This article provides a selection of the most interesting ASA adjudications from March and a summary of the key issues considered in the adjudications.
Amongst other topics, this month the ASA has consider the scientific evidence required to substantiate claims, including the term “clinically proven”. The ASA has also looked at a number of comparative adverts and also the use of No. 1 claims. Also featured is the use of the term “free”, particularly by reference to post and packaging charges and issues relating to use of small print.
- 3GA Ltd, 30 March 2011
This adjudication involves a national press advert for the Brennan JB7 CD player, which has a hard disk apparently capable of storing up to 5,000 CDs. The advert attempts to persuade consumers to purchase the CD player by describing how inconvenient it is to store and to use CDs. The advert included the text ‘Load CDs in about four minutes’ and also the following quotation from the company’s founder, Martin Brennan: ‘A few years ago I had a go at loading my cassette collection onto a PC.’
Complaint / Decision
It was complained that the advert incited consumers to copy music from CDs, tapes and vinyl onto the CD player’s hard drive, in breach of copyright laws.
The ASA upheld the complaint because the advert repeatedly made reference to the benefits of the product being able to copy music, but it did not make it clear that it was illegal to do so without the permission of the copyright owner. The ASA also decided that the overall impression of the advert was such that it encouraged consumers and businesses to Copy CDs, tapes and vinyl, which misleadingly implied that it is acceptable to do so without the permission of the copyright owner.
This adjudication is interesting as it unusually relates directly to legal issues. The CAP code clearly provides that advertisers must ensure that their adverts comply with the law and should not incite anyone to break it. This adjudication therefore reminds advertisers that they must ensure that their marketing promotions do not contain any statements or imply that the use of their products in a particular way is acceptable, when it is actually contrary to the law.
HEALTH AND BEAUTY
- Nuga Best UK & Ireland, 30 March 2011
In a leaflet promoting a therapeutic couch with detachable gadgets, a series of statements were made concerning the efficacy of the product such as the ‘LF waves of Nuga Wight Control automatically transforms the polarities of body pathogens…normalising nerve actions and reducing fat in local areas and in body organs, breaking down cellulite trapped water and fat cells’, ‘use during a good night’s sleep can produce the same effect as running 20~30km’, ‘Tourmanium abundantly emits Far Infrared Rays and Anions naturally, Providing its miraculous healing properties’, ‘1 hour of FIR therapy is known to burn up to 1000 calories’, ‘FIR and Anions improves the cardiovascular system’, ‘Tourmanium Internal Projects double the effect of Moxibustion to bring about enhance metabolism, relief of muscle/joint pains and improved immunity of your body’, and ‘Also promotes fast recovery from fatigue and increases blood flow.’
Complaint / Decision
It was challenged whether or not any of the above mentioned statements made in the advert were misleading and could be substantiated.
The ASA unsurprisingly upheld the claims, stating that Nuga Best UK had failed to provide it with the ‘robust, scientific evidence’ necessary to substantiate such claims.
Nuga Best had provided the ASA with abstracts from several different studies, but the ASA considered that these abstracts alone were insufficient to support the wide-ranging health claims made in the advert. The ASA also stated that there were significant flaws in the methodologies used in the studies such as that they were not double-blinded or properly controlled, did not relate to the advertised product or its specific capabilities, were conducted on animals rather than people, used group sizes that were not large enough to support the claims made in the ad, did not use objective criteria, used subjective self-assessment to generate data, did not produce statistically significant results or results that have been published in reputable peer-reviewed journals.
Although possibly a somewhat extreme example, the flaws identified in the studies comprise a useful summary of those factors the ASA tends to look for when significant claims are made for effectiveness of health and beauty products and when seeking to rely on scientific evidence.
