This summary provides a selection of the most interesting ASA adjudications in March, highlighting the key issues considered in those adjudications. This month the ASA considered two separate complaints about Virgin Media adverts, one in relation to its mobile phone network and another in relation to its broadband services. Complaints were made in relation to a four letter expletive appearing on a Christmas card (smellyourmum.com) and two complaints were concerned with child safety and children potentially emulating scenes from adverts (Asos.com and Nutricia). There was also a complaint in relation to a “number one” claim (M&S); two complaints in relation to stock availability (Early Learning Centre and bid.tv); and further complaints about perfume ads being sexually explicit (Coty).
Also this month the High Court ruled in Transport for London (TfL)’s favour over its decision to not publish a Christian group’s (Core Issues Trust) advert on London buses that featured the wording “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” The court found that TfL would have been in breach of its obligations under the Equality Act 2010 if it had allowed the ad to have been published because, in the court’s view, the ad encouraged discrimination and did not foster good relations or tackle prejudice or promote understanding between gay people and others. Despite ruling in its favour the court criticised TfL for having not carefully considered its decision not to publish the ad and also criticised TfL for having applied its advertising policy inconsistently in previous cases. Read the full judgment here.
- Smellyourmum.com Ltd, 20 March 2013 (the ASA considered whether the use of a four letter expletive in a product’s image on the listings page of an online retailer was offensive)
- Reckitt Benckiser Healthcare (UK) Ltd, 20 March 2013 (the ASA considered whether evidence supplied to support a comparative claim was sufficiently robust so as not to be misleading)
- Early Learning Centre Ltd, 6 March 2013 (a member of the public complained that an offer in a mailing letter was misleading due to a lack of availability of stock)
- sit-up Ltd trading as bid.tv, 27 March 2013 (a member of the public suggested claims of no further availability of a product on a particular day were misleading when the product was then put up for sale a further time)
COMPUTERS AND TELECOMS
- Virgin Media Ltd, 27 March 2013 (Sky and BT challenged whether Virgin’s broadband is truly “unlimited”)
- Asos.com Ltd, 13 March 2013 (complaints were made that an advert depicting acts of murder in a festive context was irresponsible as it could be seen and emulated by children)
- Marks and Spencer plc, 13 March 2013 (the ASA gave guidance on a “Number 1” type claim)
HEALTH & BEAUTY
- Nutricia Ltd, 13 March 2013 (the ASA considered whether a TV ad showing toddlers in various situations was prejudicial to children’s health and safety)
- LifeStyle Advantage Ltd trading as Essence of Argan, 6 March 2013 (members of the public challenged whether before and after photos were genuine, and whether free trial claims were misleading)
- Coty UK Ltd, 27 March 2013 (members of the public complained about an overtly sexual TV ad which they considered unsuitable for children shown at times when children could be viewing)
- Virgin Media Ltd trading as Virgin Mobile, 6 March 2013 (the FSA complained that claims as to the coverage of Virgin Mobile’s insurance policy were misleading)
- Addison Lee plc, 13 March 2013 (members of the public complained that a specific claim on taxi pick-up times was misleading)
- Equus Health Ltd, 6 March 2013 (the ASA considered whether a claim that a product was natural was misleading)
- Volkswagen Group UK Ltd trading as Audi, 27 March 2013 (the ASA decided whether use of figures quoted from industry standardised tests are misleading)
1. Smellyourmum.com Ltd, 20 March 2013
An ad for a Christmas card featuring on an online retail website showed a picture of the card, which contained the wording “YOU’RE A C**T SORRY, I MEANT TO SAY ‘MERRY CHRISTMAS’” (with the four letter expletive in its original form).
The complaint challenged whether the ad was inappropriate or offensive.
Smellyourmum.com suggested that the word in question was not offensive in the context as it set up the joke’s punch line and it did not target any particular group of people based on ethnicity, religion, appearance or other characteristics. Smellyourmum.com also argued that the word could convey a positive sense of the person or object referred to and even suggested that the origins of the word were non-offensive.
The ASA rejected these arguments and upheld the complaint. Whilst it accepted that the word was not targeted at a particular group, the ASA highlighted that CAP considered the word in question so likely to offend that it should not be used at all in marketing communications.
