ADJUDICATIONS

FOOD AND DRINK

1. Hold Fast Entertainment Ltd t/a The Garage, 27 August 2014 (a complaint that various ads promoted excessive or underage drinking was upheld)

2. Wells & Young Brewing Company, 27 August 2014 (a TV ad for Estrella beer was found not to encourage immoderate drinking or link alcohol to sexual success)

HEALTH AND BEAUTY

3. Nicofresh Ltd, 6 August 2014 (an ad promoting e-cigarettes was held to be likely to cause widespread offence on the grounds of race and age)

4. Cells4Life Group LLP, 6 August 2014 (a complaint relating to claims in a brochure and on a website about a stem cell storage company was partially upheld)

5. E&L Distribution Ltd t/a LeoLites, 13 August 2014 (an ad promoting a brand of e-cigarettes was found to be misleading for making beneficial health claims that had not been substantiated)

6. LensWay Inc, 27 August 2014 (an ad for contact lenses and glasses was found to be misleading as it did not include compulsory handling and insurance charges in the listed price) 

LEISURE

7. Sporting Index Ltd, 6 August 2014 (an ad promoting gambling which showed a digitally manipulated image of the ‘Christ the Redeemer’ statue was found to be likely to cause serious offence and also to link gambling with sexual success)

8. Paddy Power plc, 13 August 2014 (a newspaper ad was found not to be offensive for using sexually suggestive imagery and double entendre in its text)

9. British Midland Regional Ltd, 20 August 2014 (a prize promotion on a Facebook page was found to break the Code for falsely claiming that a consumer would win a prize or equivalent benefit if they carried out a particular act, as an extra cost would in fact be necessary to claim the prize)

10. Ladbrokes plc t/a Betdaq, 27 August 2014 (a gambling website promotion was found to be likely to cause serious offence because it featured a digitally manipulated image of the ‘Christ the Redeemer’ statue)

FINANCIAL

11. Barclays Bank plc, 13 August 2014 (a radio ad for Barclays bank was found not to be in breach of the Code as its content was obviously distinguishable from editorial content)

OTHER 

12. TNT Post UK Ltd, 27 August 2014 (the ASA upheld four out of five complaints that challenged whether ads promoting TNT’s postal service were misleading)

RETAIL

13. Wm Morrison Supermarkets plc, 6 August 2014 (a TV ad for beef burgers was found to condone poor nutritional habits, especially in children)

14. Winning Deals Ltd, 6 August 2014 (two ads for binoculars were found to break the Code because they made claims about the product which could not be substantiated and were misleading in claiming that every reader would receive a free pair of binoculars)

15. ACHICA Ltd, 6 August 2014 (an email and website ad were found to be misleading for including claims about RRPs which could not be substantiated)

16. Tesco Stores Ltd, 6 August 2014 (a series of TV and press ads were found not to be misleading because they did not portray unrealistic livestock conditions or mislead in respect of where Tesco sourced their milk from)

17. Tesco Stores Ltd, 20 August 2014 (a nationwide press ad for a product promotion was found not to be in breach of the Code as it did not mislead in respect of the availability of the products in question)

18. Lidl UK GmbH, 27 August 2014 (a complaint relating to the availability of a product subject to a promotion was not upheld)


TELECOMMUNICATIONS 

19. Virgin Media Ltd, 13 August 2014 (a complaint that a press ad comparing a Sky bundle with a Virgin Media bundle was misleading as it was an unfair comparison and exaggerated the savings that could be made by switching to Virgin Media was upheld)

FOOD AND DRINK

1. Hold Fast  Entertainment Ltd t/a The Garage, 27 August 2014

Four ads were placed by The Garage nightclub in Glasgow, three of which were Facebook ads and one on the advertiser’s own website. The first two ads invited Facebook users to “Like” and “Share” to win a VIP night out.  The third ad included an image of three young women, who were laughing and sticking their tongues out, wearing T-shirts with the text “#tag” written on them. The fourth ad invited visitors to the advertiser’s website to fill out a “gamecard” to win a trip to New York when buying a vodka drink, including the text:  “After buying 1, you simply fill out the card that comes with it, and pop it in a box. It’s that simple! 1 entry for every drink bought!”.

Complaint/Decision

The complainant challenged whether:

1. the method of entry for the competitions in the first two ads resulted in the advertising of alcoholic drinks to those under 18 years of age;

2. the women in the image in the third ad appeared to be under 25 years of age; and

3. the promotion in the fourth ad encouraged excessive drinking.

The ASA upheld the complaint on all three grounds and held that the ads must not appear again in their current form. The reasons given for the decision were as follows:

1. CAP Code rule 18.15 requires that ads must not be directed at people under 18 through the selection of media or the context in which they appear and specifically that no medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age. Although it was not disputed that this requirement was met in relation to UK Facebook Users and the ASA also accepted that only 3% of the initial audience of the first two ads who had ‘liked’ Hold Fast’s entertainment page could therefore be under 18, since Hold Fast had stipulated that the initial recipients of the ads needed to ‘like’ and ‘share’ them in order to enter the competition, they could not be sure that the final audience for the ads comprised less than 25% of people under 18 years of age. Moreover, although it was possible for advertisers to restrict content posted on Facebook so that it was only visible to those over 18 years of age, Hold Fast Entertainment had not chosen to do so and were therefore found to be in breach of the Code.

