This article provides a selection of the most interesting ASA adjudications from June and a summary of the key issues considered in those adjudications. Daily deal offers continue to provide grounds for numerous consumer complaints. This month presents several adjudications relating to kgbdeals.com, following four last month. Complaints centred on the advertiser’s inability to substantiate that “before” prices and the associated savings claims were genuine.
In 2011 61% of the complaints received by the ASA related to misleading advertising. The CAP has this month issued guidance on how to avoid misleading advertising, which includes an overview of how the ASA judges whether an advert may mislead consumers and a checklist of common pitfalls to avoid.
This month also saw the first complaint upheld against a Twitter-based advertising campaign. The CAP published an article on this decision, highlighting that adverts must not be just potentially identifiable as advertising, but obviously identifiable as advertising. Various ways of identifying advertisements were noted, such as using the Twitter hashtags “#ad” or “#spon”. Advertisers may also develop their own symbols of identification, but the users of the relevant service must understand what their symbols stand for. Advertisers would need to take steps to inform audiences about their symbol to the extent that it becomes ‘well-established in consumers’ minds’. Finally, as of June 14 2012, the EU Register of nutrition and health claims made on foods has been extended to include a significant number of new claims. This will affect any advertiser making a health claim about food in a marketing communication, as demonstrated in the adjudication relating to Nature’s Best Health Products Ltd below. The change will impact how the ASA investigates such complaints going forward, but will not affect the ASA’s general approach to nutrition claims.
COMPUTERS AND TELECOMS
- Virgin Media Ltd, 27 June 2012 (The ASA concluded that claims relating to doubling broadband speeds were misleading)
- Vodafone Ltd, 20 June 2012 (The ASA considered various phone price plan conditions)
- YorHost, 13 June 2012 (The ASA investigated whether client testimonials feature on a website were genuine)
- Nike (UK) Ltd, 20 June 2012 (The ASA considered whether tweets were obviously identifiable as marketing communications)
FOOD & DRINK
- Red Bull Company Ltd, 13 June 2012 (The ASA considered whether adverts for an energy drink irresponsibly appealed to children)
- Nature’s Best Health Products Ltd, 13 June 2012 (The ASA considered whether claims that a multi-vitamin pill could aid reduction in tiredness and fatigue could be substantiated)
- Aston Manor Brewery Company Ltd, 13 June 2012 (The ASA upheld complaints that adverts for a cider drink were likely to appeal to people under 18)
- Adams Food Ltd, 13 June 2012 (The ASA investigated whether a TV advert for a cheese was irresponsible)
TRAVEL & TOURISM
- Travel Up Ltd t/s Bargain Flight Desk, 27 June 2012 (The ASA investigated the availability of flights at their advertised prices)
- STA Travel Ltd, 20 June 2012 (The ASA investigated the availability of advertised air fares)
- Argos Ltd, 27 June 2012 (The ASA considered whether an advert involving an alien character on a trampoline was irresponsible)
- The Sofa King Ltd, 13 June 2012 (The ASA held that an advertising slogan was likely to cause serious or widespread offence)
- kgb (UK) Ltd t/a kgbdeals, 13/20 June 2012 (The ASA considered whether various claims relating to daily deals offered on the kgb website were misleading)
- John Lewis Partnership plc t/a John Lewis, 13 June 2012 (The ASA held that an advert for a certain television adequately clarified the relevant technology)
- The Banks Group Ltd t/s BanksRenewables, 20 June 2012 (The ASA investigated claims in brochures for a proposed wind farm)
- News Promotions Ltd t/a Fabulous Bingo, 20 June 2012 (The ASA considered whether an advert for online bingo irresponsibly linked gambling to seduction, sexual success and enhanced attractiveness)
- DM Digital Television Ltd t/a DM Digital, 20 June 2012 (The ASA investigated herbal product efficacy claims in a teleshopping advert)
- Belron UK Ltd t/a Autoglass, 20 June 2012 (The ASA considered claims relating to windscreen chips cracking)
- Northgate Solar Controls, 13 June 2012 (The ASA considered that a direct mailing for anti-shatter window film, which included an image of one of the buses targeted in the July 7 bombings, was likely to cause serious offence and distress)
- Greenfield Creations Ltd, 13 June 2012 (The ASA upheld a complaint made by a cardboard coffin competitor)
- Coalition for Marriage Ltd, 13 June 2012 (The ASA investigated adverts for a marriage campaigning group)
COMPUTERS AND TELECOMS
- Virgin Media Ltd, 27 June 2012
This adjudication concerned a sponsored search engine advert for Virgin broadband services and a website advert which featured the athlete Usain Bolt. The adverts both referred to “doubling your broadband speed”. The website advert also containing a post-code checker and small print, which included the text “Cabled areas only” and “100MB customers will see price-cut instead of speed doubling”.
Complaint / Decision
A competitor and two complainants challenged whether the use of “doubling your broadband speed” was misleading because exclusions applied. The competitor further challenged whether the text of the small print was misleading and contradicted the main claim in the website advert. The complaints were upheld.