This outcome is unsurprising. The response from the advertiser was particularly bold in the circumstances. The defence raised was clearly most unlikely to succeed. It may therefore have been more effective for the advertiser simply to have apologised and agreed not to advertise a card with that expletive in an untargeted medium again. Had the advert been carefully targeted it is possible that the complaint might not have been upheld, though use of that specific expletive is likely to be more readily considered offensive.
2. Reckitt Benckiser Healthcare (UK) Ltd, 20 March 2013
In a TV ad for Bosch dishwashers and Finish dishwasher tablets, the voiceover stated that washing dishes at the sink could cost significantly more than using a Bosch dishwasher. The advert claimed that washing by hand used 49 litres of water, compared to 6 litres used by the Bosch dishwasher.
Complainants challenged the claim that washing by hand used 49 litres of water, claiming that it was misleading and could not be substantiated.
Reckitt Benckiser Healthcare (UK) Ltd (Reckitt Benckiser) said in response that the wording used in the ad had been carefully chosen to avoid making absolute claims, such as that dishwashers always use less water than washing up by hand. Reckitt Benckiser stated that it had based its findings on a 2009 study into dishwashing habits of UK consumers and that it had carefully selected the word “could” on advice from Clearcast.
The ASA upheld the complaint. The ASA took the view that consumers would understand the claim to be applicable to actual water usage by consumers. The usage of water in the 2009 study varied from 14 litres to 206 litres, with 49 litres being the mean. The ASA considered, due to the wide variety in results, the average figure of 49 litres as unlikely to be representative of the amount of water used in a domestic setting by consumers. Further, it stated that Reckitt Benckiser had ignored consumers’ habits in relation to whether consumers rinsed dishes when washing by hand. The ASA said that this was relevant when undertaking a comparative test and should have been addressed.
The on-screen graphic picturing washing up by hand using 49 litres compared to 6 litres for the dishwasher implied that washing up by hand usually used 49 litres, compared to 6 for a dishwasher. As the evidence supplied by Reckitt Benckiser was not sufficiently robust, the ASA concluded the claim was misleading and that the ad must not appear again in its current form. Reckitt Benckiser must not make claims regarding comparative water usage unless it has sufficiently robust evidence.
This reflects the need to have robust evidence when making bold and comparative statements, particularly when the statement relates to something so variable. Where there is such a wide range of results, to seek to pick an average is always likely to be misleading and dangerous to use as the basis for any comparative claim. This decision is also a reminder that advice from Clearcast will be no guarantee that the ASA will agree with such advice.
3. Early Learning Centre Ltd, 6 March 2013
A direct mailing stated “half term HALF PRICE on selected toys from 16th October to 4th November 2012”., with the bottom of the mailing including the wording “All products are subject to availability whilst stocks last.”
A consumer complained upon finding a number of products shown in the mailing to be out of stock.
Early Learning Centre Ltd (ELC) stated that it had estimated demand for products on the basis of a similar promotion that it had run in 2011, which had also taken place over October half term. ELC stated that demand had been significantly higher in 2012 and stated that one particular product had had a sale uplift of 773% in 2011 compared to 2138% in 2012. ELC explained that it had used the sales uplifts from the 2011 promotion to ensure it had sufficient stock available but that the sales uplifts in 2012 had been significantly higher than expected.
The ASA did not uphold the complaint. The ASA found that ELC had made a reasonable estimate of demand and that it had held sufficient stock to meet the demand that they had expected. The ASA considered that the mailing had only been sent out once prior to the start of the promotion and considered that ELC acted reasonably in using the previous year’s promotion to estimate demand.
Extremely attractive discount offers always carry the risk of products selling out and this will nearly always carry a strong possibility of consumer complaints. This decision, however, demonstrates that the ASA is willing to adopt a pragmatic approach in judging whether retailers use appropriate methods to estimate stock levels required to meet potentially high demand.
4. sit-up Ltd trading as bid.tv, 27 March 2013
A presenter of a teleshopping presentation on bid TV for a Yarvik tablet bundle made various statements relating to the availability of the product, including: “This is the last chance to get this bundle before Christmas…This offer is not going to be on your screen again before Christmas.”