2. Ads for alcoholic drinks and those that feature or refer to alcoholic drinks must not show people who are, or appear to be, under the age of 25 in a significant role. Although the ASA acknowledged that the only reference to drinks in the ad was to “£1 DRINKS”, which did not explicitly refer to alcohol, since it was used in an ad for a nightclub, it was implicit that such drinks would be alcoholic. Since the women who were the focus of the ad appeared to be under 25, with no evidence having been provided by Hold Fast to the contrary, the ASA concluded the Code had been breached.

3. Since participation in the competition involved completion of a “gamecard” which was obtained by purchasing a shot of vodka or a vodka mixer, and the competition allowed multiple entries by submission of more than one gamecard, the ASA considered that the promotion encouraged participants to purchase and consume a number of drinks in order to increase their probability of winning the competition, thereby encouraging excessive alcohol consumption and breaching the code.

This ruling reiterates the stringent requirements set out by the Code in respect of ads promoting alcohol which in any way target or feature people under eighteen years of age, and illustrate the tension between companies seeking new ways to advertise alcohol using social media and staying on the right side of the relevant provisions in the Code.

2. Wells & Young Brewing Company, 27 August 2014

A TV ad, promoting Estrella beer, showed various scenes of a group of friends enjoying an afternoon in the sun playing table tennis and preparing food whilst drinking and holding bottles of Estrella. At dinner the whole group were shown drinking Estrella. In the evening a band then performed to the group who were dancing and drinking. At the end of the ad one couple were shown kissing as the voice-over and on screen text stated “Mediterraneamente. Estrella”.

Complaint/Decision

The Youth Alcohol Advertising Council challenged whether the ad was irresponsible because:

1. it encouraged irresponsible and immoderate drinking; and

2. it linked alcohol to seduction, sexual activity and sexual success.

The ASA did not uphold either complaint.

1.    The ASA noted that the ad clearly took place over a full day and evening. Therefore, whilst some characters were shown to have consumed several drinks, the amount of alcohol imbibed was not held to be excessive in relation to the period of time over which they appeared to be consumed. Wells & Young highlighted that only one bottle of Estrella per adult was shown during the dinner scene. The ASA also agreed with Wells & Young’s assertion that those drinking appeared to do so in a controlled manner by taking occasional sips, the ASA further considered that they did not in any way appear to be intoxicated. For these reasons, the ASA concluded that the ad did not encourage irresponsible or immoderate drinking and thus did not breach the Code.

2. The ASA considered that the ad clearly established a familiar and relaxed group of friends. They also did not feel that the brief dancing scene featured in the ad was sexually suggestive. Wells and Young contended that they did not intend the kiss to be a passionate one but more so as one between an established coupled. The ASA concurred with this analysis and did not consider the kiss to be sexually charged, but instead playful and flirtatious in tone. Accordingly, the ASA concluded that the ad did not link alcohol with sexual success and was therefore not in breach of the Code.

This adjudication follows a series of other rulings on ads for Estrella beer fromNovember 2010November 2011 and October 2012.  It illustrates that, although the ASA does advise caution when ads use alcohol as a social medium, they are still nonetheless prepared to take a pragmatic approach when determining how fundamental to the social situation the presence of alcohol is. This issue was also addressed in a ruling on Jagermeister in July 2014.

HEALTH AND BEAUTY

3. Nicofresh Ltd, 6 August 2014

A billboard poster for a brand of e-cigarettes featured an elderly white woman sitting alongside a young black man. The woman held an electronic cigarette and was staring directly at the camera while the man had his arm around with his eyes closed. Text across the ad stated “NO TOBACCO. NO TABOO”.

Complaint/Decision

1.   Six complainants challenged whether the ad was offensive on the grounds of race as they felt it implied that an interracial relationship was socially unacceptable.

2.  Four of the complainants also challenged whether the ad was offensive on the grounds of age, because it implied that a relationship between an elderly woman and a younger man was socially unacceptable.

The ASA upheld both complaints. Nicofresh contested that relationships between people of different races or significantly different age groups had, within living memory, been subject to a social taboo. They argued that their ad illustrated that prejudice regarding relationships of these sorts no longer existed and that therefore, by linking the smoking of e-cigarettes to this, they were simply showing there was also now no taboo about this form of smoking.

However, the ASA was unequivocal in its conclusion that the ad would in fact be interpreted by consumers to mean that, contrary to the relationship depicted, smoking e-cigarettes was not a taboo. The ASA considered that the ad portrayed a relationship between different age or race groups as being something that was socially unacceptable, and as such found that the ad was likely to cause serious or widespread offence on the grounds of race and age.

This ruling reminds advertisers that when ads include a subtle message or one which could easily be misconstrued, they must be aware of what that alternative perspective could be and whether in turn it would be likely to fall foul of the Code. 

4. Cells4Life Group LLP, 6 August 2014

A brochure and website for stem cell storage company Cells4Life featured various claims about the company which were challenged by competitor company, Precious Cells International Ltd.

Complaint/Decision

The complainant challenged whether:

1. a claim on the website “Cells4Life stores more UK stem cells than any other private bank” was misleading and could be substantiated;

2. the claim “Cells4Life is the only one to store whole cord blood. This superior method can greatly increase the success of treatment should your child need it” was misleading and could be substantiated, as they believed that this method of storage was outdated and not a superior method; and

3. the claim “Cells4Life operates its collection service 24 hours a day, 365 days a year” was misleading, because they had attempted to contact Cells4Life out of hours and had not received a reply.

The ASA upheld claim (2) but not claims (1) and (3).

The ASA considered that consumers would interpret the claim in (2), “Cells4Life is the only one to store whole cord blood. This superior method can greatly increase the success of treatment should your child need it,” as meaning that this method was superior to other methods of cord blood storage. Since there appeared to be no general consensus regarding the best method of cord blood storage and Cells4Life had not provided sufficient evidence demonstrating the superiority of their storage method, the ASA considered that the ad breached the Code.