Although Virgin had obtained CAP Copy Advice in respect of the campaign, the ASA understood that this advice had referred to problems with using the “doubling” claim if there were any exclusions to it. The ASA considered that the use of the headline claim in conjunction with the reference to “my customers” in the advert body gave the overall impression that the advert was targeted to existing Virgin customers. As broadband speeds would not be doubled for 100MB and non-cable customers, the ASA held that the small print text directly contradicted the headline claim.
As the ASA considered that consumers would interpret the sponsored search engine advert as referring to all consumers who had or could access the Virgin service, this advert was also considered misleading.
Internet service providers must ensure they do not incorrectly imply that they are affecting the service of all consumers and take care to clarify to whom any advertisement is intended to refer.
- Vodafone Ltd, 20 June 2012
This adjudication concerned TV and website adverts for phone packages. Claims on the Vodafone website stated “A Vodafone Freedom Freebee on Pay as you go gives you over £50 of calls to standard UK mobiles and landlines (starting 01, 02, 03) plus standard UK texts and 50MB of UK web access - all for just £10”. The TV advert referenced the same package, with on-screen text stating “Lasts 30 days. Standard UK texts, web access & calls to mobiles & landlines (starting 01, 02, 03). Max one Freebee. Terms apply”.
Complaint / Decision
Telefonica challenged whether the advert was misleading for two reasons: firstly, because it believed that the “£50 worth” claim was based on standard tariff rates and very few consumers actually paid these rates, and secondly because the offer had run for 6 months and was therefore established at the £10 price, i.e. no longer worth £50. The complaints were not upheld.
The ASA noted that Vodafone had provided evidence showing that a significant proportion of their customers were on a standard tariff which charged the rates against which the price saving comparison claims were made. Vodafone also pointed out that all new pay as you go customers joined this standard tariff. As such customers would pay more than £50 on the standard tariff for the equivalent calls, text and data provided by the Freebee package, the ASA considered that it was not unreasonable to make the advertised price comparison claim in relation to the standard tariff joined by all new customers. It therefore concluded that the comparison was justified and the claims were not misleading.
The ASA understood that the standard and Freebee tariffs were separate products with different rates. The Freebee package was not a temporary offer. CAP and BCAP advised that when a new product was added to a pre-existing call plan, the new element could only be described as “free” for the 6 months following its addition. However the ASA considered that, in the context of a straight price comparison, it was reasonable to make a comparison claim as long as the respective prices were representative of what customers in those circumstances paid. On this basis, the ASA concluded that the claims were not misleading and it was reasonable for them to continue to appear in advertisements.
- YorHost, 13 June 2012
This adjudication concerned several client testimonials featured on the YorHost website. The testimonials referred to the service provided by the advertiser.
Complaint / Decision
One complainant challenged whether the testimonials were genuine, as he believed some were given to a related business which had ceased to trade (Web Mania). The complaint was upheld. The ASA noted that before customers submitted a testimonial, they were presented with text that clearly informed them that their testimonial would be used on the YorHost website. They could then decide whether or not to submit one. As the advertiser had also supplied details of the customers who had submitted the testimonials, the ASA considered that the testimonials were genuine and permission had been obtained to use them at the time that they were submitted.
YorHost admitted that the testimonials displayed had been added by customers of Web Mania, with some having been changed to refer to YorHost. Web Mania had been transferred to another company in 2007, then back to the original owner in 2011 under a voluntary liquidation agreement. It was then re-branded as YorHost. The advertiser submitted that because he was a sole trader, the testimonials were ‘for him’ and, because only the company names had changed but not the ownership, altering the testimonials was justified. However, the ASA noted that the CAP Code required testimonials to relate to the advertised product. Although the companies could be considered as the same, save for their differing names, the testimonials were posted under Web Mania’s name. The ASA therefore concluded that, despite the testimonials being genuine at the time of posting, they were likely to mislead on the basis that they were submitted for Web Mania before YorHost was created.
- Nike (UK) Ltd, 20 June 2012
This adjudication concerned two tweets from the official accounts of Jack Wilshere and Wayne Rooney, posted in January 2012. The tweet from Wayne Rooney stated “My resolution - to start the year as a champion, and finish it as a champion...#makeitcount gonike.me/makeitcount”. The tweet from Jack Wilshere stated “In 2012, I will come back for my club - and be ready for my country. #makeitcount.gonike.me/Makeitcount”.
Complaint / Decision
The complainant challenged whether both tweets were obviously identifiable as marketing communications. The complaint was upheld. The advertiser submitted that the inclusion of the Nike URL, combined with the Nike campaign strap line #makeitcount, made sufficiently clear that those tweets were advertising. The ASA also understood that, as part of their sponsorship deal with Nike, the footballers took part in marketing activities and submitted their own ideas on what to include in their tweet, although the tweet’s final content was agreed with the help of Nike.
The ASA drew attention to the Code rule that required adverts to be obviously identifiable as marketing communications, not just identifiable. This needed to be addressed in the context of Twitter, where the average user would ‘follow’ a number of people and therefore receive a number of tweets throughout a day that they might scroll through quickly. Although the tweets included the Nike URL and campaign hashtag (“#makeitcount”), the ASA considered that the Nike reference was not prominent and could be missed. Furthermore, consumers would not have already been aware of the ‘make it count’ campaign as this was launched around the same time that the tweets appeared, and might not have known of the footballers’ sponsorship deal with the advertiser.