- Procter & Gamble (Health & Beauty Care) Ltd, 2 March 2011
This adjudication concerned a series of three TV adverts for Oral B toothbrushes, Olay Regenerist face cream and Head & Shoulders shampoo featuring TV presenter Anna Richardson, and using the theme the ‘Science Behind the Beauty’, programmed to be shown within the space of an hour. Each of the adverts included the on-screen text ‘This is an advertisement’ three times, and a different clinical scientist (who worked for the relevant manufacturer of one of the three products) was interviewed. The first two adverts finished with a statement to link to the next advert (e.g. ‘Join Anna in the next break when she’ll be investigating Olay Regenerist and Head and Shoulders’).
Complaint / Decision
Eighteen complaints were made to the ASA on the basis that these viewers apparently believed that the adverts were misleading because the adverts did not make clear that they were advertising material, implied that the three products had been independently chosen for inclusion and assessment, and did not make clear the identity of the advertiser.
None of these grounds for complaint were upheld because the ASA considered that the inclusion of the on-screen text stating ‘This is an advertisement’, the statements made by Anna Richardson at the end of the first two adverts made it clear to viewers that the material was advertising and that they were not real current affairs or investigative programmes, and ‘Science Behind the Beauty’ and the brand names of the products were frequently mentioned, which made it obvious that Science Behind the Beauty was responsible for the advert.
Although it should not be surprising that the ASA came to the above conclusion, health and beauty products remain a fertile area for complaints and care clearly needs to be taken to make clear, as Procter & Gamble did with this series of adverts, that a clear line is drawn between editorial and adverts.
- VetVits Ltd, 2 March 2011
An advert for horse supplements was placed in an equine magazine for ‘Equine joint care at half the price of Cortaflex’. Further text in the advert stated ‘for healthy equine joints…and clinically proven too’.
Complaint / Decision
A complaint was made by a competitor, challenging whether the claim that Equiflex was “clinically proven” was misleading and could be substantiated.
In keeping with the above adjudication concerning Nuga Best, the ASA stated that ‘a robust body of scientific evidence to support the claim’ would be needed to substantiate the claim. In this instance, the study used as the basis of VetVits Ltd’s assertion that its product was “clinically proven” was not considered sufficient for this purpose for a number of reasons: it was unclear from the study whether or not the horses used for the study were in a healthy condition at the time of the study, the number of horses used (18) was not large enough to support such a wide ranging and absolute claim, the data was collected by two assessors who observed the horses’ movement and characteristics rather than carrying out any objective clinical or technical tests to measure joint health, the terms used for assessment were too broad (e.g. mobility, lameness, character, stride and gait), no environmental controls were used, and although the final results were calculated on a mean average of the individual scores there was wide variation in some of the individual scores and this could introduce bias into the mean totals and therefore would give a misleading impression as to the final results.
As in the Nuga Best adjudication (above), the ASA’s consideration of the evidence provided to substantiate this claim can be used as guidance to advertisers wishing to rely on similar types of studies and similar claims for products to be “clinically proven”.
- Laura Ashley Ltd, 2 March 2011
In this adjudication the ASA reviewed a national press advert for Laura Ashley, which stated ‘MEGA EVENT Thursday 18th – Sunday 21st November 2010 inclusive 25% OFF EVERYTHING*’, and the further smaller text ‘25% off original price excluding Guardsman Protector, carpet fittings and underlay, discounted/marked down items, gift cards and delivery charges subject to availability…’.
Complaint / Decision
It was complained that the claim ‘25% OFF EVERYTHING’ was misleading.
Although Laura Ashley responded to the complaint that they had made the font size of ‘EVERYTHING’ smaller than ‘25% OFF’ to tone down the offer and to draw the reader’s attention to the asterisk and therefore to the smaller print, the ASA upheld the complaint. It did so because it decided that the list of exclusions in the small print were too significant a restriction to the offer, and that the list contradicted rather than clarified the offer.
This adjudication illustrates the ASA’s stance in relation to qualifications in marketing communications and the importance of making sure these clarify rather than contradict the main claims made, even where steps have been taken to highlight the qualifications.
- Waitrose Ltd, 2 March 2011
Delia Smith starred in a TV advert for Waitrose, stating ‘This year my traditional Christmas cake recipe…is going to be the easiest thing ever…all the preparation has been done for you…all you do is just empty the bags of all the different ingredients’, followed by ‘Then you need to feed the cake with Armagnac or brandy’.
