing before other unconnected videos. They further informed the ASA that they ensured all subscribers to the Youtube channel were over 18 years of age. They also stated that, in respect of the poster ads, they had ensured none of them appeared within a 100 metre radius of a school and that all of them featured text stating “18+”.

The ASA reiterated the importance of protecting children from gambling marketing. They acknowledged the points made by Ladbrokes in respect of their Youtube channel and the placing of the poster ads and also noted the age restrictions that had been put in place by the platforms for the VOD ads (4OD and Demand 5). While the ASA understood the concerns raised by one complainant that the poster ads had featured near an area where children tend to congregate, the ASA considered that the area in question was a general location open to the public that was likely to attract a wide audience and as such the placing of the poster had not been directed at under-18s.

The ASA was therefore satisfied that the ads referenced in this challenge had not been directed at under-18s through selection of media or context and as such were not in breach of the Code.

3.  Ladbrokes pointed out that, although the ads did contain a scene at a party which showed eye contact between the Believer and a woman, the scene was fleeting and featured towards the end of the ads as part of a montage of various activities.

The ASA considered that the eye contact between the Believer and the female character did imply sexual attraction, especially as it appeared while a voice over also stated “dreamers”, “glory seekers” and “back-page philosophers”. They accepted Ladbroke’s assertion that the ads portrayed a wide array of different activities and that gambling was not represented as being a fundamental or defining part of the characters’ lives. The ASA also considered that, in the context of a party scene where no gambling took place, viewers would not interpret the female character’s attraction to the Believer as being based on the fact that he gambled. Therefore the ASA concluded that the ads did not link gambling with sexual success or enhanced attractiveness and as such were not in breach of the Code.

8.  Must Have Ltd t/a VIP Electronic Cigarette, 24 September 2014

A TV ad for VIP e-cigarettes featured a woman in a black dress who, when speaking to the camera, stated, “You know that feeling you get, when something’s great? You can touch it, hold it, even see it? Well, now you can taste it.” While she was speaking she ran her hand over her thigh and a voice over then stated, “Choose the great taste of VIP e-cigarettes and e-liquids. Quality assured since 2009, with a variety of flavours and nicotine strengths from 0 to 24 mg. VIP.”

Complain/Decision

86 viewers complained about the ad on the following grounds:

1.  Most viewers challenged whether the ad was offensive on the grounds that it was overtly sexual and irresponsibly sexualised e-cigarette use.

2.  Many viewers challenged whether the ad was suitable for broadcast before 9pm.

3.  One viewer challenged whether the claim “Quality assured since 2009” was misleading and could be substantiated.

The ASA upheld the second complaint but did not uphold the other two.

1.  Must Have Ltd/ta VIP Electronic Cigarette (VIP) argued the ad did not contain any explicit or implicit sexual imagery and that the mild innuendo involved in the ad was quickly revealed to relate to the pleasures of vaping and the flavour of the product. The ASA considered that, although some viewers might find the woman’s sensual tone and touching of her leg distasteful, the sexual references were unlikely to be considered as explicit or overt. They therefore concluded that the ad was unlikely to cause serious or widespread offence and as such was not in breach of the Code.

2.  Clearcast stated that they had applied an ‘ex-kids’ restriction to the ad (so that it would not be shown adjacent to programmes aimed at young children), which they still believed to be appropriate. They said this conclusion was based on the fact that, in their view, the ad only contained mild innuendo and therefore only the youngest of children needed to be protected from seeing it. However, the ASA considered that the degree of sexuality in the ad, while not overt, was also unsuitable for older children. The ASA therefore concluded that the ad should have been given a 9pm timing restriction and as such was in breach of the Code.

3.  In response to this complaint VIP provided the ASA with a range of reports showing product testing and analysis dating back to 2009. The ASA acknowledged that there were no specific quality assurance regulations which applied to e-cigarettes and, on reviewing the reports supplied to them by VIP, considered that the claim had been substantiated and therefore that the ad was not in breach of the Code in this respect.

OTHER

9.  Europe EHIC Services Ltd t/a European Health Card

A website, www.europeanhealthcard.org.uk advertised a European Insurance Health Card (EHIC) replacement service for the old E111 form, which is no longer valid, and displayed a prominent picture of the card with a heading on the home page stating “EUROPEAN HEALTH INSURANCE CARD…” followed by text stating “THE REPLAEMENT SERVICE FOR THE OLD E111 FORM” and offering an application verification service to prevent errors or delays.