The ASA concluded that the tweets did not contain anything that obviously indicated they were Nike marketing communications. The ASA suggested an example of such an indication would be “#ad”. As the tweets were not obviously identifiable as marketing communications, the ASA held that they breached the Code.
This is the first instance of the ASA upholding a complaint in relation to Twitter-based advertising. An earlier complaint in March 2012 concerning a campaign for SNICKERS featuring tweets by Katie Price and Rio Ferdinand was not upheld. Advertisers may need to begin to consider how to ensure their advertisements are obviously identifiable as such, with the inclusion of “#ad” or “#spon” hashtags being one way of doing so.
FOOD & DRINK
- Red Bull Company Ltd, 13 June 2012
TV and video-on-demands adverts for Red Bull Energy and its sugar-free version featured an animated group of penguins. A smaller penguin talking to a father penguin stated that “… I can make us penguins fly” by drinking Red Bull, because it “gives you wings”. When the smaller penguin tried to drink the Red Bull, the liquid was frozen. The father penguin stated “It's 40 degrees below, or did you think we were standing here for fun?” At the end of the advert, a can of Red Bull was pictured, with on-screen text stating “Red Bull gives you wiiings”.
Complaint / Decision
Complainants challenged whether the adverts were irresponsible on that basis that they would appeal to children. The complaints were not upheld. The sugar content of Red Bull Energy meant that it was subject to scheduling restrictions as a high fat, salt or sugar (HFSS) product and could not be advertised during or adjacent to children’s programmes. This was not applicable to the sugar-free version. The advertiser had directed Virgin Media Ltd to place the video-on-demand advert alongside adult programmes, also providing the ASA with a copy of their media plan. Virgin Media Ltd had been briefed that the target audience for the drink would be over 16s. The advertiser also complied with a voluntary industry code which meant their cans were labelled as “Not recommended for children, pregnant women and persons sensitive to caffeine”. It submitted that the humour of the advert was adult in nature, with an ironic tone. The advertiser’s response was endorsed by Clearcast, who also agreed with the view that the younger penguin was clearly not a child penguin and sounded as if in their late teens.
The ASA noted the scheduling of the adverts and their intended target audience. It considered that the voice of the younger penguin sounded like an older teenager or young man, and that the language used and the sarcastic nature of the dialogue emphasised the advert’s adult tone. Although the adverts were cartoons, the ASA held that they did not target children or imply that the drink was suitable for them. It therefore concluded that the adverts were not irresponsible and or likely to encourage an unhealthy lifestyle in children.
6. Nature’s Best Health Products Ltd, 13 June 2012
This adjudication concerned a national press advert for a multi-vitamin pill. The advert was sub-headed “Includes 8 nutrients that can contribute to the reduction in tiredness and fatigue”. It also included a comparison table which listed various nutrients and the amounts in which they were included in the product.
Complaint / Decision
One complainant challenged whether the claim that the product could aid a reduction in tiredness and fatigue could be substantiated. The complaint was not upheld. Commission Regulation (EU) No 432/2012 (the Regulation) establishes a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. The list includes the claim “contributes to the reduction of tiredness and fatigue” in relation to the eight nutrients listed in the advert. The Regulation came into force on 14 June 2012, so was not yet law at the time the advert appeared. However, following consultation with the Department of Health, the ASA acknowledged that (at that time) the Regulation provided an indication of which health claims could be authorised in due course.
The advertiser also submitted that the European Food Safety Authority (EFSA) had published a positive opinion in respect of the dietary intake of the nutrients effecting reduction of tiredness and fatigue. The ASA understood that a positive EFSA opinion should be regarded as a valid scientific opinion. The ASA also noted that the multi-vitamin contained sufficient quantities of each nutrient to satisfy the EFSA conditions of use for the claim. On this basis, the ASA concluded that the claim was not misleading.
- Aston Manor Brewery Company Ltd, 13 June 2012
This adjudication concerned YouTube video adverts promoting a cider drink called Frosty Jack. Three videos were posted on the Frosty Jack YouTube page. The first, titled “Anti-wasp”, featured a man killing a wasp with an aerosol and lighter. The second, titled “Anti-Gimmicky”, featured a man talking about the features of his car in a comically exaggerated fashion. The third, titled “Anti Busybody. Anti-controversial”, featured a man parking in a disabled space, who when questioned by another man said that he had Tourettes and shouted “T**t”.
Complaint / Decision
A member of Alcohol Concern’s Youth Alcohol Council challenged whether the adverts were likely to appeal to under 18s, in particular because the first advert showed a person behaving in an adolescent or juvenile manner. The complaints were upheld. The advertiser had already decided to change the communication of the Frosty Jack brand and take down the website at the time of the complaint. It also submitted that a) the website required visitors to complete an age verification form before accessing the home page, b) the videos were user-generated content and did not mention Frosty Jack at all, and c) the majority of this user-generated content had been uploaded before autumn 2010, which was before the ASA’s remit was extended to cover digital marketing. The ASA, however, considered that the videos constituted marketing material promoting the brand because they were clearly featured on the Frosty Jack YouTube page.