A complainant, who understood that the bundle had been presented for sale again before Christmas, challenged whether the presentation misleadingly implied that the bundle would be available only during the presentation that day.
Sit-up Ltd stated that it had made this claim since, at the time of the presentation, it knew that it would not be replenishing its stock of the bundle before Christmas. It admitted that the presenter could have qualified his statements rather than assume that all the stock would be sold and that it could see how the statements could have been interpreted by viewers.
The ASA upheld the complaint. The ASA considered that, having made such claims during the presentation, bid.tv should not have offered the bundle for sale again before Christmas, regardless of whether or not it sold all its stock. As the bundle had been made available again before Christmas, the ASA concluded that the presentation had been misleading.
This is one of four upheld adjudications against sit-up tv this month and is a very clear decision from the ASA that if claims are made stating a product will only be sold on a particular day/time then the seller of that product should not offer it for sale again at a later time, even if the product is still in stock.
COMPUTERS AND TELECOMS
5. Virgin Media Ltd, 27 March 2013
The broadband section of the Virgin Media website claimed that its broadband was “unlimited” and that customers could “[d]ownload and browse as much as [they] like with no caps and no hidden charges”.
Sky and BT complained that the claim that Virgin Media was “unlimited” was misleading because they believed Virgin’s traffic management policy had a more than moderate impact on customers that exceeded data thresholds. Sky and a member of the public also complained that the claims misleadingly implied that Virgin had no provider-imposed restrictions on a customer’s ability to download data.
Virgin stated that the claim “unlimited” was intended to imply that customers could download as much as they liked without incurring additional charges or having their service suspended if they exceeded usage thresholds and suggested that most customers would appreciate that. Virgin stated that, even under traffic management, customers would still experience broadband speeds significantly above the UK average and would still be able to carry out the full range of activities of an average customer. In relation to the second complaint, Virgin suggested that average consumers would not expect to be able to download the theoretical minimum of 269 GB per day on a service described as having no caps. Virgin also stated that the impact of any traffic management policy was moderate and was clearly set out at the foot of the ad.
The ASA upheld both of the complaints. The ASA understood that “unlimited” was intended to mean that there were no restrictions on a user’s ability to download data, although appreciated that customers might expect such services to be subject to moderate restrictions. The ASA considered Virgin’s argument that its traffic management policy was moderate because it only affected 1.7-2.3% of customers, but took the view that, as the emphasis of the ad was on the speed of the service, traffic management speed restrictions of up to 50% were not moderate. The claim “unlimited” was therefore considered to have been misleading. Whilst accepting that the phrase “no hidden charges” referred only to charges and not to traffic management, the claims “unlimited” and “no caps” were misleading as they implied that there were no provider-imposed restrictions.
This is the latest in the longstanding battle between Virgin Media, Sky and BT on broadband advertising. Virgin Media is still seeking to make speed claims to differentiate its service, but increasingly has to do so now that is has lost the advantage of sole fibre optic cable use.
6. Asos.com Ltd, 13 March 2013
An internet video for the online clothing retailer Asos.com appeared on YouTube and the Entertainmentwise website. It showed various scenes of a man killing people, including locking a woman in a chest freezer and pulling down very large Christmas decorations, crushing a man. This was accompanied with on-screen text stating “HAVE A KILLER CHRISTMAS”.
The complaints challenged whether the ad was irresponsible, especially as it could be seen by children who might emulate the scenes shown.
Asos.com argued that the ad was clearly tongue in cheek and stated that its own research demonstrated that it had been received as such by its audience. The idea behind the advert was that the “Asossin” eliminated Christmas clichés so others could go on enjoying the party. It stated that no gruesome killing or actual death was shown in the ad.
Asos.com also stated that it had worked with its media buying agency and added that the ad had been shown in digital spaces only in order to target the desired audience of males in their twenties. Asos.com stated that it had been unnecessary to age-gate the video on YouTube because of the way in which it was targeted and because no killing or death was shown. Entertainmentwise said that the ad would have been passed through various media planning departments and they suggested that the word “killer” would have been interpreted as slang for “great”.