The web page included a “Quick Sign-up form” which included text at the bottom that stated “A processing fee is now required per application”.

Text at the bottom of the web page gave a phone number for making applications to NHS Direct, stating that there was no charge apart from the cost of the call and also stated that an “unevaluated” application could also be made direct through the NHS website “free of corroboration cost”.

If consumers submitted an application as per the above, they were taken through to a payment page which stated “A processing fee is now required per application” and that the price for a “Standard Application” was £23.50.

Complaints/Decisions

One complainant challenged whether:

1.  the website misleadingly implied it was the official website for the European Health Insurance Card (EHIC); and

2.  the website was misleading because it did not make clear that the card was available free from the NHS and that the advertiser levied an additional charge.

The ASA upheld both complaints.

1. & 2.   The ASA understood that the website www.europeanhealthcard.org.ukenabled users to apply for an EHIC but that it was not the official government channel for this service. The ASA considered that consumers were likely to infer that a website providing application services for a government issued document was official unless it was made sufficiently clear that was not the case. They also felt, in this instance, the simple design of the website combined with the prominent picture of an actual EHIC card, which had no clear disclaimer annexed to it, was likely to further contribute to the overall impression that the website was an official channel to obtain the card.

The ASA did note that the terms and conditions included information stating that the EHIC was available directly from the NHS with no application cost. However they considered that the wording of the information was unclear and that it contradicted the overall impression given by the page, which was that the website constituted the official service for applications. Furthermore, the ASA felt that the main focus of consumers’ attention when using the website would be making the application for the EHIC and that the location of the disclaimers would mean many consumers would not have read them before proceeding with the application process.

The ASA considered that the disclaimers regarding the non-official nature of the website and the extra charge imposed on consumers therein should have been clearly worded and presented prominently and also separately from any other information. As this was not the case they concluded that the website was misleading for not indicating it was not the official body responsible for issuing the EHIC and also for not making clear that the EHIC could be obtained for free from the NHS.

10.  UK Services & Support Ltd t/a UK Passport Offices, 17 September 2014

On the website www.ukpassportoffices.co.uk the home page was headed “UK Passport Offices Information Resource” and smaller text underneath stated “Proud to claim No Passport Office or Government Accreditation”.  Text throughout the page included a number of disclaimers similar to this which specifically included the statements “We are proud to claim no government funding or affiliation operating as an independent organisation from the Government and Her Majesty’s Passport Office with no ability to issue passports and all fee’s [sic] paid to us not coming off the passport fee itself as we provide a range of optional value added services.”

Further down the page a table appeared which compared the services offered by UK Passport Offices and ‘HMPO’. One of the links on the page read “Apply Online Here” and, when consumers clicked on this they were taken through to a new page that featured a range of services. Below the links for these various services, further text in the body copy of the page stated “As part of our service we will arrange your free appointment…The fee that you pay us does not come off the passport fee as this will be due to Her Majesty’s Passport Office on the day of your appointment. Our charges and value added services can be avoided by using the governments www.Gov.uk service”. When they clicked on the “BEGIN PROCESS” link users were led to a page with a “submit application” tab and upon clicking this they were taken to a page headed “Payment Now Required”, various other warnings that payment was now required and the amount it would be were further included.

Complaint/Decision

One complainant challenged whether the website:

1.  misleadingly implied that it was the official website for HMPO; and

2.  was misleading because it did not make clear that the fee charged by the advertiser was a service charge only and an additional fee would be required to pay for the actual passport itself.

The ASA dealt with the complaints simultaneously and upheld them both.

1.& 2.   The ASA understood that the website www.ukpassportoffices.co.uk provided a paid-for appointment making service for consumers but was not the official government body for that service, nor did it have any powers of issue in respect of passports. However, the ASA considered that consumers were likely to believe that a website providing services in relation to a government issued document, such as a passport, would be official unless it was made specifically clear that this was not the case.