The ASA considered that enough evidence had been provided by Cells4Life to substantiate their claim that they stored more UK stem cells than any other private bank and that it was clear that the claim related to UK stem cells only. They also considered that the claim to operate “24 hours a day, 365 days a year” was not misleading since Cells4Life had a contract in place with a courier company for 24 hours a day service.

This decision serves as a reminder to advertisers that claims of superior products or methods must be properly substantiated with comparators clearly identified.  

5. E&L Distribution Ltd t/a LeoLites, 13 August 2014

A poster ad for a brand of e-cigarettes featured text stating, “E-CIGARETTES HAVE EVOLVED. LEOLITES.COM. LOVE YOUR LUNGS.”

Complaint/Decision

The complainant, who believed that the claim “LOVE YOUR LUNGS” implied that using the product would have a beneficial impact on the users’ lungs, challenged whether this claim was misleading and could be substantiated.

The ASA upheld the complaint. Leolites argued that the phrase “LOVE YOUR LUNGS” did not in itself constitute a direct claim of a health benefit and that, in their opinion, common sense should dictate to consumers that the text should not be taken as an indication that the product was harmless.

While the ASA noted that Leolites had not intended the text used to act as a direct health claim, they nonetheless felt that, in the context of the ad, consumers would be likely to understand the claim as meaning Leolites e-cigarettes were not harmful or that they would improve the health of the consumers’ lungs. The ASA also considered that the text used in the ad implied a comparison between Leolites and both conventional cigarettes and other brands of e-cigarettes. The ASA therefore felt that the wording used in the ad would be interpreted as meaning that consumers would experience an improvement in their health were they to switch from other types of cigarettes to Leolites.

As no evidence had been supplied by Leolites to support these notions, the ASA found that the claim in the ad had not been substantiated and that the ad was therefore misleading.

Ads for e-cigarettes remain a particular focus for the ASA. This adjudication serves to illustrate that, even in instances where the advertiser had not necessarily intended to make a direct beneficial health claim, the ASA will still require any implied health claims to be substantiated.

6. LensWay Inc, 27 August 2014

LensWay’s website, www.lensway.co.uk, featured an ad which stated “FREE DELIVERY AND EASY FREE RETURNS”. On a linked page entitled “PureVision Multifocal” there was also text stating “PureVision Multifocal 6 lenses per box £54.89 Sale price per box. Was £59.99.”

Complaint/Decision

The complainant challenged whether the ad was misleading because the prices listed did not include additional compulsory charges for handling and insurance that any purchaser would have to pay.

The ASA upheld the complaint. LensWay contended that purchasing glasses online was a more complex process than purchasing many other products. They stated that due to the large number of other variable costs which may exist (ie differing prescription levels, lenses and coatings) it was most common for glasses to end up costing much more than the list price of the frames. In this context they felt the issue over whether the handling and insurance charges were listed in the price was irrelevant.

However, the ASA considered the application of insurance and handling charges (especially given that it was compulsory) was material information. They noted that the ad did not indicate that such charges would be payable and considered that this should in fact have been stated prominently. The ASA also felt that these charges (along with the other variable costs mentioned in LensWay’s response) constituted important information that a consumer would require in making an informed decision on whether to purchase the glasses. Accordingly the ASA concluded that the ad was misleading.   

Pricing is always a complex area, and one where the ASA will generally take a strict approach. Particularly where prominent reference was made to “free delivery and easy free returns”, it is not surprising that the ASA considered the pricing claim to be misleading. The BIS Pricing Guide states that traders should make clear “any additional charges for postage, import duties, packaging or delivery, so that consumers are fully aware of them before they commit themselves to buy”.  This would clearly extend to these additional costs.
 

LEISURE

7. Sporting Index Ltd
, 6 August 2014

A press ad for Sporting Index contained a digitally manipulated image of the ‘Christ the Redeemer’ statue in Rio de Janeiro. Jesus was shown smiling, with his right arm around a bikini-clad woman and his hand resting just above her bottom; he was also holding a bottle of champagne in his left hand. Text across the ad stated “There’s a more exciting side to Brazil” and “World Cup excitement guaranteed”. Further text in a roundel next to the statue’s head read “£500 IN FREE BETS*”.

Complaint/Decision

1. All 25 complainants challenged whether the ad was likely to cause serious or widespread offence. Many of the complainants mentioned the woman and the fact that Jesus was depicted holding a bottle of champagne.

2. The ASA itself also challenged whether the ad linked gambling with sexual success.

The ASA upheld both complaints.

1. Sporting Index stated that they felt the imagery used in the ad was humorous and cartoon-like and that the inclusion of the bikini-clad woman and the champagne was used to make reference to Rio de Janeiro’s famous beaches and ‘Carnival’ culture.

While acknowledging these arguments, the ASA nonetheless considered that as the ad featured a depiction of Jesus, it would carry a high degree of significance to many members of the public, especially Christians, and as such appropriate care should be taken over its use. The ASA therefore felt that, although it might have been in a light-hearted fashion, depicting Jesus with his arm around a largely undressed woman and holding champagne whilst celebrating a gambling win, was likely to cause offence to members of the public.

2. Sporting Index contended that the ad could not genuinely be interpreted as making any connection between gambling and sexual success, citing again that the imagery was a tongue in cheek reference to Rio de Janeiro’s culture and that the bikini-clad woman was a cartoon like rendition and not true to life. They also argued that recent ASA rulings had indicated it was acceptable to feature attractive people in ads without it being automatically considered to indicate a link to sexual success.