The ASA considered that the first video showed a person behaving in a juvenile and cruel manner. Although it did not feature the young man drinking or consuming the product, the ASA concluded that the action displayed irreverent and ‘laddish’ behaviour that was likely to appeal particularly to some (but not all) young people under 18. It therefore held that the advert was irresponsible and breached the Code.
The ASA noted that the second video featured a monologue where a character described his car and lifestyle in an exaggerated and boastful way that clearly did not match the modest reality seen in the background. The ASA considered that the monologue played on the character’s apparent lack of self-awareness, relying on a stereotyped characterisation of a misguided young man. It therefore concluded that the advert’s content and the type of humour used were likely to appeal to young people in particular, and held that the advert was irresponsible and in breach of the Code.
The ASA considered that the third video focused on mocking someone who had simply pointed out that the parking space should be reserved for the disabled, with the protagonist pretending to have Tourettes to insult them. It concluded that the humour was irreverent and juvenile and therefore likely to appeal particularly to some (but not all) young people under 18. The ASA also considered that the advert trivialised a neurological condition, potentially reinforcing negative stereotypes in relation to Tourettes. It also suggested that it was acceptable for anyone to use a disabled parking space. The advert was therefore held to be irresponsible and in breach of the Code.
- Adams Food Ltd, 13 June 2012
This adjudication concerned a TV advert for Pilgrim’s Choice cheese. It showed a woman opening her fridge door, then a male voice behind her said “Easy there, pilgrim.” The woman turned to see a miniature cowboy sitting on the kitchen counter, wiping an oversized cut throat razor on a tea-towel. He then shaved himself with the large blade. The cowboy then jumped off the counter and said, “I’ll let myself out” before running from the room. The end shot showed the cowboy, on his way out through the cat flap, pointing an oversized gun at a cat, saying “Back off, Mr Wiggles.”
Complaint / Decision
A total of 36 complainants challenged the advert for three reasons: (1) whether the ad was irresponsible and likely to cause harmful emulation among children, particularly because it was broadcast before 9pm; (2) whether the use of a gun in the final scene was offensive, irresponsible and trivialised gun crime; and (3) whether the ad was irresponsible, offensive and distressing because it trivialised knife crime and violent behaviour. The complaints were only upheld in relation to (1).
The ASA considered that older children would understand that the scenario depicted in the advert was surreal, as well as the shaving scene and the dangers of handling sharp objects, and did not consider that there was a risk of emulation. However, younger children might not understand the advert and could find the miniature cowboy character particularly intriguing. The ASA noted that the razor appeared very large and young children might not distinguish between a barbershop razor blade and common household object blades, thereby potentially be led to mimic the cowboy’s actions using common household objects in a manner that could seriously endanger their health. Although Clearcast had applied an ex-kids scheduling restriction, the advert was still being broadcast during the day. Although young children were likely be watching TV supervised by a parent or carer, the ASA considered that the potential for serious harm from emulation meant that the scheduling restriction was insufficient. The advert should have been given a 9pm timing restriction.
The ASA considered that the size of the gun, both in relation to the cowboy and the cat, and the fact that the cowboy was attempting to leave the house using the cat flap reinforced that the advert was surreal in nature. As the statement “Back off Mr Wiggles” would not give the impression that the cat was in danger and the scene was not reminiscent of images commonly be associated with gun crime, the ASA concluded that the overall tone of the advert was unlikely to trivialise gun crime or violent behaviour, and therefore unlikely to cause serious or widespread offence or be socially irresponsible.
The ASA noted that the barbershop razor appeared very large in relation to the miniature cowboy, but also that the razor was being used for shaving and not in a threatening way. As there was no depiction or suggestion of violence, the ASA did not consider the advert reminiscent of images commonly associated with knife crime. The ASA concluded that the overall tone of the advert was unlikely to trivialise knife crime or violent behaviour, and therefore unlikely to cause serious or widespread offence or undue fear or distress or be socially irresponsible.
TRAVEL & TOURISM
- Travel Up Ltd t/s Bargain Flight Desk, 27 June 2012
This adjudication concerned search results for flight prices displayed on two websites operated by the advertiser.
Complaint / Decision
A complainant challenged the availability of the flights to South Africa at the prices advertised. The complaint was upheld. In the context of a flight search tool which returned fares not specifically identified as ‘from’ prices, the ASA considered that consumers would expect all advertised flights to be available at the advertised prices. Although text on the website stated “The data displayed is NOT a display of AVAILABLE flights but is a database of prices”, the ASA understood that there would be times when customers could not take up the advertised prices due to fluctuations in availability. As the advert continued to appear during these times, the ASA considered that it should have stated that the advertised fares were extremely limited or could be withdrawn at any time. This would ensure that consumers clearly understood their prospects of being able to take up the offer.
Although the advertiser had provided evidence demonstrating that consumers had purchased flights for lower fares than those advertised, the ASA did not consider it had received sufficient evidence of the availability of the fares specifically referred to in the adverts. The ASA also noted that the dates of travel in the evidence provided differed from the dates requested by the complainant. It therefore concluded that the adverts were misleading on the basis that (a) they did not clarify that the advertised fares were extremely limited or could be withdrawn at any time and (b) the advertiser had not provided sufficient evidence to show the availability of the advertised fares.