UK Services & Support Ltd t/a UK Passport Offices (“UK Services”) stated that they had included a high number of disclaimers in the header or body copy of each website page, informing users that they were an independent, unaccredited service that did not have any government affiliation and that charged its own separate fee in addition to that for issuing a passport. They specifically pointed out that, in response to ASA guidance in another adjudication, they had included the text “Our fees separate to Passport Fee’s”.  They illustrated that they had included a table on the website that compared their service to that of ‘HMPO’ . They also contested that further clarification was provided in the terms and conditions, which consumers would have to confirm they had read in full and agreed to before they would be able to finish their application.

The ASA acknowledged UK Services argument that they had included a number of disclaimers throughout the website. However, they considered that the web pages included a large amount of text and that therefore consumers could easily overlook the disclaimers, which in some cases were not very prominent. They also felt that this issue was likely to be exacerbated by the fact that the application process was likely to be the central focus of website users and, as they were not required to read the disclaimers, many would overlook them before proceeding with the application process. The ASA further considered that the use of images of passports (which were not accompanied by their own disclaimers) was also likely to compound the notion that the website was the official channel to obtain them.

The ASA accepted that UK Services had included a comparison table between their own service and that of ‘HMPO, whose charges were described as being “FREE”. However, the ASA again considered that the web pages included a lot of text and noted in particular that the table featured below links taking users through to the next stage of the application. They also felt t that many consumers would not be familiar with the term ‘HMPO’ and would therefore be less likely to take note of the table. Furthermore, although the ASA acknowledged that, as UK Services had stated, full clarification of these matters was provided in the website terms and conditions, they nonetheless considered it unlikely that most consumers would read these in full and that it was therefore unsatisfactory to rely on including information in there alone.

In light of the above the ASA concluded that the website had not made it satisfactorily clear that it was not the official channel for obtaining a passport or that their service fee was charged in addition to that conventionally required to obtain a passport. Accordingly, the ASA therefore concluded that the ad was misleading on both fronts and in breach of the Code.

These last two adjudications are examples of “copycat” websites, about which the ASA has expressed particular concern. The ASA has stated that these sites are commonly known as ‘copycat’ websites because they offer services from government departments and contain features similar to that of the official site making it appear as though they are ‘official’ or ‘authorised’. Many also use website tools to achieve high positions in search engines often ranking them higher than the official site, and the majority of them charge a premium for a service that is often provided much cheaper or even free by Government departments.  The ASA, as well as upholding these, and other, complaints, are working with the government and search engine providers to limit the activity of these websites that advertise their services in misleading ways and, as the ASA cannot prevent these websites from appearing, are also seeking to warn consumers to take care.

11.  GenericMaths Ltd t/a Conquermaths.com, 3 September 2014

A competition, on the website www.maydaymaths.com stated "Picture & Joke Competition To be in with a chance of winning, get your creative head on and make us a picture! Your picture can be of anything you want, but it should have a maths or ConquerMaths theme somewhere. ... Your entry must be your own work ... we'll be checking! If you're not much of an artist, why not send us your funniest maths joke ... You'll stand the same chance of winning a prize ... All entries will be posted on this site and we'll be taking votes to decide the winner. Entry is free so get your thinking hat on and send us your entries!". Text further down the web page stated "CURRENT ENTRIES & VOTING ... Rate your favourites to help choose a winner! Any entries where voting fraud is detected will be immediately disqualified".

Complaint/Decision

One complainant challenged whether the promotion breached the Code on the grounds that significant conditions of entry for the competition were not made clear. The complainant felt the ad implied the winning entry would be selected by a public vote, whereas in fact it was selected by a judge.  The complainant also considered that it was not clear that votes from outside the UK or multiple votes from the same IP address would not be counted.

The ASA upheld both parts of the complaint. 

GenericMaths stated that text in the ad clearly stated “rate your favourite to help choose a winner” and that the use of the word ‘help’ made it clear to entrants that the voting would not be the determining factor. The also contested that the terms and conditions further emphasised this by stating “Votes are used to assist judges …and do not automatically signify standing within the competition.”

