This article provides a selection of the most interesting ASA adjudications from October and a summary of the key issues considered in those adjudications.
This month the ASA considered number one claims from Virgin Media, “truly unlimited internet” claims from T-mobile, and looked at the sufficiency of tests used to substantiate claims that a detergent has “unbeatable results” and that using a particular fuel can save consumers money. In addition, this month sees, for the first time, the ASA identifying on its website traders who have continued to make claims on their digital sites that do not comply with the Codes, despite repeated requests for changes from the ASA compliance teams. Five traders were listed in October: Vistaprint, Samantha Pearce, Life Healthcare, Allan Sweeney and Home Shopping Selections Ltd.
COMPUTERS AND TELECOMS
- Virgin Media Limited, 19 October 2011
This decision concerned adverts in a PC gaming magazine for the internet service provider, Virgin Media. One advert included the text “Uninterrupted online game play with Virgin 50mb Broadband” and the adverts described the service as “the best for online gaming”.
The complainant challenged whether the claims that the service was the best for online gaming was misleading because he believed that the service suffered from significant jitter.
The ASA upheld the complaint, finding that the comments “best for online gaming” alongside other claims including “So what would it be like to have the UK’s best gaming broadband? a magical connection that solved all those problems...” gave the overall impression that the service was superior to other broadband services for gaming.
Virgin referred the ASA to the Ofcom report “UK Fixed Broadband Speeds”, stating that the claims in the advert were substantiated by this report. However, they did not explain how the report substantiated some of the claims and the ASA noted that the Ofcom report identified that on average across the whole day and during peak times, Virgin’s 50 Mbit/s service had higher upstream jitter than all other services, aside from Virgin’s own 20 Mbit/s service.
Because it understood that Virgin’s service suffered from significant jitter and that this was a significant factor affecting game performance, the ASA concluded that the overall impression given by the adverts was misleading.
This adjudication can be compared to the ASA’s previous decision in relation to Virgin Media Limited (July 2011) whereby they concluded that a “best” claim based on download speed only was not misleading (although other aspects of Virgin’s claims were found to be misleading). However, this latest adjudication shows that marketers should take care to consider the nature of the overall impression created by their adverts. In this case, the combination of a number of “best” claims in one advert was seen by the ASA as giving an overall impression that the Virgin Media service was superior to other broadband services for gaming. In this circumstance, more substantial evidence would be required to substantiate the claims.
- Everything Everywhere Ltd t/a T-Mobile UK, 5 October 2011
This decision concerned a website, press and poster campaign promoting T-Mobile’s pay monthly price plan with inclusive internet. All three adverts included the text “truly unlimited Internet”.
Nine complainants challenged whether the claim that the Internet supplied was “truly unlimited” because they believed there were restrictions on the service.
The complaints were upheld. The ASA considered that “Truly unlimited Internet” was a very strong claim and went beyond an “unlimited” claim, for which customers might reasonably expect some limitations, such as a fair use policy. Although the small print in the adverts (“as many MB/GB as you like, but you can’t use your phone as a modem, for peer to peer file sharing or for making internet phone calls”) set out all of the exclusions and restrictions and thereby qualified the claim, the ASA considered that when an advert claims that a plan is “truly unlimited”, any exclusions imposed on this would be contrary to consumer’s expectations based on the absolute nature of the claim. As such, the small print effectively contradicted the strong claim made by the additional word “truly”. As a result the ASA concluded that the claim was misleading.
- PlusNet plc, 19 October 2011
This decision concerned a radio advert for PlusNet broadband. Two men featured in the advert discussing the service. One man said “Get award winning broadband from £6.49 a month. PlusNet. Good honest broadband from Yorkshire... conditions apply”.
A listener challenged whether the advert was misleading by omission because it failed to mention that the price of the service was dependent on location and that customers who lived outside of the “low cost areas” would only be charged £6.49 a month for the first three months and that after that, the cost would go up to either £10.79 or £12.99 a month.
The complaint was upheld. The ASA understood that 77.6% of UK premises were situated in the low-cost areas and would be able to obtain the broadband for the advertised price of £6.49 a month on an ongoing basis. However, the ASA noted that the advert was broadcast nationally and that although the majority of listeners would be able to obtain the service at the advertised price, large areas of the UK were not low-cost areas.
Although acknowledging that they went some way to alerting consumers to the fact that they might not be able to get the broadband at the advertised price, the ASA did not consider that the inclusion of the qualifiers “from” and “conditions apply” sufficiently informed consumers that the offer was only available in specific locations. The ASA considered that the geographical limitation was a significant condition of the offer which should have been made clear in the advert. As a result the ASA concluded that the advert was misleading.