While the ASA accepted this point in principle, they felt that in this particular instance the statue depicted a figure celebrating a gambling win and that the woman constituted a part of that celebration. The ASA further considered that the pose assumed by the statue and the woman, as well as her attire, implied a degree of flirtatiousness and sexual contact regardless of whether the figures were presented in a cartoon-like form. In light of these considerations the ASA concluded that the ad did link gambling with sexual success and as such broke the Code.

The ASA can take a robust approach where there are complaints as to offensiveness, but religion is one of the areas where advertisers need to be particularly careful. 

This adjudication comes amongst a number of other rulings on gambling related ads this month, notably in respect of Paddy Power and Ladbrokes (see below). While this was no doubt partly due to the high profile nature of the FIFA World Cup which took place this summer, the presence of these rulings is also indicative of the ever greater number of gambling ads that are appearing and the notion that they often tread close to the line regarding acceptability in the eyes of the ASA.

8. Paddy Power plc, 13 August 2014

A newspaper ad for bookmakers Paddy Power, which featured in the Metro, contained the text “WHO’S THE BEST MASS DEBATER? CLEGG 6/4 FARAGE ½…” It also included photographs of Nick Clegg and Nigel Farage, both with suggestive facial expressions.

Complaint/Decision

Two complainants, who were of the belief that the ad alluded to masturbation, challenged whether it would be offensive to members of the public.

The ASA did not uphold the complaint. The ASA accepted Paddy Power’s assertion that the newspaper which the ad featured in was aimed at adults. In light of this they also felt that it was likely the ad’s audience would understand that it made reference to a forthcoming political debate. The ASA also considered that while no explicit references to masturbation were made, the ad’s intended audience would recognise the double meaning of the text and the images.

The ASA acknowledged that Paddy Power had intended the ad to deliver their service in a light-hearted fashion and that, although some readers would not share Paddy Power’s sense of humour, they would nonetheless recognise it as an attempt at humour by the advertiser. Paddy Power also pointed out that only two complaints had been made to the ASA and that they themselves had received none directly.

The ASA noted that, under the Code, marketing communications must not contain anything likely to cause serious or widespread offence. While the ASA acknowledged the claimants views, in light of the above considerations and given the context in which the ad appeared, they concluded it was unlikely to cause offence to a serious or widespread degree. Accordingly therefore, the ASA found the ad did not break the Code.

Paddy Power ads are regularly the subject of a high number of complaints and a challenge was upheld against one of their ads as recently as March 2014. However, as was the case here, complaints against their ads for causing controversy are not always upheld, including in relation to their ad featuring blind footballers from July 2010.

9. British Midland Regional Ltd, 20 August 2014

A prize promotion on the Facebook page of British Midland Regional (bmi) featured a post for a competition with numerous references to: “a family trip to Legoland in Billund”, and 
“bmi regional have teamed up with Legoland in Billund to give you the chance of winning the trip of a lifetime! We're sending one lucky family of two adults and two children to Legoland in Billund for a two night stay, including free entry into the park and free flights!”.  The promotion referred to “Flights across the UK and Europe with bmi regional” and to bmi operating “Over 450 flights a week to 24 destinations across the UK and Europe”.

The terms and conditions included text which stated: "9. There shall be one prize ("the Prize") which consists of: Two night stay for family of four at LEGOLAND Billund resort, with free entry to resort for three days Flights: Four outbound flights from Birmingham to Billund (date to be confirmed), and four return flights from Billund to Birmingham (date to be confirmed ... 21. Should for any reason the flights to the destination get cancelled indefinitely by the airline, the prize will be changed to another destination on the bmi regional network of the winners choice [sic], and accommodation will be offered in a three star hotel for two nights for a family consisting of two adults and two children. The entry to the attraction (Legoland Billund) will in this case not be replaced and no alternative will be offered... ".

Complaint/Decision

The complainant had entered and won the prize promotion, but had then been informed by bmi that the prize was no longer available in its current form. The complainant was offered an alternative package, where the departure airport would be Stansted. They were also offered a further alternative of return flights to Gothenburg, but this would not include entry to Legoland. The complainant challenged whether the promotion had been fairly administered.

The ASA upheld the complaint.

The ASA considered a number of statements included in the text of the promotion, in particular the claim by the ad that “We’re sending one lucky family of two adults and two children to Legoland in Billund for a two night stay, including free entry into the park and free flights”. They also noted that when filling in the form, entrants were asked to specify their “Preferred departure airport”. In light of these two points, the ASA considered that potential entrants would understand that the prize included return flights from an airport of their choice and a two-night stay at Legoland Billund resort which included entrance to the park.

Bmi stated that after the winner had booked return flights from Birmingham in claiming the prize, bmi had ceased running a service from Birmingham to Billund. Bmi also argued that they had offered two adequate alternatives to the complainant which had both been refused.

However, the ASA noted that the terms and conditions stipulated that if the prize as advertised became unavailable, the winner was entitled to return flights to “another destination on the bmi regional network of the winners choice”. The ASA noted that the offer of flights to Gothenburg did not represent a destination of the winner’s choosing and as such was not a reasonable equivalent to the advertised prize.

In addressing the other alternative offered, the ASA stated that, pursuant to the Code, ads must not falsely claim that a consumer, on doing a particular act, would win a prize or equivalent benefit if a cost were to be incurred by the consumer in claiming that prize. The ASA considered that in travelling to Stansted the winner would indeed have to incur such an additional cost.  Bmi argued that the terms and conditions clearly stated that transfers were not included in the prize and that the winner would therefore have incurred a cost whether travelling to Birmingham or Stansted. Nonetheless, the ASA concluded that the cost of transfer to Stansted would be in addition to the advertised prize of flights departing from Birmingham. The ASA therefore found that the ad breached the Code. 