The ASA noted that the first mention in the ad as to how the winner would be selected was text stating “we’ll be taking votes to decide the winner” and, given that there was also an absence of any reference to judges at this point, they considered that this would lead entrants to believe the winner would be chosen by voting.  The ASA also considered that the text stating “any entries where voting fraud is detected will be immediately disqualified” would signify that a high degree of import was attached to the voting process and reinforce this message. The ASA further considered that the quote from the terms and conditions which GenericMaths had sought to rely on was in fact contradictory to the general impression created by the ad and, as such, did not provide clarity but contradiction. As such, the ASA found that a significant condition as to how the winner would be selected had not been made clear to entrants and as such the ad was in breach of the Code in that respect.

As to the question of votes from outside the UK or multiple votes from the same IP address, GenericMaths stated that, although the competition itself was only open to entrants from the UK, this restriction did not apply to voting and therefore votes cast from outside the UK would still be admitted. GenericMaths also pointed out that, in their opinion, the terms and conditions clearly stated that only one vote would be accepted per household.  However, while the ASA acknowledged the points put forward by GenericMaths, they noted that neither the ad nor the terms and conditions stated that extra votes per household would be discarded, as had seemingly happened to some of the complainants, nor did they define what was meant by one ‘one household’ (ie whether it actually meant one IP address). In light of these considerations the ASA concluded that the criteria by which votes would or would not be counted had not been made clear to entrants and as such the ad was in breach of the Code in this regard.

12.  American Apparel (UK) Ltd, 3 September 14

A website ad on www.americanapparel.co.uk and American Apparel’s Instagram page promoted a skirt which was featured in their “School Days” or “Back to School” range.  Both ads showed an image of a girl wearing the skirt and leaning forward.  The girl was photographed from behind from a low angle meaning that her crotch and buttocks were visible.  

Complaint / Decision

Two complainants challenged whether the ads were offensive and irresponsible as they considered that the ads were overtly sexual and inappropriate for a skirt advertised as school-wear. 

The ASA upheld the complaint.  As the focus of the ad was on the model’s buttocks and groin rather than the actual skirt being advertised, the ASA considered that the images objectified women and were accordingly sexist and likely to cause widespread offence.  Moreover, because of the low angle and “up-skirt” shots, the ASA was also of the opinion that the ads could potentially normalise a predatory sexual behaviour and were therefore irresponsible.

American Apparel argued that the ads were not part of any Back to School campaign and that the model was a 30 year-old woman who was not intended to look “underage”.  The ASA noted however that the skirt was featured in American Apparel’s “SCHOOL DAYS” or “BTS” (Back to School) ‘Lookbook’ and was referenced as such on Instagram.  In addition, the ASA considered that it was not possible to identify the age of the model because her face was not visible and, in that context, the model appeared as a schoolgirl.  The ASA therefore held that, as a result, the ads inappropriately sexualised school-age girls.

American Apparel further argued that the ads were only visible to fans that had chosen to follow them on social media, rather than the general public as a whole, and that these consumers were aware of the company’s reputation for creating provocative ads.  Irrespective of this, the ASA held that the images were irresponsible and likely to cause serious and widespread offence, particularly given that the brand appealed to young people including teenagers.

There have been a series of previously upheld complaints by the ASA against American Apparel for similarly offensive and irresponsible ads.  Examples include April 2013December 2012 and April 2012.  If American Apparel continue to ignore the ASA in this respect, there is a risk that the ASA may seek to take further action, although this sort of sanction is not generally applied to mainstream advertisers.  In addition to upheld complaints attracting adverse publicity, CAP can ask internet search websites to remove a marketer’s paid-for search advertisements when those advertisements link to a page on the marketer’s website that hosts non-compliant marketing communications. The marketer’s name and non-compliance may also be featured on a dedicated section of the ASA website and, if necessary, in an ASA advertisement appearing on an appropriate page of an internet search website.

MOTORING

13.  BMW (UK) Ltd, 17 September 2014

A tweet appeared on BMW’s UK Twitter feed and as a promoted tweet on the complainant’s news feed which stated “Capable of 0-62 mph in just 4.8 seconds, the new #BMW M235i promises you one hell of a ride: po.st/TEST”. The ad also contained an image with a blurred background that featured a red BMW turning a corner.

Complaint/Decision

One complainant challenged whether the image, the phrase “one hell of a ride” and the reference to quick acceleration made acceleration the central message of the ad and encouraged excessive speed.