Material limitations or conditions on an offer should always be made explicit, simple qualifiers may not go far enough. However, it is interesting to note that the ASA did not agree with the complainant’s assertion that the advert should have also stated the charges for those customers living outside of the low-cost areas. The ASA, taking a practical approach, did not consider this necessary in the context of a short radio advert, since, provided that they were made suitably aware that they might not get the broadband at the advertised price due to their geographical location, consumers could find this information elsewhere. The main issue about this advert was that the qualifying wording did not go far enough to explain that there were limitations to the offer and to explain the nature of these limitations.
- Telecoms World plc, 5 October 2011
This decision concerned a sponsored search advert and claims on the Telecoms World website that included the text “….Telecoms World business line rental is only £8.99 per month”. Small print stated “It is a UK requirement for a business to run care level 2 with their land line.”
Complaint / Decision
XLN Telecom Limited challenged whether the claim that the line rental was “only £8.99 per month” was misleading because they believed that the ability of customers to take up the advertised cost was dependent on a care level package being taken at the same time. In addition, they challenged whether it is a “UK requirement” to have a care level 2 package because they believed this not to be the case.
The ASA upheld the complaints on the basis that consumers would understand the advert to mean that the business line rental was available at the stated price without any further non-optional charges, and as a result, the qualifying text contradicted the impression made by the headline price and savings claim (as opposed to qualifying it). Additionally, the ASA noted that it was not a UK requirement to have the care level 2 package and in that respect, as well, the advert was misleading.
- PZ Cussons (UK) Ltd, 26 October 2011
This adjudication concerned a TV advert for Carex handwash that stated “faster acting Carex kills 99.9% of bacteria in just seconds….” On-screen text stated “Tested under 30 second conditions”.
The complainant challenged whether the claim “kills 99.9% of bacteria in just seconds” was contradicted by the on-screen text reference to 30 seconds and therefore made the advert misleading.
The complaint was not upheld. PZ Cussons provided evidence that the World Health Organisation hand-wash guidelines recommended that time required to wash hands was between 10 and 20 seconds. Additionally, clinical data showed that all participants saw a 99% kill rate after 30 seconds.
The ASA considered that, objectively, “in just seconds” could mean anything between two and 59 seconds and the phrase was therefore open to interpretation. Although the ASA considered that some viewers might infer that “kills 99.9% of bacteria in just seconds” would mean that 99.9% of bacteria would be killed after just two or three seconds of washing their hands with Carex, they considered that the on-screen text “Tested under 30 second conditions” made it clear that “in just seconds” meant anything up to 30 seconds. The ASA therefore considered that the headline claim “kills 99.9% of bacteria in just seconds” was not contradicted by the onscreen text and therefore the advert was not misleading.
It is interesting that the ASA interpreted “just seconds” to mean anything up to 59 seconds. This seems a somewhat generous interpretation, particularly in circumstances where the ASA also took the view that viewers would interpret this as being only two or three seconds.
- LivingSocial Limited, 12 October 2011
This adjudication concerned an email from LivingSocial and an advert on LivingSocial Ltd’s website which offered a discount at the Barcelo Troon Marine Hotel. The text stated “Overnight Getaway for two including breakfast…” The offer was priced at £139 stated to be equivalent to a 63% saving, and “regularly £380”.
The complainant challenged whether the advert was misleading because he believed the saving was exaggerated.
The ASA upheld the complaint. The ASA considered that the advert suggested that the package was a regular offering by the hotel because it stated “regularly £380”. However, they noted that this was not a package normally offered by the hotel. In addition, there was evidence that, when added up, the elements of the pre-discount package came to £94 less than the value quoted in the advert. Furthermore, the advert did not make clear that the package included a fee for late check-out and this should have been made clear in the advert. On this basis, the ASA considered that the advert exaggerated the saving and was misleading.
This is another adjudication against one of the growing band of “group purchasing” web sites which are of increasing popularity. We have previously seen a number of adjudications against Groupon, see, for example, July 2011 and September 2011. As with those decisions, when presenting savings claims, the value of the saving must be accurate and based on the price at which the goods or services are normally offered.
- Merlin Attractions Operations Ltd, 19 October 2011
This decision concerned claims on a website for Warwick Castle that stated “1 Day admission to Warwick Castle” and “Prices from £10.00 excluding VAT plus VAT £2.00, total £12.00”. On making a purchase, when selecting payment method, depending on the type of card used for payment, an additional £1 or £2 charge was added to the purchase price.
The complainant challenged whether the website was misleading because the initial price claims did not mention the non-optional card fee and the prices shown on the website were VAT-exclusive.