The ASA did not uphold the complaint. The ASA did consider the ad to be unsuitable for younger children due the risk of imitation; however, it noted that the ad was targeted specifically at males in their twenties. In addition, it stated that Entertainmentwise was a gossip website highly unlikely to appeal to young children and complainants had not reported seeing the ad alongside material targeted at children on YouTube. The ASA determined that the ad was likely to be understood as being tongue in check by older children, if seen by them, and as such the ad was not considered to be irresponsible.
Although it was considered that this advert was not suitable for a younger audience, the fact that it was targeted to a certain demographic through very specific digital spaces was a large factor in the ASA deciding not to uphold the complaints. It shows the importance of careful targeting of potentially offensive ads and the ASA’s pragmatic approach in deciding whether ads, with the risk of children imitating violent acts, will actually reach the eyes of young children. Advertisers should therefore take note that when targeting a certain demographic with adverts containing, for example violence, that they should consider what means and outlets they use in order to avoid complaints from the general public. This decision is the first of two this month in which the ASA did not uphold complaints that children may to attempt to emulate scenes from ads if they are targeted at older audiences and children are unlikely to view the ads (see adjudication in relation to Nutricia below).
7. Marks and Spencer plc, 13 March 2013
A press ad for Marks and Spencer (M&S) school wear was headed “Proven the best quality school wear on the high street”. The ad also stated that M&S had independently tested its uniform against six other high street competitors and its website contained further, detailed information relating to the testing of the uniforms.
Tesco challenged whether M&S’s claim to have the best quality clothing on the high street was misleading and could be substantiated; and whether the test results that appeared in the ad contained all the information necessary for consumers to verify the claim.
Tesco alleged that the comparison was unfair as it did not believe the items tested were the most comparable. Further, Tesco suggested that its items had been washed according to its care label guidelines but that the M&S garments had been tested using a more gentle wash cycle.
M&S stated that the claim was based on tests carried out by an independent testing house on five core school uniform clothing items from six competitors and their own range. M&S stated that details of how the products had been tested and the detailed test results were available on its website, which had been highlighted in the ad. It stated that the testing method, i.e. washing items according to instructions on the care label, had been fair as it would be in line with consumers’ expectations as to how testing would be carried out.
M&S also said that it had carefully considered its selection of competitors’ comparative products, taking into account the launch of new product lines. It also stated that it had not aimed to promote its own or its competitors’ cheapest products, but their core range. M&S stated that its comparison was focused on quality and not on cost and, as such, it did not believe that the verification information in the ad needed to include the prices of each garment.
The ASA dismissed both of the complaints.
The CAP Code requires product comparisons with identifiable competitors to be between products designed to meet the same need or that are intended for the same purpose (reflecting the provisions of the Comparative Advertising Directive) and the ASA concluded that M&S had complied with these rules. The ASA noted that M&S had compared six from their core products with six of their competitors’ most similar products. The ASA took the view that this was a sufficient number on which to base a general comparative claim and that there was no evidence to suggest that the selection of garments tested by M&S meant that the test results were misleading.
The ASA decided that although some elements of the laundering cycle for M&S garments were gentler than for competitors’ products, this was not the case for all elements of the cycle. Washing items in accordance with the care label instructions was considered to be a fair way of carrying out a competitive test.
The CAP Code also requires product comparisons with identifiable competitors to compare objectively one or more material, relevant, verifiable and representative features of those products (again, reflecting the provisions of the Comparative Advertising Directive). The ASA considered that the fact that M&S had provided detailed test results on its website was sufficient to allow customers to verify the information used and to make a comparison for themselves. As the claim related to quality and the ad provided detailed quality test results, the ASA did not consider it necessary for the price of each garment to be given.
This decision is in contrast to a similar “number 1” type complaint made against CSL Sofas in February 2013, in which the ASA decided that the evidence in support of the claim was not sufficiently robust. It also gives helpful guidance that the testing methods should be seen to be comparatively fair in the eyes of the consumer, and that the information provided to the consumer should include all information necessary for the consumer to make their own comparison. In this case, as the claim and test were focused on quality, price was not relevant. Directing consumers to the relevant section of the M&S website for details of the tests and results also helped to ensure a positive result from this complaint.