The ASA upheld the complaint. BMW contended that, although the image in the ad depicted movement, it did not directly indicate excessive speed or acceleration. They also contended that the ad simply offered acceleration statistics for the car and did not in any way encourage motorists to drive fast or recklessly. The phrase “one hell of a ride” was, BMW claimed, a reference to the overall driving dynamics of the car including handling and comfort etc as well as sporty driving characteristics.

Under the Code, marketing communications must not condone or encourage irresponsible driving or depict speed in a way that might encourage motorists to break the law.  The ASA acknowledged the arguments put forward by BMW in relation to the imagery used in the ad and also noted that the highest speed quoted in the ad was 62 mph, which was within the national speed limit. They also agreed with BMW’s assertion that the phrase “one hell of a ride” did not necessarily relate to the use of excessive speed. The ASA therefore did not find the ad to be in breach of the Code in this regard.

However, the ASA pointed out that, pursuant to the Code, advertisers must not make speed or acceleration the main message of their communications. The ASA noted that the majority of the text in the ad focused on describing the acceleration capabilities of the car and that this language immediately preceded the phrase “one hell of a ride”. They ASA considered that cumulative effect of this and the image was enough to make speed and acceleration the main message of the overall ad and that it was therefore in breach of the Code.

This ruling by the ASA follows a similar adjudication on Jaguar Land Rover in July 2014and serves as a reminder for motoring advertisers in particular to give careful consideration when including any references to speed, acceleration or risky driving in their ads as the ASA will readily uphold complaints of this regard.

RETAIL

14.  ASDA Stores Limited, 10 September 2014

Two ads for Asda stores contained the following:

a)  A TV ad showed a selection of scones with a caption above one them stating “TESCO £1” and a caption above another which read “ASDA 50p 4 pack”. On screen text also stated “Prices independently checked 29 Jan. Includes Asda promotional prices. The image on the screen then widened to a broad selection of bakery goods and a voice-over could be heard saying “And with all these fresh from our bakery at 50p each, you’re better off shopping at Asda.”

b)  A national press ad featured a pack of Cathedral City Cheddar Cheese with on-screen text stating “Spot the difference? You’re better off at Asda - £3.50” and “Tesco £7.50”. A footnote also included text that read “Selected stores. Available while stocks last. Offer available from 8am on Friday 21st March 2014…Prices checked…on 20th March 2014. Includes Asda promotional price.

Complaint/Decision

Tesco challenged whether both ads (a) and (b):

1.  were misleading because they did not make it clear that they were comparing Asda’s promotional prices with Tesco’s everyday prices; and

2.  were misleading as they did not make it sufficiently clear that Asda’s promotional prices were available for a limited time only.

The ASA did not uphold either complaint.

1.  Asda pointed out that both ads included text stating “Includes Asda promotional price[s]” and argued that this satisfied the requirement for the ads to provide customers with enough material information to formulate an informed decision as well as making clear the basis for the price comparison. Asda also provided the ASA with evidence illustrating that the scones in question in ad (a) had been priced at 50p in Asda for 45 of the preceding 51 weeks and as such they considered 50p could be considered Asda’s ‘normal’ price.

The ASA acknowledged the points made by Asda and considered that consumers would understand from both ads that the respective products would be available at the advertised price on the date of comparison and, in respect of Asda’s promotional prices, would continue for a reasonable period afterwards. The ASA noted that the promotional prices for the scones and cheese continued for nine and four weeks respectively after the ads were published and was therefore satisfied that the products were available to consumers at the promotional period for a reasonable period of time. The ASA also felt that, although the ads made the general statements “…you’re better off shopping at Asda” and “You’re better off at Asda”, because they focused on specific and easily identifiable products, consumers would not understand these claims to be a general comparison between the stores but only in regard to the product prices mentioned.

In light of the above the ASA concluded that Asda had made the basis of the comparison clear and consumers would therefore understand that the Asda prices featured in the ad were promotional not everyday. The ads were therefore not in breach of the Code in this respect.

2.  On behalf of Asda, Clearcast informed the ASA that they only required grocery advertisers to include an end-date in an ad if a price promotion was due to end within seven days of the ad last airing. The ASA acknowledged this and also noted that both ads clearly highlighted that the prices quoted were promotional and they therefore considered consumers would only expect the prices to apply for a reasonable period of time rather than indefinitely. As discussed in point 1, the scones and cheese remained at the promotional price for nine and four weeks respectively following the ad, which the ASA considered a reasonable period of time.  In consideration of these points the ASA concluded that the ads were not misleading in this respect and did not breach the Code.