The ASA upheld the complaints. The ASA noted that CAP Code rule 3.18 stated that “Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers” and that “VAT-exclusive prices may be given only if all or most consumers pay no VAT or can recover VAT”. Because all buyers would have to pay a card fee, and all or most of Merlin’s customers paid VAT for these tickets, the ASA concluded that the initial price claims were misleading and breached the Code. This is notwithstanding that the VAT inclusive figure was also included on the website. (The ASA noted in the adjudication that Merlin were seeking to make a point as they were involved in a campaign concerning VAT and UK visitor attractions.)
Similarly, in Flightsandfly (19 October 2011), the ASA concluded that claims on a travel website for flights at listed prices that did not include non-optional taxes were misleading and breached the Code.
- The Island Furniture Company, 12 October 2011
This decision concerned text on the Island Furniture Company’s website in June 2011 that stated “MASSIVE SPRING SALE HURRY! Must end Midnight on Sunday!”
The complainant challenged whether the claim “HURRY! Must end midnight on Sunday” was misleading because she understood that this text had appeared for several months.
The complaint was not surprisingly upheld. The ASA acknowledged the Island Furniture Company’s comments that they often repeated sales if they had been successful in the past and that their sales would normally involve a particular time frame, which was determined either by a specific end date or by the quantity of stock allocated to the sale. However, the ASA noted that this did not explain why the claim “HURRY! Must end midnight on Sunday” had been on the website for several months. The ASA considered that the claim implied that the promotion was shortly due to end. Because this was not the case, and the claim continued to appear on the website for a length of time, the ASA found that the advert was misleading.
The practice of falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice, as well as being contrary to the Code, is also one of the commercial practices, identified in the Consumer Protection from Unfair Trading Regulations 2008, which are in all circumstances considered unfair. Such practices can therefore also attract criminal penalties. In addition, this was one of the misleading pricing practices picked up by the OFT in its December 2010 report on the advertising of prices. The OFT found that time limited offers have the effect of increasing consumer perceptions of the value of the offer, reducing shopping around and may mislead consumers into buying a product which they would not have bought if there was not a time limited offer associated with it. Marketers should not imply that an offer is time limited unless it genuinely is. Any wording that creates a sense of urgency must be carefully considered so as to avoid misleading the public.
- Unilever UK Limited, 5 October 2011
This decision concerned TV, poster and press adverts for Persil Small and Mighty. The poster featured the text “unbeatable results even in 30 minutes. The press advert included extended text “Unbeatable results even in 30 minutes. Our new improved formula gives you unbeatable cleaning on the toughest kids’ stains even when you switch to short and cool cycles”. The voice-over in the TV advert stated “unbeatable on stains like blood and mud, even in 30 minutes. New Persil Small and Mighty, unbeatable results” with on-screen text stating “versus competitors in identical washes”. The TV advert included imagery of children playing and getting their clothes dirty.
Procter and Gamble UK challenged separately whether the claims to “unbeatable results in 30 minutes” and “unbeatable on stains like blood and mud, even in 30 minutes ...” could be substantiated.
The ASA upheld both complaints.
Unilever presented details of trials that they had conducted comparing the advertised product with three leading competitor gel and liquid detergents and an earlier Small & Mighty formulation. The trials examined relative performance across a number of stain types and through both a 30-minute cooler cycle and a standard longer/warmer cycle. The ASA noted that the results of the trials showed that the differences in stain removal between Persil Small & Mighty and the competitor products were overall not statistically significant.
In addition, Unilever informed the ASA that, because Persil Small & Mighty is a liquid detergent, the trials had compared Persil Small & Mighty only with leading competitor gel and liquid detergents. However, because there was no indication in the adverts that comparison was being made only against liquid/ gel detergents, the ASA considered that the average consumer would interpret the “unbeatable claims” as comparative claims under like-for-like circumstances against all competitor detergents, including powders and tablets. The ASA also considered this to be the case in relation to the TV advert. They found that the on-screen text "versus competitors in identical washes" did not make clear that the "unbeatable" claim was being made against competitor gel and liquid detergents only and did not include other detergents offered by competitors including tablets and powders. The ASA therefore concluded that the advert misleadingly implied the product was “unbeatable” compared to all competitor brand detergents with stain removing qualities.
Because Unilever had not presented comparative data on all competitor products that were designed to provide cleaning and stain removing power, the ASA considered that the "Unbeatable" claim had not been substantiated and found the adverts to be misleading.