This ruling serves as a useful reminder to advertisers that if they are offering prizes which may become unavailable, they must be prepared to offer alternatives which are genuinely suitable, and that terms and conditions cannot be used to exclude this requirement.  This adjudication also addresses the issue that no extra cost burden should be placed on the winner of a prize, which was the issue in the Purely Creative case, where the CJEU held that where the consumer is given the impression that he has won a prize, he cannot be made to pay or incur any cost whatsoever in taking any action to claim that prize. 

10. Ladbrokes plc t/a Betdaq, 27 August 2014

A website for a betting service, www.betdaq.com, featured an image of the statue of ‘Christ the Redeemer’ with Rio de Janeiro visible behind. The statue had been digitally altered so that the statue’s robe was purple and the word “BETDAQ” had been superimposed on it. The overall image was headed “WOLD CUP 2014 – BET WITH BETDAQ”.

Complaint/Decision

The complainant objected that the use of an image of Jesus Christ to promote gambling would be offensive to Christians.

The ASA upheld the complaint. The ASA acknowledged that the ‘Christ the Redeemer’ statue was highly symbolic of Rio de Janeiro and was therefore likely to be understood by visitors to the site as a reference to the city and the 2014 FIFA World Cup.

However, the ASA nonetheless considered that any image of Jesus Christ was likely to have religious connotations for certain members of the public, regardless of whether it has also become a more secular landmark. While the ASA noted that the figure of Christ was not actively taking part in any gambling, it was however emblazoned with the colour scheme and logo of BETDAQ and was the primary feature of their ad. The ASA therefore concluded that the ad created an association between the figure of Christ and gambling activities and as such was likely to cause offence to some visitors.   This adjudication follows a similar approach to that taken with the Sporting Index Ltd adjudication above.


FINANCIAL 

11. Barclays Bank plc, 13 August 2014

Two radio ads promoting Barclays Business banking featured breaking news style music. They also each featured a different interview with a Barclays customer, one an automotive business manager and the other a printer business owner.

Complaint/Decision

Three listeners felt that the ad was in the style of a news report and challenged whether the ad was clearly distinguishable from editorial content.

The ASA did not uphold the complaint. Barclays contended that the material they had included in their ads clearly distinguished it from editorial content. The ASA accepted their argument that, although the ads did feature similar music to that which often appears in news bulletins, it was not reminiscent of the relevant radio stations’ musical themes.

Barclays also pointed out that they had included legal caveats at the end of the ads which pointed to them being promotional. However, the ASA noted that under the Code, if an ad features elements associated with a news bulletin then the audience should quickly be able to recognise it as promotional material. As such, the ASA did not consider that including legal caveats alone at the end of the ad would make it possible for listeners to become aware of its promotional nature much before its conclusion.  Nevertheless, the ASA did note that although the ads were only around 40 seconds in length, they both stated the name Barclays around 10 and 17 seconds into the ad. The ASA considered that this would help listeners in identifying the material as promotional.

Therefore, because the style of the ads differed from recognisable station content and given that Barclays was mentioned early on in the ad, the ASA concluded that the ads were clearly distinguishable from editorial content.

This adjudication reminds advertisers that ads must be clearly distinguishable from any editorial content on the medium through which they are publicised. While this is perhaps a particular consideration on radio, where the consumer can only rely on what they can hear as opposed to any visual branding of the ad, it is also relevant across other formats, for further information see the recent Law-Now on  ‘native advertising’.


OTHER 

12. TNT Post UK Ltd, 27 August 2014

A leaflet and a regional press ad for TNT Post UK drew comparisons with Royal Mail, showing a man in the TNT uniform with text including references: “ We operate under the same rules and regs as Royal Mail – authorised by the Government to carry mail and watched over by OFCOM”; “ Every item delivered at a competitive price – not just within Manchester, but all over the UK.” And “If your organisation wants a change for better, call XXX or email XXX”.

Complaint/Decision

Royal Mail Group challenged whether the claim that TNT “operate under the same rules and regs as Royal Mail – authorised by the Government to carry mail and watched over by OFCOM” was misleading and could be substantiated, because TNT was not required to deliver to every address in the UK on a next-day basis in the way Royal Mail was.  Royal Mail Group also challenged whether the reference to delivery “all over the UK” could be substantiated because it suggested that TNT delivered mail all over the UK themselves, and further that the claim “If your organisation wants a change for better…”  - suggested the service provided by TNT was better than the service provided by Royal Mail, could not be substantiated and did not set out the basis of comparison nor show any evidence of how it had been verified.

The ASA upheld each of these challenges, although it did not consider that the references to Royal Mail in the ad misleadingly implied a connection or link between the two companies.

The ASA considered that the claim implied that TNT was subject to the same service requirements that Royal Mail was. The ASA noted that this was not the case as TNT was not obliged to deliver to every UK address every day. The ASA therefore found the claim to be misleading. 

The ASA noted that TNT delivered directly only in Manchester and some boroughs of London, but in all other areas they subcontracted to the Royal Mail. They therefore found that promoting TNT’s end-to-end delivery as being “…all over the UK” was misleading in the absence of any qualifying information.