Comparative claims between the major supermarket retailers are common, as are complaints about these claims.  The small print is generally key with these ads, but care must be taken not to exaggerate the savings claims in the headline claim, and to ensure that comparisons are made on the basis of truly comparable products and prices. 

TELECOMMUNICATIONS

15.  Virgin Media Ltd, 17 September 2014

A TV, press ad and website promoted Virgin as a broadband supplier:

a) A TV ad featured Usain Bolt dressed as different members of a family using various devices (tablet, laptop, games console). The voice-over stated, "This is no ordinary household. It's a Virgin Media household. And because the Bolt family are doing more on the internet than ever before, we're supercharging our fibre optic network again. Giving them even more power." The voice-over also stated "We're committed to keeping our fibre optic network supercharged because we always want you to have the power you need ... you'll be able to download five times faster than BT's regular broadband …." The ad showed Sir Richard Branson again watching the computer-generated screen, which stated "5x FASTER".

On-screen text throughout the ad stated "Cabled areas only. Subject to survey. Minimum 18 month term and T&Cs apply. Rolling out to existing customers throughout 2014 & early 2015 ... Virgin Media peak average speed 48.8Mb SamKnows survey Feb 2014. BT ADSL2+ peak average speed of 9.56Mb OFCOM report Aug 2013. For verification go to virginmedia.com/ourspeeds. £7.50 for 6 months, £15.50 thereafter. Virgin phone line £15.99/month. New customers. £49.95 installation fee applies. DD/ebill price. Details at virginmedia.com".

b) One press ad was headlined "Our new supercharged network will let you download 5x faster than Sky and BT's regular broadband".

c) A second press ad stated "Download 5x faster than Sky and BT's regular broadband". The small print stated "Service available in Virgin Media areas only. ADSL2+ peak average speed of 9.56Mb (BT) and 8.9Mb (Sky). Ofcom's review of UK Broadband speeds published in August 2013, based on Ofcom May 2013 tests. Virgin Media peak average speed of 48.8Mb ...".

d) Claims on www.virginmedia.com stated "We've supercharged your broadband yet again" and featured a graph entitled "How we compare ... Our superfast broadband just got even faster (bad news Sky and BT)". The graph showed Sky and BT's broadband speeds compared with three of Virgin Media's speeds; 'Up to 50Mb', 'Up to 100Mb' and 'Up to 152Mb'. Each column displayed an icon which stated "We're now 5x faster!" "We're now 9x faster!" and "We're now 12x faster!" retrospectively. Underneath it stated "Our average speeds compared to Sky and BT's regular broadband". The sections entitled "Speeds explained" and "Proven by Ofcom" also included a comparison table which compared average download speeds offered by some of the main broadband suppliers.

Complaint / Decision

The following challenges were raised by BT and Sky:

1)  BT challenged whether the claim “you’ll be able to download five times faster than BT’s regular broadband” could be verified, since the web page referenced in ad (a) did not provide sufficient information in order to be able to verify the comparison.

2)  Sky challenged whether the claim “Sky and BT’s regular broadband” was misleading, as they claimed that it would be understood to mean broadband services which were regularly available, including Sky’s and BT’s superfast fibre services.

3)  Both BT and Sky challenged whether claims that consumers would be able to “download 5x faster than Sky and BT’s regular broadband” were misleading and could be substantiated as they believed that the claim was absolute and implied that download speeds available to all Virgin Media customers would always be 5 times faster than download speeds available to customers of Sky and BT. The complainants understood that this was not the case since the claim was based on average download speeds.

Complaints 1) and 3) were upheld but complaint 2) was not. 

1)  Although the ASA acknowledged that the ad a) included text showing that the basis of the comparison could be verified by going to “virginmedia.com/ourspeeds”, and that the webpage did provide details of the average download speeds obtainable over a 24 hour period both from Virgin Media and from its competitors, they felt that not enough detail was provided about the nature and methodology used for the comparison. This lack of detail and clarity, as well as the fact that further information was not provided to BT on request in this regard, meant that insufficient information was provided by Virgin Media to ensure that the comparison could be verified.