- STA Travel Ltd, 20 June 2012
This adjudication concerned an email advertising air fares to Australia “from £399”.
Complaint / Decision
Two complainants challenged the availability of the advertised fares. The complaints were upheld. The £399 fares had been offered as part of a ‘Flash Sale’ on the day the email was sent out. There were a set number of fares available at £399 (to Sydney or Melbourne), with the available fares selling out within two hours. The prices then reverted to £599.
The ASA noted that the website had been updated to reflect the fact that the price had reverted to £599 soon after the discounted fares had sold out. The advertiser had also posted regular availability updates on Facebook and Twitter. Both the email and website also stated that availability was limited, which would usually be sufficient qualification because consumers generally understood that fares advertised as “limited” were likely to be available only on specific flights within specific travel periods. However, in this case the ‘flash sale’ had been funded by the advertiser itself. As the availability of the advertised fares was therefore at the advertiser’s discretion, the ASA considered that the number of £399 fares available had been very limited and this therefore constituted material information for consumers.
Although the ASA acknowledged that the advertised fare was valid on the day and time specified in the email and that the advertiser had attempted to make consumers aware of the limitations on availability, it considered that the omission of information on the specific number of £399 fares resulted in the email exaggerating the likelihood of consumers being able to obtain the advertised fare. The ASA therefore concluded that the advert was likely to mislead.
This appears to raise the standard for advertisers in relation to self-funded limited availability offers. Despite the advertiser’s website stating “very limited seats available”, the ASA’s decision that the advert exaggerated consumers’ ability to take advantage of the offer may result in advertisers having to state exactly how many promotional fares are available in such situations.
- Argos Ltd, 27 June 2012
This adjudication concerned a TV advert for a range of summer products. One scene in the advert showed an alien child performing sideways somersaults on a trampoline.
Complaint / Decision
One complainant challenged whether the advert was irresponsible on the basis that the trampoline was being used in a dangerous manner. The complaint was not upheld. In its response Argos highlighted the various safety precautions it had incorporated into the advert, such as showing the trampoline with a safety net around it and with parental supervision. The ASA noted these precautions, as well as the fact that the scene was brief and in the background of the advert.
Clearcast had also advised Argos on this particular aspect of the advert. The ASA acknowledged Clearcast’s view that the alien character was using the trampoline for its intended purpose and with the appropriate precautions. The ASA also considered that it was sufficiently clear to viewers that the alien character constituted a surreal interpretation of a child using a trampoline and that it would not be physically possible to replicate the somersault manoeuvre. The ASA concluded that the advert was not irresponsible, as viewers would understand they should not attempt to use the trampoline in the same way as the alien character.
- The Sofa King Ltd, 13 June 2012
A regional press advert carried the slogan “The Sofa King – Where the Prices are Sofa King Low!”
Complaint / Decision
Three complainants challenged whether the slogan was offensive and unsuitable for general display. The complaints were upheld. A decision on this advert was published by the ASA in February (see our February Snapshot here), but the wording of the decision was subsequently changed (although not the decision to uphold the complaints).
The ASA noted that the slogan used the advertiser’s company name, but considered that when spoken it sounded like a derivative of the swear word “f***”. The ASA therefore concluded that the advert was likely to cause serious or widespread offence. This new decision specifically refers to the slogan sounding like a swear word when spoken or heard, rather than it being interpreted as a derivative of it.
- kgb (UK) Ltd t/a kgbdeals, 13 / 20 June 2012
Five adjudications concerned website adverts for various products: a child’s racing car bed, a pair of boots, a clock radio, a VIP club experience and a two night hotel break. Each advert contained text in the format “£… for [product] worth £… - save …%”.
Complaint / Decision
The complainants challenged whether the claims “worth £…” were misleading and could be substantiated. Each complaint was upheld. The advertiser submitted that the claims were based on the recommended retail prices (RRPs) provided by the merchants on behalf of whom they advertised the products. The ASA considered that the claim would lead consumers to expect that the product was usually sold at that price. In each case, the advertiser failed to provide evidence or supporting documentation that this was the case. Despite, in two cases, providing evidence that merchants sold the products at the prices set out in the claims, the ASA concluded that this did not constitute ‘robust’ evidence that this was the price was which the product was generally sold. The ASA noted that one of the products in question was available from several other retailers at a lower price. Advertisers should therefore be aware that, when making such price claims, demonstrating that a product is sold at a higher price by one retailer may not constitute sufficient evidence of substantiation.
One adjudication concerned value and savings claims for sunglasses. The advertiser was again unable to provide evidence that the products were usually sold at the price claimed. Despite providing two links to online retailers that displayed the RRPs for the sunglasses as more than the price claimed, the ASA understood that all those sunglasses were in fact being sold at discounted prices of less than the price claimed. The advertiser also provided two links to listings of the products by the merchant at the prices claimed on a large internet retailer’s website. However, the ASA considered that a) the date on which the products were listed post-dated the advert, and b) listings on a retail website did not constitute sufficient evidence that the products were usually sold at that price. On this basis, the offer was held to be misleading.