In relation to the claim “change for the better”, although the ASA considered that TNT had provided substantiation in relation to the number of jobs created in Manchester, TNT had submitted no substantiating evidence for the claim they made on competitive pricing when compared with Royal Mail.  The ASA therefore considered that TNT had not substantiated all the claims made in their ad and accordingly found it to be in breach of the Code. Moreover, although the ASA considered that the ad explained the basic premise of the comparison, the information given in the ad did not enable readers to verify how TNT considered itself to be superior to Royal Mail and concluded that the ad was also misleading on that basis.

RETAIL 

13. Wm Morrison Supermarkets plc, 6 August 2014

A TV ad showed a mother preparing a burger for her daughter’s dinner while the daughter talked about her day at school. After stacking the burger with salad, the mother passed it to her daughter who had just said, “My teacher said I was the best in the whole class.” On receiving the burger, the girl lifted the top of the bun and removed the salad, putting it on the side of her plate before replacing the top of the bun on the burger. The voice-over stated, “Love quarter-pounders. Love them cheaper” and shots of burgers appeared on-screen.

Complaint/Decision

Eleven viewers challenged whether the ad condoned poor nutritional habits or an unhealthy lifestyle, especially in children.

The ASA upheld the complaint. Clearcast, responding on Morrison’s behalf, pointed out that the girl did not look disparagingly or negatively at the salad and that in their opinion she carefully placed it on the side of her plate after removing it from the burger. They also stated that she made no effort to hide her actions from her mother and that therefore it was entirely feasible that the girl had removed the salad from her burger to make it easier to eat and that she would return to the salad afterwards.

However, the ASA considered that the girl had in fact dropped the salad in a careless manner, after which she picked up the burger and smiled. The ASA felt that this suggested she was not going to eat the salad later. The ASA also felt that the ad in general gave the impression that the girl was eager to eat the burger alone without the salad, thus showing her actively choosing a less healthy option. This was reinforced by the voiceover stating “Love quarter pounders.”

The Code provides that ads must not discourage good dietary practice and therefore, in concluding that the ad portrayed eating the burger alone as the more preferable option, the ASA concluded that the ad was in breach of the Code.

This adjudication shows advertisers that they must take care when promoting products which could be considered to be unhealthy. However, this can be compared with the ASA’s ruling on Mondelez in March 2014 [LINK:http://www.law-now.com/law-now/asamarch2014%20long.htm], where a similar complaint was not upheld because the advertiser included the relevant snack bar was not being promoted above healthier alternatives. Where showing children in these types of ads, it is always important to take particular care.

14. Winning Deals Ltd, 6 August 2014

Two ads promoted a pair of hands-free binoculars. The first ad contained text stating “ZOOM IN ON THE ACTION BY UP TO 400% AND SEE FAR AWAY OBJECTS WITH SUPERB CLARITY” and “ZOOM-IN at home or away with up to 400% magnification!”  Both ads contained text offering a pair of  “HANDS-FREE BINOCULARS FOR EVERY READER”, with smaller text stating that readers would get a second pair of binoculars free if they ordered the first pair for the advertised price: “TAKE ADVANTAGE NOW OF OUR SPECTACULAR OFFER. ORDER YOUR HANDS-FREE BINOCULARS TODAY…AND WE WILL SEND A SECOND PAIR ABSOLUTELY FREE!” and “FREE PAIR OF HANDS-FREE BINOCULARS– When you buy one pair we will give you another one FREE” and “AMAZING INTRODUCTORY OFFER – BUY ONE GET ONE PAIR OF HANDS-FREE BINOCULARS FOR JUST £19/95 + p+p AND GET A SECOND PAIR FREE!”. 

Complaint/Decision

1. Two complainants challenged whether the claims of “up to 400%” magnification in both ads were misleading and could be substantiated.

2. One complainant challenged whether the claim “HANDS-FREE BINOCULARS FOR EVERY READER” was misleading.

The ASA upheld both complaints.

1.  Winning Deals sought to rely on two test reports relating to the magnification capabilities of the product, they also sent a sample to the ASA. The ASA acknowledged the evidence provided by Winning Deals, however it also noted that the reports came to differing conclusions in respect of the power of the binoculars. After using the sample provided by Winning Deals, the ASA also considered that objects only appeared slightly larger through the binoculars than they did with the naked eye. Given that they considered consumers would take the text in the ad to indicate the binoculars provided 4x magnification, they therefore concluded the ad was misleading on this account.

2.  Winning Deals contended that the ad clearly stated in a number of places that the ad represented a buy-one-get-one-free offer and that therefore the second pair of binoculars were indeed free to any reader who purchased an initial pair. While the ASA accepted the ad did include text which referred to a buy-one-get-one-free offer, they pointed out the prominence of the unqualified corner flashing which stated that the product was “FREE…FOR EVERY READER”. The ASA considered that the product was only free to consumers who made an additional purchase at cost and that therefore the ad was misleading.

15. ACHICA Ltd, 6 August 2014

Two ads for ACHICA featured a bedding range. The first ad, an email, referred to a 53% discounted price and featured a link to a range of bedding sold at discount prices. The second ad, which featured on ACHICA’s website showed the same product labelled “£69.00 ACHICA”. Crossed out text below read “RRP £145.00”.

Complaint/Decision

The complainant believed that the products were not generally sold at the listed RRP and therefore challenged whether the ad was misleading and the savings claims could be substantiated.

The ASA upheld the complaint. ACHICA argued that the ad was not misleading because many similar products were sold at the RRP they had listed in their ad. As evidence of this they submitted a number of screenshots to the ASA which showed similar products from other retailers’ websites all priced at between £137 and £180.