HEALTH & BEAUTY
8. Nutricia Ltd, 13 March 2013
An ad shown on TV and the Cow & Gate UK YouTube channel depicted young children in various scenes; including a toddler with a mobile phone in their mouth; a toddler chewing an electronic key fob on a set of keys and a toddler stood up in a bath.
Viewers complained that the advert was prejudicial to a child’s health and safety by showing a child unsupervised in a bath, and children with items with batteries and items which produce radio waves in their mouths.
Nutricia pointed out that the ad had an ex-kids restriction so should not have been seen by any children, and as such it considered the potential for any children to emulate the scenes to be minimal. Nutricia also suggested that the scenes were, in any event, not prejudicial to a child’s health or safety. It stated that no child was left unsupervised during filming and the ad did not suggest that any of the children had been left unsupervised.
Nutricia stated that it had taken careful notice of the Royal Society for the Prevention of Accidents’ (RoSPA). Nutricia stated that it had also taken advice from local Trading Standards Authorities and had been advised that there were no requirements or regulations that it should have taken whilst filming the ad. Nutricia stated that it had also considered leaflets published by the Department of Health on mobile phone signal and any related adverse health effects. Clearcast was also consulted but had rejected any ideas that seemed dangerous; Clearcast was comfortable that Nutricia had carried out its own audit on the relevant items and had carried out safety checks.
The ASA did not uphold the complaints. It agreed with Clearcast’s conclusions that the overall impression of the ad was that adults were present in the background of the scenes. The ASA considered that most consumers would understand that the ad was supposed to be comical in effect and reflected common, everyday scenes in most households with young children and, whilst not ideal, they were realistic representations of how toddlers behave. The ASA acknowledged the fact that Nutricia had carefully researched and selected the featured items to ensure that none were too dangerous for the toddlers to interact with. The ASA also noted the advice that had been given by Trading Standards and the Department of Health.
This decision can be contrasted with previous ASA decisions on child safety in the making of ads, for example, in relation to complaints against an ad for The Win Green Trading Co. in July 2011, a photograph of a child extinguishing a real fire featured in the catalogue ad and the ASA upheld complaints. This demonstrates that the ASA, in considering complaints in relation to child safety, will seek to determine whether there is a real risk that the behaviour shown will be emulated in reality. In this case, Nutricia had also taken care to take advice from appropriate third party organisations.
9. LifeStyle Advantage Ltd trading as Essence of Argan, 6 March 2013
The complaints related to two banner ads and three advertorials for Essence of Argan and IdroTherapy, products purporting to remove wrinkles.
All three of the advertorials used a selection of before and after photographs of the same woman’s face. The accompanying text, however, stated that all three woman had different names and life stories. The advertorials also contained text describing what effects using both products together for a period of 14 days would have on wrinkles. Text below two of the advertorials did contain statements to the effect that the stories and photos used in the ads were only illustrative examples and based loosely on a true story.
The ads also gave details of a limited availability trial offer.
There were numerous complaints:
- challenging whether the efficacy claims of the products were misleading and could be substantiated;
- questioning whether the testimonials were genuine;
- questioning whether the before and after photographs were genuine;
- challenging whether the ads were misleading because they failed to make it clear what costs would be incurred by consumers that requested a sample product;
- challenging that it was misleading that the offer expired on the date the ad was viewed, as consumers understood that the offer was available on a permanent basis; and
- questioning whether the statement “Now only two more trials left” was misleading and could be substantiated.