Four adjudications contained claims that the ASA concluded were misleading. One advert, relating to another hotel break, was found to be misleading because it omitted the fact that the hotel in question was a specialist hotel for visually impaired people. The ASA considered that this constituted significant information because it was likely to affect a consumer’s decision to book with that particular hotel. Another deal was found not to include a particular type of beauty treatment specifically referenced as included in the advert. A third deal advert contained a photograph that was not an image of the exact product on offer, while a fourth email and website advert did not actually include various types of alcohol listed as being available as part of a VIP club experience.
In three cases, following the complaints, the advertiser was unable to confirm the claims made in the adverts with the relevant merchants. It is clear that the ASA will continue to require advertisers to produce robust evidence that they can provide the deals exactly as advertised, whether or not this is dependent on a merchant third party.
14. John Lewis Partnership plc t/a John Lewis, 13 June 2012
This adjudication concerned a website advert for a television. The advert, headed “Sony Bravia KDL32EX523 LED HD 1080p TV”, included the text “You'll experience smooth viewing of fast-action sports and movies with Motionflow XR 200, delivering the action at the equivalent of 200 frames per second, providing less judder and blurring. Every pixel of your 2D or 3D picture is enhanced by Sony’s unique picture technology. Due to its edge-lit LED display, you’ll experience enhanced colour intensity, high contrasts and improved energy efficiency, all within its ultra slim screen design.”
Complaint / Decision
One complainant challenged whether the advert was misleading on the grounds that they believed the television was LCD with LED (light emitting diode) edge-lit technology, not a full LED screen. The complaint was not upheld. The ASA obtained an opinion from Ofcom, who agreed with the advertiser’s submission that “LED TV” was a term used by the majority of the electrical appliance industry to describe TV sets with LED backlighting (also referred to as “edge-lit”).
The ASA noted that the only domestic TV sets described as “LED TVs” were LCD screen with LED backlighting. It did not consider that the term “LED TV” implied that the screen was comprised of LEDs. As the advert described the technology used as “edge-lit LED display”, the ASA considered that it adequately clarified the technology used in the TV. It therefore concluded that the advert was not misleading.
- The Banks Group Ltd t/s BanksRenewables, 20 June 2012
This adjudication concerned two brochures for a proposed wind farm. One brochure featured photomontages of virtual images of the proposed wind farm from various viewpoints, illustrating the visibility of the turbines. It also contained a ‘decibel scale’ which ranked various noises in relation with the decibel levels of the proposed wind farm. The second brochure contained various claims relating to the electricity the farm would provide and effects on the surrounding landscape.
Complaint / Decision
One complainant challenged whether the brochure gave a misleading impression of the visual, noise, energy provision and landscape potential impacts. None of the complaints were upheld. The advertiser queried whether the second brochure was within the ASA’s remit as it was a statutory document required for submission as part of the planning application. This document, a Non-Technical Summary, was intended to summarise the main findings of an environmental assessment in a clear and concise format that would allow the public to understand the development proposal and its anticipated environmental outcomes. The ASA considered that this did constitute advertising material because it had been distributed to local residents and was available for download from the advertiser’s website. It was therefore subject to the CAP Code.
The advertiser provided evidence from the independent landscape architect who had produced the photomontages, substantiating the appearance of the turbines in the images. It also produced evidence from government publications to substantiate the claims in relation to the noise and energy provision claims.
In relation to the effects on the landscape and ecology of the area, the advertiser provided evidence that it had followed industry best practice guidance and legislation in carrying out the relevant landscape and visual impact assessment and ecological surveys. The ASA noted and agreed with the advertiser’s submission that the raising of objections and concerns did not necessarily render those objections correct and valid. The ASA therefore concluded that the various claims had been substantiated and were not misleading.
- News Promotions Ltd t/a Fabulous Bingo, 20 June 2012
A TV advert for an online bingo game featured two women sitting in a dull looking café, with the first woman on a laptop and wearing drab clothing and glasses. The second woman, wearing make-up, jewellery and bright clothing, looked at the first woman and said “Er, what are you doing?” with a smirk. The first woman replied “Joining new Fabulous Bingo. There's a 200% welcome bonus so if deposit a tenner, I get 30 quid to play with!”. After pressing a button on the laptop, confetti was released and the first woman was transformed into bright clothing and make-up. The voice-over said “Plus when you join you get this Calvin Klein lip gloss worth £15” and “join today and feel Fabulous in a click at Fabulousbingo.co.uk.” The advert ended with an attractive male waiter winking at the camera.
Complaint / Decision
The Gambling Reform & Society Perception Group challenged whether the advert irresponsibly linked gambling to seduction, sexual success and enhanced attractiveness. The complaint was upheld. The advertiser submitted that the actresses who appeared in the advert had been the faces of Fabulous since March 2011, and that transformation moments triggered by promotional beauty products had been a recurring theme in adverts for the brand ever since. However, the ASA considered that the average viewer would probably not be aware of the characters or that the advert was following a previous theme in connection with the Fabulous magazine brand. The ‘transformation’ scene should therefore be viewed purely within the context of the advert itself.
The ASA considered that the advert did not imply an increased likelihood of seduction or sexual success as a result of playing the branded online bingo game, given that there was no interaction shown between the female characters and the waiter. However, it considered that the overt transformation from dowdy to glamorous implied that playing the bingo game could result in enhanced attractiveness and an improvement in self-image, despite it being unlikely to be interpreted literally. The ASA therefore concluded that the advert directly linked the online bingo game with enhanced attractiveness, thereby breaching the Code.