However, the ASA considered that the use of the RRP in ACHICA’s ad would lead consumers to understand that the same product was regularly sold at that price by other retailers. They noted that, although the screenshots illustrated that similar products were for sale at price levels comparable to the RRP quoted in the ad, they did not in themselves show that the products had actually been sold at this price. In any event, the ASA further noted that the screenshots did not feature the same product as that in ACHICA’s ad being sold elsewhere, but only similar ones. As such, the ASA concluded that the evidence provided by ACHICA did not serve to substantiate the savings claim made by the ad and that it was therefore misleading.

This decision by the ASA is unsurprising, but is a reminder that care should always be taken when including any reference to RRPs.  The ASA regularly rules against ads which feature RRPs that cannot be clearly and easily verified. RRPs are likely to mislead if they differ significantly from the price at which a product or service is generally sold. The BIS Pricing Guide also makes this point clear and that traders should not use RRPs for goods that only they supply.

16. Tesco Stores Ltd, 6 August 2014

A series of three ads focused on Tesco milk.  A TV ad included a voice-over stating, “At Tesco, caring about our milk goes all the way back to the cows. We promise a fair price for our farmers and a low price for you. It’s fresh British milk at a price that’s down and staying down.” A number of short clips were then shown in reverse, portraying a general theme of old-fashioned and wholesome farming practices, but specifically including a farmer milking cows and five cows in an open field. This theme was repeated in a regional press ad, which featured three cows in an open field.  A national press ad also showed cows in an open field with text which read, “Our promise to British dairy farmers - At Tesco we care about our milk and where it comes from, which is why we set up the Tesco Sustainable Dairy Group. We promise that our farmers will always be paid a fair and independently agreed price for their milk. Which means they can protect the livelihood of their farms and provide higher welfare standards for their cows. When you buy your milk at Tesco you can be confident that it's responsibly sourced and at a fair price for all. Find out more at [website address]". The ad also included the logos for the Tesco Sustainable Dairy Group (TSDG) and Tesco itself. 

Complaint/Decision

1.   Two complainants each respectively challenged whether the TV and regional press ad were misleading because they believed the images of the cows did not accurately represent the conditions the livestock lived in.

2.   A third complainant, a farmer, challenged whether the suggestion in the national press ad that Tesco sourced all their milk through the TSDG was misleading and could be substantiated.

The ASA did not uphold any of the complaints.

1. Tesco stated that all of their milk suppliers were required to meet industry Red Tractor standards and that, in addition to this, their core dairy farmers also had to adhere to the Tesco Livestock Code of Practices. Copies of both of these documents were submitted to the ASA. Tesco argued that they did not feel that the images used in the ads were misrepresentative of the type of farming that would be carried out pursuant to the standards mentioned above.

The ASA felt the ads suggested that the dairy farms from which Tesco received their milk were generally not intensive operations and that livestock had access to outside grazing. The ASA acknowledged the documents provided to them by Tesco in respect of farming standards. They noted that in order to adhere to Red Tractor industry standards farms must allow their cows untethered exercise every day and put in adequate procedures for monitoring the welfare of the livestock. The ASA also noted that farms would be subject to inspections no less than once every 18 months. Furthermore, the ASA also acknowledged that Tesco’s Livestock Code of Practice placed even more comprehensive requirements upon farmers.

In light of the above, the ASA did not feel that the images in the ads portrayed an unrealistic impression of the cows’ living conditions. They also accepted Tesco’s argument that it would be considered bad farming practice to graze cows outside all year round (ie during winter) and that based on the evidence supplied by Tesco they were satisfied that when appropriate, the cows were likely to graze outside. Accordingly, the ASA found that the ads were not misleading on this account.

2. Tesco stated that around 80% of their total yearly milk requirements were provided by ‘Core’ TSDG farmers, who were then supplemented during periods of low-production by the ‘Seasonal’ TSDG farmers.

The ASA considered that the text in the ad would imply to readers that milk bought from Tesco would have been supplied by TSDG. Despite the fact that the ASA noted that the ad did not contain a direct claim that all milk sold by Tesco was sourced from TSDG, the ASA was nonetheless satisfied by data submitted by Tesco that all their own fresh and filtered milk (except organic, goat and flavoured) came from TSDG. The ASA therefore found that the ad was not misleading.  

17. Tesco Stores Ltd, 20 August 2014

A national press ad for Tesco, headlined “Better than half price,” featured an image of a leg of lamb labelled “£4/kg”. It also featured text which read, “Enjoy Easter together Tesco Whole Lamb leg joint 1.3kg – 3.5 kg…Tesco Half Leg lamb joint 0.5kg – 1.5kg £11/kg £5kg £4k/g”. The prices appeared below each of the products with the higher two prices struck out in both cases. Smaller text also stated “…Selected UK stores. Subject to availability…Offer ends 25/04/2014”.

Complaint/Decision

The compliant challenged the availability of both products, which were out of stock in his local store.

The ASA did not uphold the complaint. Tesco stated that in forecasting demand for the promotion in question they had used sales data from previous similar promotions and therefore felt they had provided a suitable level of stock to meet national demand. They also pointed out that the ad stated the promotion was “subject to availability.”

The ASA acknowledged that Tesco had used sales data from previous promotions to predict demand for the goods in question. They also noted that these previous promotions had, similarly to the one subject to the complaint, taken place during the build up to Easter, which led them to conclude that this was a reasonable basis upon which to predict demand.

Although the ASA accepted that the relevant goods had not been available when the complainant had visited the store, they noted from the evidence provided by Tesco that stock had been available in the store until that point and also that there had been an unexpectedly high level of demand for the goods in the days preceding the complainant’s visit. Furthermore, the ASA pointed out that there had been available stock of at least one of the products in three other local stores and that sales of the products at the store in question continued in the days following the complainants visit.