The ASA unsurprisingly upheld all of the complaints.
i) Lifestyle Advantage Ltd and Idrolabs Ltd said that the ads had in fact been created by their affiliates and simply offered to provide the ASA with contact details for those affiliates. In the absence of any evidence to support the efficacy claims for the advertised products, the ASA held that the claims had not been substantiated.
ii) & iii) The ASA considered that text included in some of the ads made it clear that the ads were based loosely on true stories, which had been modified with regards to story, photographs and comments. The ASA highlighted that there was, however, no evidence to demonstrate that the testimonials and before and after photos were genuine; it therefore upheld the complaint.
iv) The ASA took the view that the statements relating to free trials and a 30 day free supply of the products were written in such a way that consumers would understand that, upon request, they were able to receive a free trial of the products at no cost. The ASA were concerned that a number of the complainants, having only requested the free trial, had been subsequently charged for the following month’s supply of those products. The ASA took the view that the ad did not make it clear that, upon requesting a free trial of the advertised products, consumers would be charged for the following month’s supply and the ads were therefore misleading and breached the CAP Code.
v) & vi) The ASA considered that, in the absence of evidence to demonstrate that the offer expired on the date that the ad was viewed and that the stated level of availability was correct, the claims had not been substantiated.
These types of ads are becoming more common on internet browsers, for example, appearing on social media sites such as Facebook. Considering the large volume of such ads currently in circulation, promoting free trials and usually accompanied with before and after comparative photographs, it is questionable whether the adjudication handed down by the ASA here will have any effect in reducing the number of offending ads online.
10. Coty UK Ltd, 27 March 2013
A TV ad, for CK One perfumes, showed a group on young people dancing. Some of the men were topless and some of the females were in hot pants and bikini tops. The ad also showed images of men and women touching each other; in one scene a woman was straddling a man and he was touching her breasts. The accompanying voiceovers stated “CK One, the original shared fragrance” and “…and CK One Shock, daring fragrances for him and her.”
Viewers challenged whether the ad was likely to cause serious or widespread offence, as they believed it was overtly sexual. Complainants also challenged whether the ad was suitable for broadcast at the times of day when children could be watching.
Clearcast’s guidance was that this particular ad had superseded a previous version and had been approved without restriction. Rather surprisingly, Clearcast told the ASA that the scene that had attracted complaints was fleeting and too quick for them to notice and it had therefore not recognised the potential issue with the ad.
In relation to whether the ad was likely to cause serious and widespread offence, the ASA did not uphold the complaint. It took the view that, whilst the scene was overtly sexual, there was no explicit sexual content and the scene was very brief. The ASA considered that, in the context of marketing for perfume, and if it was appropriately scheduled, the ad was unlikely to cause widespread offence, although it may subjectively be offensive to some.
The ASA did, however, uphold the complaints in relation to the ad being broadcast at times when children were likely to view it. The ASA considered that the ad was sexual and was therefore unsuitable for young children. The ASA was particularly concerned that the ad had been broadcast during family films. The ASA concluded that an ex-kids restriction should have been applied to prevent it from having being broadcast in or around children’s programmes.
This case follows the recent decision by the ASA in February 2013 to impose an ex-kids restriction on a TV ad for Chanel fragrance Coco Mademoiselle featuring actress Keira Knightly.
11. Virgin Media Ltd trading as Virgin Mobile, 6 March 2013
A four-page wraparound advertising Virgin Mobile, in particular that insurance is “included on all [Virgin Mobile’s] sensational tariffs” and that there was “no need to worry…even if you leave it on the train”.
The FSA challenged whether the phrase “no need to worry…even if you leave it on the train” was misleading because the insurance, according to the terms and conditions, did not cover unattended phones and was also dependant on users having activated a security app on their handset.
Virgin stated that the insurance covered all instances of accidental loss and suggested that a customer who accidentally left their phone on a train was distinct from a customer who made a conscious decision to leave their phone at the risk of loss or theft. Virgin stated that the requirement for customers to activate the security app was set out clearly in the terms of the policy and that customers were sent text messages within 14 days of the policy start date advising them of the condition and providing an activation link. Virgin also stated that the first 14 days were covered regardless of whether or not the customer had activated the app. Virgin relied on statistics in relation to the number of claims accepted in cases of handset losses on public transport.
The ASA agreed with Virgin and did not uphold the complaint. It took the view that customers would understand from the advert that their phone would be covered by the insurance policy if they inadvertently left it on public transport. The ASA referred to the fact that the terms and conditions set out the restrictions in relation to the initial 14 day period and the security app. It took the view that the requirements in relation to the app were not material to the claim subject to the complaint.