2)  The ASA noted that ads (b) and (c) made it clear that the comparison was with Sky’s and BT’s “regular” services rather than with enhanced speed products. In ad (d) specific comparative speed claims were made: “We’re now 5x faster!” but this was clearly labelled as being average speeds when compared to Sky and BT’s regular broadband services. Moreover, all three ads also stated in small print that the comparison was with ADSL2+ services. The ASA considered that consumers were unlikely to be misled into believing that the comparison included superfast services offered by Sky and BT and therefore did not find them in breach of the CAP Code.

3)  Although the ASA acknowledged that consumers were likely to be aware that broadband speeds would vary according to the time of day and that references to downloading “5x faster than Sky and BT’s regular broadband” did not explicitly state that all consumers would be able to download five times faster at all times, since the claims were written in absolute rather than conditional language, it was likely that consumers would believe that Virgin’s superfast broadband was always five times faster than that of its competitors. Since this was not in fact the case, the ASA held the claims to be misleading and in breach of various provisions of the CAP code.

There are regular complaints between the different broadband suppliers.  This adjudication is one of many similar decisions relating to the comparison of broadband suppliers focusing on broadband speeds, where there are often complicated qualifications which are not always made sufficiently clear.  This serves as a useful reminder to broadband suppliers that when comparing their services to those of other providers, the basis of any comparisons must be made explicitly clear and any absolute claims must be readily verifiable.

16.  Moneysavingexpert.com Ltd, 10 September 2014

An email ad from Moneysavingexpert.com described various promotions offered by third parties. Amongst other ads, the email promoted an offer available to “TalkTalk newbies” for a Simply Broadband deal on a 1 year contract. The ad covered the elements of the TalkTalk offer and various suggestions on how to obtain the best deal.

Complaint/Decision

A complaint was made by a journalist with an interest in consumer affairs. He brought four claims. He challenged whether the first two statements were misleading and could be substantiated:

1.  “B’band & phone equiv £15.25/mth + £75 Love2Shop (if line rent paid upfront)”. Although the ad mentioned “phone”, did customers understand that there were no calls included?

2.  “Included calls: None, but you can add ‘boosts’ for anytime to landlines”. Was this correct and/or misleading?

In the second two claims, the journalist also challenged whether the ad was misleading because:

3.  The ad did not make significant conditions clear, including that there was a £20 per month unbilled call limit and there was no information with regard to call charges.

4.  “...it’s effectively £108 over the year, equiv just £9/mth (£158 a year or equiv £13/mth)” had been calculated by subtracting the value of a £75 voucher from the actual cash price. Did customers understand that the £75 voucher could not be used to directly offset the cash price of the deal, as the voucher could only be spent in high street shops?

The ASA upheld complaints 1 and 3, and did not uphold claims 2 and 4.

1.  The ad contained a reference to “phone” in the headline, images of a landline phone and references to comparing prices to line rental deals and phone and broadband deals. The ASA concluded that the overall impression was that the package comprised broadband and inclusive phone calls in the advertised price, so was misleading. The text “Included calls: None…” was deemed to contradict the other messages, rather than clarifying them.

2.  It was possible to apply a ‘boost’ to the Simply Broadband package to make unlimited calls to landlines, so this phrase was not misleading and claim two was not upheld.

3.  The ASA firstly considered that customers would not expect to be restricted in the amount of calls they could make, or that they would need to make a payment for the calls prior to the end of the billing period. Secondly, the ASA concluded that the call charges should have been referred to in the ad itself rather than being accessible through a link to the TalkTalk website and a further link to the rates. The ASA considered these points to be significant conditions and the fact that these were not made clear, meant that the ad breached the Code.

4.  The ASA considered that the ad made the cost of the Broadband services clear at the outset, before introducing the idea that the cost of the service could be offset by spending the voucher to reduce other day to day costs. The ASA concluded that the explanation was clearly worded, and would not mislead consumers.

This adjudication highlights that advertisers of third party offers must use extra diligence in the wording of the ad and inclusion of the significant conditions. If the deal offered includes an unexpected element, a link to the third party’s website is not enough; significant conditions and call rates should be specified in the ad itself. This is particularly important in ads for telephone and broadband packages, where there are often relatively complicated conditions and requirements.