Waitrose also posted an advert for Delia Smith’s cakes in a national newspaper. It contained the text ‘BAKE Delia’s Classic Christmas Cake Ingredients Pack…Waitrose have made Delia’s classic recipe even easier by measuring out all the ingredients and combining them in one handy pack’.
Complaint / Decision
Three viewers and a reader complained that the adverts were misleading because they did not make it clear that additional ingredients needed to be purchased in order for the cake to be completed as shown in the adverts.
The ASA upheld the complaint because it decided that the statement ‘all you do is just empty the bags of all the different ingredients’ implied that everything needed to complete the cake as shown in the adverts was included in the pack, whereas it understood that eggs, butter, orange and lemon zest, alcohol, marzipan, icing and edible cake decorations were not included in the cake pack. The ASA considered that consumers were likely to expect that they would need to purchase the fresh products separately, but that they would not need to buy the orange and lemon zest or the alcohol. Waitrose’s argument that the alcohol was not required for producing the cake was rejected because the ASA found that the statement ‘you need to feed the cake with Armagnac or brandy’ gave the impression that the alcohol was an essential part of the cake recipe rather than an optional extra.
The ASA did agree with Waitrose that the icing and decoration were optional extras, but because the cake was shown iced and decorated in both types of advert it decided that consumers would expect that the cake pack would include the icing, marzipan and cake decoration to complete the cake as shown.
It is of note that Clearcast had previewed the TV advert and had considered that viewers would understand that the alcohol was not included in the cake pack because it was shown being poured from a bottle, unlike the other ingredients which were shown in sachets. However, it appears that there had been some miscommunication between Clearcast and the advertising agency as to what the cake pack actually contained, and Clearcast said that they would aim to resolve this problem in the future. As mentioned above, the ASA in any case stuck to its own assessment of this issue.
This adjudication demonstrates the need for clarity in adverts to avoid the risk of being misleading, particularly with ‘all inclusive’ packs for ‘do it yourself’ products. Advertisers wishing to create such promotions should ensure that any items shown within an advert should either be included in the ‘all inclusive’ pack, or should be accompanied by a caveat to make clear that they needs to be purchased separately.
- Luv n’care Ltd t/a Nuby UK LLP, 16 March 2011
This adjudication concerned two magazine adverts for Nuby drinking cups. The first advert featured a picture of two drinking cups and was headlined ‘FREE† Nuby Grip’n’Sip CUP’, and also the text ‘UK’s No 1 Best Selling Silicone Spout’, ‘THE WORLD’S No. 1 CUP BRAND’, and ‘The perfect first cup designed for little hands and mouths. Over the last eight years Nuby™has established itself as the UK’s No.1 brand for silicone spout cups with No-Spill™technology’. The advert included a direct response panel for readers to claim their free cup, and a footnote stating ‘†TO SEND FOR PLUS P&P *BASED ON SALES FROM 2005 – 2008’.
The second advert included the text ‘Britain’s Favourite Silicone Spout just got better!’, with further text at the bottom of the advert stating ‘THE WORLD’S No 1 CUP BRAND’. The following small print also ran up the side of the advert: ‘*Based on sales in over 150 countries worldwide. Based on sales of Nuby cups from 2005 to 2008.’
Complaint / Decision
A competitor made a complaint on several grounds:
- The various “No 1” claims (including “Britain’s Favourite” and the market leadership claims were misleading and could not be substantiated;
- The small-print in both adverts was illegible and not prominent enough;
- The claims in both adverts that the products made drinking easy for small children were misleading and could not be substantiated; and
- The claim in the first advert that the GripnSip cup was ‘FREE’ was misleading because consumers were charged for postage and packaging and this was not made clear in the advert.
The ASA party upheld the complaint. This complaint was considered on the basis of the previous version of the CAP code, but the issues raised are still relevant under the new code.