The ASA also noted that the poster advert claimed “unbeatable results even in 30 minutes”, but gave no further information about which element of performance was included in this “unbeatable” claim. Without further clarification, at the very least some reference to the data relied upon, the ASA considered that consumers would assume that it referred to all elements of cleaning performance and was a general performance claim. Because the data provided by Unilever did not examine comparative elements of performance other than stain removal, the ASA considered that the evidence was not directly relevant to the claim and therefore, the advert was misleading.
Even in the TV advert in relation to which the ASA considered that the voiceover “unbeatable on stains like blood and mud..” made it clear that the “unbeatable” claim was intended to relate to stain removal specifically, the ASA still found the advert to be misleading because the additional stain removal data did not include any comparative data on competitor detergents other than gel and liquid detergents.
This decision demonstrates the need for trial data that adequately supports the claims being made, taking into account also any implied claims. Unsurprisingly, in this decision, the ASA required a high level of substantiation for such “unbeatable” or top parity claims and expected there to be no limitations on the type of competitor product with which the advertised product was being compared. In more general, less absolute comparative claims, it may be possible to limit the basis of the comparison, provided that any limitations on the types of competitor product that the advertised product is being compared with are explicitly included to avoid misleading consumers.
The ASA also considered “unbeatable” claims in another decision which it upheld against CoolShop (12 October 2011). The CoolShop website, selling computer games and consoles, featured claims such as “all the best prices available” and a text in a search box that stated “Search here for unbeatable Price & Service”. Complainants challenged whether these lowest price claims were misleading and could be substantiated. The ASA upheld the complaints. The ASA considered that claims such as “unbeatable price” and “all the best prices available” were objective claims that the CoolShop prices would not beaten for any product. As a result, the ASA would need to see evidence to substantiate this. Because CoolShop had not provided evidence to support the lowest price claims in the adverts, the ASA concluded that the adverts were misleading.
- Apple Panels Ltd t/a Apple Solar Energy, 19 October 2011
This decision concerned regional and national press adverts for a solar panel company. The headline for the adverts was “FREE electricity forever!! Save up to 20% this month only”. Smaller text stated “Generate up to £40, 350 over 25 years*” and the asterisk linked to footnoted text that stated “Energy Saving Trust calculator for a 4MWH system at an export rate of 50% to the National Grid. The adverts also included a bullet point list of text including the claims “System pays for itself in just a few years” and “Earn up to 2x current ISA investment”. Text at the bottom of the advert stated “The UK’s leading solar energy specialists”. The national press advert also included an additional claim “Increase the value of your property”
Complainants challenged whether the following claims in the adverts were misleading and could be substantiated:
- “Earn up to 2x current ISA Investment”;
- “Free electricity forever”;
- “The UK’s leading solar energy specialists”;
- “System pays for itself in just a few years”;
- “Increase the value of your property.”
The ASA upheld all of the complaints. The ASA considered that the amount of return on ISAs would vary between products and, as a result, the comparison with ISA interest rates was unclear and likely to cause confusion for consumers. In addition, the ASA considered that the potential for an investment return from the Solar PV system would need to be supported by documentation that demonstrated the performance of the system in use. Because this had not been provided, the ASA concluded that the claim had not been substantiated and was misleading.
The ASA noted that the Solar PV system required significant installation costs, and therefore considered that the claim that the electricity would be “free” was contradictory and misleading. (The misleading nature of describing something as “free” when there are necessary costs is considered further in LensWay Inc below.)
The ASA considered that the claim that Apple Panels is the “leading” solar energy specialists in the UK would need to be substantiated by evidence that they sold more solar panel systems than anyone else in the UK. Because, no such evidence had been provided, the ASA considered that this claim was misleading.
In relation to the claim that “System pays for itself in just a few years”, Apple Panels provided a summary of income and savings for the solar panel system. The ASA considered that this evidence was not sufficient to substantiate the claim because it was based on estimates of installation costs, energy prices, energy generated by the system and energy exported back to the grid, whereas, they understood that the performance of the system depended on many other factors (e.g. location of the property, fluctuation of electricity prices). As a result, the ASA considered this claim to be misleading.
In relation to the claim that the Solar P.V. system could increase the value of a consumer’s property, Apple Panels stated that it was hardly conceivable that adding a product that would provide a 25-year income that was index linked, and for many years after that would continue to save users substantial amounts of money against fuel costs, would not add value to a property. Apple Panels also provided a newspaper article which apparently supported this conclusion. However, the ASA concluded that this did not adequately support the claim and therefore concluded that it was misleading.
As well as demonstrating care needs to be taken in making “leading” and “free” claims, for which the ASA will generally require high levels of substantiation, this decision is interesting in the light of the likely growth of the development and promotion of energy saving devices such as solar panels and wind turbines, in relation to which the use of this type of “saving” claim is likely to be increasing.