- DM Digital Television Ltd t/a DM Digital, 20 June 2012
This adjudication concerned a teleshopping advert for herbal products to treat conditions such as eczema and acne. The advert made various efficacy claims for the products in Urdu, beginning with a presenter welcoming a guest and explaining that viewers should contact her for free advice. She then stated “One point to note is that all the products being talked about are natural products and using these brings no harm”, before explaining that viewers should take advice from a GP before using any of the products that were to be discussed. On-screen text throughout the advert stated “This programme does not give any medical advice and viewers should seek advice from their GP before taking any treatment or trial of any herbal products. Please seek your GP’s advice before any treatment.”
Complaint / Decision
One complainant challenged whether the efficacy claims made for the products were misleading and could be substantiated, and the ASA challenged whether the advert offered medical treatments in a teleshopping broadcast (which constituted a breach of the Code). Both complaints were upheld. Although the advertiser believed that the translation from Urdu to English had affected the meaning of some of the comments made by the guest in relation to treatment of various ailments, the ASA considered that there were clear references to medical conditions and treatments for them. The advertiser had not provided evidence demonstrating that the products mentioned could successfully treat those conditions or problems.
Although the advert contained warnings to seek advice from a GP before starting a treatment, the ASA stressed that the Code expressly prohibited teleshopping for medical treatments. The efficacy of the advertised products was irrelevant. The ASA therefore concluded that the advert breached the Code in this respect.
Although the advertiser had no plans to use the advert again in the future, also submitting that it was only meant to be for educational and entertainment purposes, the ASA still warned it to ensure it did not do so.
- Belron UK Ltd t/a Autoglass, 20 June 2012
This adjudication concerned a radio advert for Autoglass windscreen chip repair. The advert stated “…He’d been ignoring a chip on his windscreen ... but when he turned on the air con in his car, ‘crack’, the chip split right in front of them ... He wasn’t too happy especially when I explained that every chip will eventually crack and if he’d called us when he first saw it, we could have repaired it instead.”
Complaint / Decision
Twelve listeners challenged whether the claim “every chip will eventually crack” was misleading and could be substantiated; three challenged whether the claim “when he turned on the air con in his car, ‘crack’, the chip split right in front of them” misleadingly implied that a car’s air conditioning could crack existing windscreen chips; and seven challenged whether the advert was scaremongering in order to sell the service by claiming that all chips would crack. None of the complaints were upheld.
Autoglass had provided the ASA with a report on glass damage by their in-house scientists, various independent studies and research carried out by other institutions, studies they had commissioned and customer survey data. The Radio Advertising Clearance Centre had also endorsed Autoglass’s response to the ASA. The ASA took particular note of the customer survey statistics in its conclusion that the claim “every chip will eventually crack” had been substantiated. This data showed that where customers had noticed a chip, growth into a crack usually happened within weeks or months. The ASA considered that the claim made clear that it was not possible to predict a time scale for cracking, but that it would happen eventually.
The ASA noted that the research demonstrated how sudden temperature changes might cause a chip to become a crack. It also considered that the advert clearly referred to a possible scenario and was not a claim that switching on air conditioning would always cause a chip to crack. The ASA therefore concluded that this claim was unlikely to mislead consumers.
As the substantiation provided by the advertiser had shown that a chip would probably develop into a crack (and could do so within a relatively short timeframe), the ASA considered that the advert was not ‘scaremongering’. The intention of the advert was to make listeners aware that early repair was likely to save them time and money. The ASA therefore concluded that the advert did not breach the Code in this respect.
- Northgate Solar Controls, 13 June 2012
This adjudication concerned a direct mailing for an anti-shatter window film. Text on the mailings envelope stated “How safe are you behind your glass? Clear anti shatter window film helps to: Prevent flying glass from explosions; Stop spalling if glass is hit; Reduce risk by ensuring glass breaks safe; Upgrade glass to comply with BS6206 Standards”. The envelope featured an image of the Tavistock Square bus targeted in the 7 July bombings, with the text of the mailing alluding to an increased risk of terrorism and bomb attacks during the Olympic games.
Complaint / Decision
One complainant challenged whether the advert was offensive and caused undue fear and distress. The complaint was upheld. The advertiser submitted that a London-based customer had been informed by the Met Police that it required the application of a bomb blast film before the Olympics due to the increased risk of terrorism. The ASA contacted the Met Police about the mailing, who explained that they did provide protective and counter terrorism security advice to support London businesses. However, this work was part of their usual business and not specifically linked to the Olympics. The ASA noted that the application of transparent polyester anti-shatter film to glass was a recommended measure for prevention of bomb attack damage.
The mailing indicated that the highest level security alert (critical) had been issued in advance of and during the Olympic Games. However, the Home Office clarified that in fact a ‘substantial’ alert was currently in place, though this was subject to change. The ASA noted that, although businesses were generally advised that they might wish to install glass security film as part of general security precautions, this advice was not specifically related to the Olympics. The ASA also considered that the mailing targeted many businesses outside central London that were at a low risk of any potential security risks surrounding the Olympic Games; the complainant was based almost 50 miles away from the nearest Olympics venue. Given the mailing’s references to “suicide bombers” and “undetected sleeper cells”, the ASA concluded that the tone of the mailing had exaggerated the potential threat faced by businesses due to the Olympic Games, thereby potentially causing undue fear and distress to recipients.