- These aspects of the complaint were all upheld. The ASA noted that Nuby had sold over 30.8 million cups worldwide in the period of January to September 2010 and that they had provided evidence to support those sales figures, and that Nuby distributed to 150 countries and were confident that competitors could not dispute their sales figures. However, the ASA found that this evidence was not enough to substantiate the claim ‘World’s no. 1’ as this claim implied that they had sold the most cups worldwide compared to all international competitors. In order to substantiate this claim Nuby would need to hold robust comparative evidence which reflected not only its own sales data but that of its competitors.
Moreover, although the ASA noted that the advert referred to sales data between 2005 and 2007 as the basis of the ‘number one’ and ‘Britain’s favourite’ claims and that Nuby was the only company on the market selling that specific type of silicone spout cup during that time, the ASA found that the claims would be viewed by customers as referring to Nuby’s current sales figures. Since 2009 other similar products had been brought onto the market and therefore the ASA required more contemporary comparative sales data to the time that the adverts were made. Further, it found that the small print (explaining that the claims were based on data from 2005 to 2008) in both adverts contradicted rather than qualified the overall impression created by the claims made in the adverts.
Also, given the small market in which the advertiser operated, it was likely that readers would infer that the comparison was being made between Nuby and other identifiable silicone spout cup companies such as the Tommee Tippee brand manufactured by the complainant. Because of this, the ASA considered that the adverts should have explained to consumers how the information used to make the comparison could be reviewed, and because consumers could not verify the claims it was concluded that the adverts breached the CAP Codes.
- The ASA also upheld the complaint in relation to the prominence and size of small print. The ASA decided that the positioning (up the side of the page) of the small print in the first advert meant that it may have been overlooked by the reader. The ASA also found that the small print in the second advert was too small to be legible.
- This was the only aspect of the complaint not to be upheld, because the ASA found that ease of use of the product was open to subjective interpretation. The advert did not claim that the product was easier to use than similar products. Therefore the ASA considered that the claims, when considered in context, were likely to be interpreted by consumers as suggesting that the cup was appropriate for children to use.
- : Although the word ‘free’ in the headline claim was linked to legible small print at the bottom of the page and the response panel that customers were asked to complete made it clear that they needed to send £1 for the free cup for postage and packaging, the CAP Code does not permit items to be called ‘free’ when there is a charge for packing or packaging. Even though the £1 charge was apparently lower than the actual cost of the postage, the ASA took an extremely strict line and concluded that, as the charge covered both postage and packaging (even though less than the full postage cost), it was inaccurate to describe the cup as being ‘free’, and it therefore concluded that the advert had breached the CAP Code on this point.
This adjudication is similar to that reported last month concerning the Post Office’s successful response to Marks and Spencer Money’s complaint that it could not substantiate that it was ‘the UK’s number one travel money provider’. The Post Office provided the ASA with robust evidence to answer the complaint. However, in this month’s adjudication Nuby did not provide the ASA with such information. This reflects the ASA’s strict stance that claims that a product is market leading must be backed up with concrete and contemporary evidence.
- Officers Club 1979 Ltd, 23 March 2011
This adjudication concerns a prize promotion poster displayed in the window of an Officers Club shop which stated ‘WIN A LADS HOLIDAY TO AYIA NAPA’ and featured a photo showing three girls smiling at the camera (labelled ‘Ayia Napa 2011’) and a photo labelled ‘Awesome Views’ which showed a woman from the next to the waist wearing a small bikini top. Further text at the bottom of the poster stated ‘START 2011 WITH A BANG!’.
Complaint / Decision
Five complainants claimed that the advert objectified women by combining the image of a woman’s body with the text ‘Awesome Views’. A further complaint (made by five people) was made that the advert was inappropriately placed as it could be seen by children.
Both of the complaints were upheld because the ASA considered that the image was likely to cause serious offence to some people, and the medium of the advert was untargeted and could be seen by children. The ASA felt that the sole focus on the woman’s chest, in conjunction with the text, was likely to be seen as gratuitous and to objectify women.
This adjudication reminds advertisers that they should ensure that they make careful decisions about the medium used for, and the targeted audience of, promotions that include potentially offensive content.