In light of the above considerations the ASA concluded that Tesco had made a reasonable estimate of demand and provided stock accordingly and that therefore the ad was not misleading. 

This adjudication comes in contrast to a ruling from July 2014, where the ASA found that another Tesco ad was misleading because the promotional product in that instance had not been sufficiently available.  

The ASA can take a very strict approach to promotions The Code makes clear that wording such as “subject to availability”, which Tesco sought to rely on here, does not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. However, as well as stipulating that promoters need to be able to demonstrate that they have made a reasonable estimate of the likely response and that they were capable of meeting that response, the Code also states that where a promoter is unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside its control, the promoter must ensure relevant communication with consumers and also offer a refund or a substitute product.  However, there was no evidence here that Tesco had done either of these.

18. Lidl UK GmbH, 27 August 2014

An in-store leaflet featured a range of promotional products that was headlined “Italian. Half Price Weekend Offers 01.03.14 & 02.03.14 only”. The ad included an image of minced beef in a bowl and the text “STRATHVALE Fresh Beef Mince 500g 20p/100g £2 Per Pack [with the “£2” crossed out] £1 Half Price Offer!”. Small print at the bottom of the ad included “A maximum 6 per customer … all offers subject to availability”.

Complaint/Decision

The complainant, who visited the store on the first morning of the promotion and found the product was out of stock, challenged the availability of the product and whether the claim “A maximum 6 per customer” was misleading because he was told that customers were limited to three items each.

The ASA did not uphold the complaint. Lidl provided evidence that stores across the country had been allocated quantities of the minced beef subject to the promotion based on responses to a previous similar promotion for the same product. Lidl acknowledged that 100 fewer units of the minced beef had been delivered to the complainant’s store than were provided to a similar store and that this may have contributed to the fact that the complainant was unable to take advantage of the offer despite visiting the store within two hours of its opening. However, notwithstanding this fact, there had been an unprecedented demand for stock during the first two hours of the promotion which had far exceeded sales for previous promotions, causing them to sell out of the product.

Lidl had provided sales data showing that for the preceding promotion, upon which the stock allocation for the promotion subject to the complaint was based, approximately 36% of stores had stock left over after the end of the promotion and approximately 28% of stores sold out of the product on the second and final day of the promotion.

Further, Lidl also provided data for the actual promotion which showed that in the majority of stores, stock only sold out during the final four hours of the promotion. The ASA therefore considered that Lidl had made a reasonable estimation of the stock that was required to meet demand for the minced beef and did not uphold the complaint. The ASA was also satisfied that the six-pack restriction stated in the leaflet was not misleading, since sales receipts provided by Lidl had demonstrated that whilst stock was still available at the complainant’s local store, six packs per customer were consistently being sold.

This ruling follows that given in respect of a similar complaint over product availability made in respect of a Tesco ad (see above), although again there was no evidence of any communication being made to consumers, nor any requirement for Lidl to have offered a refund or a substitute product. 

TELECOMMUNICATIONS

19. Virgin Media Ltd, 13 August 2014

A regional press ad for Virgin Media Ltd stated “Hi Sky customers, you could save over £400 a year. Plus, right now save an extra £162 in our Red Hot Sale… Switch and save today…”. On the right-hand side there were two ‘receipts’; one for Sky’s ‘The family Bundle’ and the other for Virgin Media’s ‘Premiere Collection’. These listed the features and monthly total price of the respective packages. Sky’s Family Bundle was priced at £103.65 and Virgin Media’s Premier Collection at £67.99. Accompanying text stated “Annual saving with Virgin Media £427.92”.

Complaint / Decision

British Sky Broadcasting Ltd (Sky) challenged whether:

1) the ad was misleading because it exaggerated the savings that Sky customers could make when switching to Virgin Media; and

2) the comparison was likely to mislead since it included channels that were not part of the Sky Family Bundle and were not sold by Sky.

The ASA upheld the complaint on both grounds.

The ad specified the products and services on which the price comparison was based had been assembled to replicate as far as possible the Virgin Media Premier Collection and compare this against the most similar service from Sky. Although the ASA acknowledged the conditional wording used by Virgin Media, “could save over £400 a year” and accepted this did not imply that all Sky customers would achieve this saving, they considered that it was necessary for a reasonable proportion of current Sky customers to achieve the £400 saving since the ad was targeted at Sky’s customers generally. Since fewer than 0.1% of current Sky customers took the exact combination outlined and would therefore achieve the claimed saving, the ASA upheld the complaint on the basis that the ad exaggerated the savings that customers could typically achieve by switching to Virgin Media.

Although, for comparison purposes, Virgin Media had attempted to produce a Sky package that most closely matched their Premiere Collection bundle, they had done so by adding other Sky services to Sky’s Family Bundle (including BT Sport and ESPN channels). Since the Sky Family Bundle actually cost only £32 per month, a large proportion of the total £103.65 per month used by Virgin Media for comparative purposes actually resulted from the customers having to pay third party providers such as BT directly for these additional channels. The ASA therefore considered that the pricing of the Sky package was unfairly represented and upheld the second part of the complaint.

This is another episode in the long-standing battle between, in particular, Sky and Virgin Media. There are regularly complaints of this sort made between Virgin and Sky in respect of each other’s ads. The complex nature of the bundles often involved (including broadband, television and other services) often make comparisons difficult and can result in complaints being upheld if the relevant details are not carefully addressed and set out in the ad.