The ASA considered that the inclusion of the image of the Tavistock Square bus targeted in the 7 July bombings was wholly inappropriate and shocking. This feature was therefore likely to cause serious offence and distress.
- Greenfield Creations Ltd, 13 June 2012
This adjudication concerned various claims on the advertiser’s website in relation to cardboard coffins. The claims stated “The Greenfield Creations cardboard coffin is a strong, sturdy, but lightweight coffin which has been developed to meet the needs of those who require an environmentally friendly and biodegradable coffin. Over the last few years demand for ‘greener’, and more cost effective, funerals has increased dramatically”. Further text stated “Cardboard coffins are load tested up to 23 stone”.
Complaint / Decision
Colourful Coffins challenged whether the claims relating to the coffins being a) environmentally friendly and biodegradable and b) load tested up to 23 stone were misleading and could be substantiated. Both complaints were upheld. Although the advertiser submitted that the coffins consisted of cardboard, glue and tape (all of which were biodegradable) and that any further features were made from cotton or natural rope, some further features used for cremations included non-biodegradable brass-effect handles and lining. The ASA considered that consumers would understand the claim to refer to the whole product, including all fixtures such as handles and liner. The ASA therefore held that the evidence provided by the advertiser was not adequate to support the “environmentally friendly” claim in relation to the full life cycle of the product, even for just the cardboard, glue and tape. It therefore concluded that the claim “environmentally friendly and biodegradable coffin” had not been substantiated and was misleading.
In relation to the load testing claim, the ASA noted the information provided by the advertiser regarding a test conducted on their product during two exhibitions. The information consisted of photographs of the product being tested at the exhibitions and an invoice for 150 kg of gravel. However, the ASA considered it had not seen any evidence demonstrating that the product had, for example, been subject to any controlled independent tests. It therefore concluded that the substantiation submitted was not adequate to support the claim and the advert was therefore misleading in this respect.
The ASA also considered what an average consumer would take into account in their understanding of a claim in an adjudication relating to the complainant (Colourful Coffins) in March (see our March ASA Snapshot here). In that case Greenfield Creations had complained that Colourful Coffins’ use of the claim “100% recycled cardboard” was misleading. The ASA held that the claim was misleading because the outer edges of their cardboard coffins were made of non-recycled paper. This serves as a reminder to advertisers to ensure that any “absolute” claims can be substantiated.
- Coalition for Marriage Ltd, 13 June 2012
This adjudication concerned four adverts for the campaigning group Coalition for Marriage. Two adverts were press adverts, published in Country Life Magazine and the Daily Telegraph, and two adverts were featured on online blogs. The press adverts featured photos of couples on their wedding day and stated “… 70% of people* say keep marriage as it is. We agree: politicians should not be meddling with one of our great national institutions. 190,000 people have signed our petition in favour of keeping the definition of marriage unchanged. Whilst fully recognising the rights and views of others, we’re asking you to support us…” Small print stated “(*Source: ComRes poll for Catholic Voices)”.
The online adverts also contained similar images and text, stating “70% of people* say keep marriage as it is ... (Source: ComRes poll for Catholic Voices)… “Help us keep the true meaning of marriage. PLEASE SIGN THE PETITION Click here”.
Complaint / Decision
Twenty-four complainants challenged whether the claim “70% of people say keep marriage as it is” was misleading and could be substantiated; eleven objected that the adverts were offensive; and three objected that the press adverts were misleading on the basis they did not make clear that the aim of the online petition was to oppose same sex marriage. None of the complaints were upheld.
The ASA noted that adverts clearly stated on which poll the “70%” claim was based. 70% of respondents had agreed with the statement “Marriage should continue to be defined as a life-long exclusive commitment between a man and a woman”. The poll related to an online panel of 2004 people, with the data weighted to be representative of the general population, and was publicly available on the ComRes website. Although some complainants believed the claim was misleading because it did not reflect the results of other polls on the issue of same sex marriage, the ASA considered the claim accurately represented the responses received to the poll conducted by ComRes. The claim source was sufficiently prominent to ensure that viewers would be aware that it only referred to the results of that poll, with the ASA also noting that most people would expect polls relating to matters of opinion to lead to different results (depending on the exact wording of the question and the context in which it was asked). The ASA therefore concluded that this claim was not misleading.
In relation to the complaints that the adverts were homophobic, the ASA considered that the adverts focused on the current legal definition of marriage and its history. Although some people might disagree with the advertiser’s opinions on same sex marriage, the ASA concluded that the adverts themselves did not contain anything likely to cause serious or widespread offence.
The advert had appeared in the context of a high-profile public debate on same sex marriage. The ASA considered that readers would infer from the references to keeping marriage “as it is” that the advertiser was opposed to same sex marriage, hence the petition. The petition was on the advertiser’s own website, which also contained further information about their campaign. The ASA therefore concluded that the advert was unlikely to mislead readers in respect of the online petition’s aim.