12. Addison Lee plc, 13 March 2013
An email from Addison Lee stated that, over the festive period, it would run a priority service for 10 minute pick-ups in central London for priority account holders.
The statement regarding 10 minute pick-ups in central London was challenged as misleading and questions arose as to whether it could be substantiated due to complainants having to wait significantly longer than the advertised 10 minutes.
Addison Lee explained that the claim was based on data which demonstrated that, even during its busiest periods in the month of December, the average pick-up time had been less than ten minutes. Addison Lee added that, as December was by far its busiest month, the data provided would have represented longer waiting times than other months of the year.
The ASA upheld the complaint. The ASA considered the claim “10 minute pick-up in central London” to be an absolute claim and that without suitable qualification consumers would have expected pick-ups to have been within 10 minutes, except in exceptional circumstances. The ASA pointed out that the claim did not even state that the time quoted was an average. The ASA also said that, as the email referred to the “festive period”, evidence of pick-up times in December alone was not sufficient and evidence that pick-up times were typically within 10 minutes over Christmas and New Year was required to substantiate the claim.
This decision reflects the ASA’s strict treatment of specific claims that are not sufficiently qualified and emphasises the need for evidence in support of such claims to be specifically relevant to the claim made and not just to the advertiser’s goods/services generally. This adjudication can be compared with that for Reckitt Benckiser above, both demonstrating the need for care if relying on averages.
13. Equus Health Ltd, 6 March 2013
An ad on Equus’ website for its food supplement for horses, Gastro-Kalm, claimed that Equus strived to bring consumers “the best natural based products for everyday equine problems”.
One complaint was as to whether the claim in relation to “natural based products” was misleading because the complainant understood that Gastro-Kalm was made from activated charcoal, which is not a natural product.
Equus stated that many natural products underwent processing to enhance their qualities and to make them more user-friendly but were nevertheless sill considered to be “natural”. Equus stated the activated charcoal used in Gastro-Kalm was made from hardwood and provided information on the added ingredients. The product manufacturer stated that both the activated charcoal and the additional ingredients in Gastro-Kalm were natural. It stated that the activated charcoal was “obtained from vegetable matter” and also highlighted that the claim only referred to “natural based” products.
The ASA took the view that the claim implied that Gastro-Kalm would be principally made from naturally occurring ingredients but did not go so far as to suggest that no manufacturing processes would be involved in its creation. Further, the ASA noted that the activated charcoal used in the product was made from hardwood, a naturally occurring substance and therefore concluded that Gastro-Kalm was made from natural ingredients. This complaint was therefore not upheld.
Although this decision relates to a specialist horse product, it nevertheless provides useful guidance as to the ASA’s considerations when assessing complaints that challenge claims that products are “natural”. The fact that the charcoal used here was produced from hardwood, a naturally occurring product, was a factor in the ASA’s decision to not uphold the complaint. Further, this decision demonstrates that the ASA will take a pragmatic approach to manufacturing processes and it will not deem products based on natural substances to be unnatural purely due to the fact that it goes through a manufacturing process.
14. Volkswagen Group UK Ltd trading as Audi, 27 March 2013
Claims on the Audi website stated “The Audi A3 16 TDI is the most fuel efficient Audi ever returning a quite remarkable 68.9mpg on a combined cycle”.
A purchaser of the car challenged whether the claim “68.9 mpg” was misleading and could be substantiated because the complainant had not been able to achieve that level of fuel consumption.
Volkswagen stated that the fuel consumption figure had been obtained from manufacturer’s tests that it had carried out in accordance with EU law. Volkswagen argued that such figures were provided to enable strict comparisons between different vehicles and models since differing real life driving conditions could otherwise have a bearing on results achieved and that the use of such figures was completely standard across the industry.
The ASA upheld the complaint. The ASA considered that it would not have been clear to the average consumer that the figure quoted was based on a standardised test and it was therefore not necessarily representative of what they would achieve when driving the car themselves. The ASA considered that Volkswagen should have qualified the figure to make clear to readers that it was based on an EU test for comparative purposes and may not actually reflect real driving results.
This adjudication highlights the value of using additional text to qualify headline claims. A simple qualification could have been included in small print on the website which would have easily addressed the issue.