COMPUTERS AND TELECOMMUNICATIONS
- TalkTalk Telecom Limited, 2 March 2011
An advert was placed in the regional press to promote a TalkTalk telephone and broadband package. In the advert it was stated, ‘Save up to £154 over 18 months vs BT+’ and ‘Unbeatable value phone and broadband £6.99 a month’. It also said ‘Our Essentials package includes: Up to 24Meg broadband…Unlimited evening and weekend calls to UK landlines…FREE wireless router’. Further text linked to the first statement (in small print) stated ‘BT comparisons: Savings based on subscription cost comparison over 18 months to BT More Broadband and Calls with Evening and Weekends at £2.99/month. Inc. TalkTalk £29.99 connection fee & £12.04 line rental but exc. any additional disconnection charges. BT offering inc. additional security features; pop-up blockers & parental controls. TalkTalk inc. Super Secure Boost at £2/month’.
Complaint / Decision
BT complained that the advert was misleading for three reasons:
- The BT package used in the comparison was not the most similar to the advertised TalkTalk package;
- The comparison was based on a line rental higher than BT’s best available price; and
- It failed to mention that BT currently had price promotions on both the most similar line rental and broadband and calls products.
A complaint was also made by Plusnet that the claim ‘Unbeatable value phone and broadband’ was misleading because they believed they offered a comparable and cheaper package in the region where the advert was published.
All aspects of this complaint were upheld.
It had been shown that the TalkTalk package had a higher monthly download limit than the BT BEW package and these limits were becoming more important to consumers, but the ASA also noted that unlimited evening calls would still be of importance to consumers when comparing packages and BT’s BEW package would work out as being less expensive than the TalkTalk package. The ASA considered that the advert was aimed at consumers seeking a low-cost telecoms package and, in light of this, TalkTalk had not used the most similar BT package in the comparison and concluded that the advert was misleading.
The second aspect of the complaint was also upheld. The ASA noted that TalkTalk’s price comparison was made over a period of 18 months (therefore more than the BT package’s 12 month term). This meant that, whether or not the payment for BT’s product was made up front, the cost was calculated over a period of more than 12 months. On this basis, the ASA did not consider the line rental savers’ minimum term to be a significant difference and that TalkTalk’s claim was therefore misleading.
The third ground was also upheld because the advert did not mention BT’s promotions. TalkTalk acknowledged this in their response.
The complaint made by Plusnet was upheld because, although the TalkTalk package included a higher monthly download limit and an internet speed that was 4 MB higher than the Plusnet package, the ASA considered that the advert was aimed at consumers seeking a low cost telecoms package and that they would understand that the text ‘unbeatable value’ referred to price.
The decisions made by the ASA are not perhaps surprising considering TalkTalk’s references to savings and low prices, but of note is that it did not deem the instances where the TalkTalk package offered higher specifications to those of its competitors to be of relevance, but was focused on which company offered a package at the lowest price to customers.
- Virgin Media Ltd, 2 March 2011
Virgin Media issued a circular stating ‘Free BlackBerry for just £15 a month BlackBerry Curve 8520 smartphone with: Unlimited email & web 500 texts + 100 mins BlackBerry Messenger Built in Wi-Fi…’.
Complaint / Decision
Two complaints were made that the ‘free’ claim was misleading because the telephone was dependent on the package, which cost £15 per month.
The ASA did not uphold the claim because Virgin Media provided information that showed that a significant proportion of customers bought calls and web/e-mail but did not take up the offer of the telephone, and it was therefore concluded that the telephone was provided in addition to the call package and was genuinely free.
This decision provides reassurance to advertisers of similar products that they can continue to create such ‘free’ promotions so long as they collect evidence to prove that the two parts of the offer (the telephone and the contractual services) are genuinely independent.
- Good Energy Ltd, 2 March 2011
A magazine insert for Good Energy Ltd stated ‘Good Energy is the UK’s only dedicated 100% renewable electricity supplier. While all other electricity suppliers rely on electricity generated using fossil fuels and nuclear power, Good Energy remains the only one whose electricity fuel mix is 100% renewable…all the energy we supply on behalf of domestic customers is certified 100% renewable. No fossil fuels, no carbon, no nuclear. We aim to change the way energy is made in the UK so we can build a 100% renewable energy future. This means producing and using energy locally; making it a visible part of the local community; and reconnecting people with the source of their energy. When people know more about where their energy comes from, they value it more and use it less’.
Complaint / Decision
A complaint was made that the advert misleadingly implied that Good Energy supplied 100% renewable energy directly to customers whereas it was supplied via the national grid, which also provided energy from sources that were not renewable.
The complaint was upheld. Although Good Energy did not state in the advert that it supplied 100% renewable energy directly to consumers, the ASA decided that the text used in the advert was ambiguous. It considered that the overall impression of the advert, in particular the impression given by the text ‘This means producing and using energy locally; making it a visible part of the local community; and reconnecting people with the source of their energy. When people know more about where their energy comes from, they value it more and use it less’, was that Good Energy did supply 100% renewable energy directly to consumers.
“Green” claims are always subject to careful scrutiny by the ASA. This adjudication demonstrates the strict approach that the ASA is likely to take in this respect and the need to ensure clarity in relation to both express and implied claims.
- Warmup plc, 9 March 2011
Warmup plc sent out an e-mail advert for electric floor heating which featured a hand holding a mobile telephone, and included text on the mobile telephone stating ‘We’re sorry, the number you are trying to call, ‘Cheap Underfloor Heat Mats UK’ has been disconnected. Good luck…’. Further text in the advert was ‘Made in Britain Sold Worldwide’ with a Union Jack flag and ‘Warmup The UK’s best-selling electric floor heating for more than 10 years, and here’s why…’, after which four reasons were listed why Warmup plc’s electric floor heating was allegedly ‘best-selling’ (please see below for further details), and then ‘Warmup is the only underfloor heating company accredited by all of these leading institutions’. Eight logos were shown including a CE mark.
Complaint / Decision
Heat Mat Ltd complained that the claims that the heaters were the thinnest, the safest, the strongest and the easiest to install in the industry were misleading and could not be substantiated. There was also a complaint in relation to the ‘24/7/365 Helpline’.
Heat Mat Ltd also complained that the claim that Warmup was accredited by the eight institutions whose logos were shown, was misleading and could be substantiated; and that the reference to ‘Cheap Underfloor Heat Mats UK has been disconnected’ was denigratory to Heat Mat Ltd, and implied that Heat Mat was no longer trading.
The ASA only partly upheld the complaint.
Although the ASA noted that Warmup’s wire was the thinnest of the wire samples provided, and therefore did not uphold that part of the complaint, the ASA upheld the other parts of the comparisons, because Warmup did not provide any relevant comparative evidence and, in particular, as to the ease of installation, the ASA considered that an objective test should be applied to the claim.
As to the ‘24/7/365 Helpline’, this aspect of the complaint was not upheld because the ASA noted that although on occasion Warmup’s helpline was not answered immediately when it received high volumes of calls, this was rare and Warmup had employed a range of options to mitigate the problem.
The complaint with regard to accreditation was upheld because the accreditations from some of the institutions listed in the advert were attached to Warmup products rather than to Warmup as a company. The ASA considered that the text ‘Warmup is the only underfloor heating company accredited by all of these leading institutions’ implied that the accreditations all related to Warmup as a company generally rather than only to some of its products.
The final aspect of the complaint was not upheld because the ASA found (through a Google search) that the terms ‘heating mats’ and ‘heat mats’ were used throughout the industry, and it therefore concluded that the advert was not denigratory towards Heat Mat Ltd and did not consider that the advert implied that Heat Mat Ltd was no longer trading.
This adjudication is interesting as it concerns a variety of different types of issues. However, in particular, it emphasises that any general comparisons made within an advert must be substantiated by objective evidence covering a range of relevant factors, and that advertisers must specify in detail as to what any accreditations referred to in an advert relate.