- Shell UK Limited, 19 October 2011
This decision concerned a direct mailing and radio advert for fuel. The direct mailing included the text “Shell FuelSave Unleaded and Diesel are designed to help you save fuel and money. These advanced fuels each have a special formula enriched with a Shell Efficiency Improver combined with a special detergent package – designed to improve your fuel economy from the very first fill.” Both the direct mailing and radio advert stated “Save up to 1 litre per tank at no extra cost”.
Three complainants challenged whether the claim that Shell FuelSave could save up to one litre per tank was misleading because they believed the claim exaggerated the benefits available.
The complaint was upheld. The ASA noted that the adverts stated “may vary according to vehicle” to qualify the fuel savings, but they considered that the claim that consumers would save up to 1 litre per tank at no extra cost implied that the saving would be applicable to all or most vehicles. In relation to “up to” savings claims, the ASA explained that, in order to consider the claim to be substantiated, they generally required evidence to demonstrate that 10% of consumers would be able to attain the maximum saving claimed. The test data provided by Shell showed five cars tested with the fuel. However, one of these was not available in the UK and so was discounted by the ASA. In addition, although each car was tested several times, only two cars achieved an average saving of at least 2%, the level required to support the “up to 1 litre” claim. Shell maintained that, because other organisations had used similar numbers of cars for tests relating to research on environmental issues, their own test methodology was consistent with best practice across the industry. However, the ASA noted that despite the fact that Shell had shown that over 10% of the cars tested had achieved the claimed fuel savings, because they only tested a limited number of cars, overall the data did not constitute adequate substantiation that 10% of all motorists could achieve the saving. As a result the ASA concluded that the adverts were misleading.
This decision provides helpful guidance on savings claims, in particular it should be noted that, in general, the ASA considers that “up to” claims should be substantiated by evidence of 10% of the relevant consumers attaining the maximum saving claimed. However, it is not clear how many cars the ASA expected Shell to have tested in order to be allowed to make that claim.
- LensWay Inc, 12 October 2011
This decision concerned a sales promotion on LensWay UK’s Facebook page that stated “10,000 FREE Eyeglasses. Giveaway: 8th June at 5pm”.
The complainant challenged whether the claim “Free eyeglasses” was misleading because he understood that consumers received a discount voucher for £59.00 and glasses over that price would incur a charge. Furthermore, that the “free” claim was misleading because the consumers had to pay shipping, handling and insurance costs.
The ASA upheld the complaint. The ASA considered that consumers would be likely to understand the claim “10,000 FREE Eyeglasses” in conjunction with the wording “Visit our website and pick your favourite pair of glasses” to mean that all glasses were included in the promotion and that they could purchase any pair of glasses with the discount code. However, they noted that only a selected number of glasses were included in the promotion. The ASA considered that the fact that only a selected number of glasses were included in the promotion was a significant condition to the offer and that this should have been made clear to consumers at the time that they were introduced to the offer on the Facebook page. The ASA noted that inclusion of this condition in the Frequently Asked Questions page was not sufficient because it could be easily missed by consumers. As a result the ASA concluded that the promotion was misleading.
In addition, the ASA reiterated the requirement in the CAP Code that products should not be described as “free” if administration charges apply. Therefore, because consumers had to pay delivery, handling and insurance fees, the ASA considered that the glasses were not free and concluded that the promotion was misleading.
The ASA considers “free” to be an absolute claim, and any conditions applicable to such claim should be set out in the main advert. The fact that some items were marked “coupon not applicable” on the website was, in these circumstances, not considered by the ASA to make sufficiently clear to consumers that such items were excluded from the promotion.
Marketers should also note that describing a product as, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the advert and collecting or paying for delivery of the item is one of the commercial practices, identified in the Consumer Protection from Unfair Trading Regulations 2008, which are in all circumstances unlawful. Such practices can therefore also attract criminal penalties.
In a similar decision, VistaPrint Limited (12 October 2011), the ASA found an internet display advert offering “FREE business cards” to be misleading because the advert did not make clear that a postage and processing charge applied. Both decisions act as a reminder to marketers to set out all applicable administrative charges so as to avoid misleading consumers.
Similarly, the, United Carpets plc decision (19 October 2011), concerning a TV advert for a retailer of carpets included the offer that “if you can get a better like for like carpet deal, we’ll give you the carpet free and we’ll fit it for free” was challenged because it did not make clear that, to take advantage of the free carpet and fitting offer, the consumer had to supply a sample of the carpet and underlay as well as a written quote from the competing company. The ASA upheld the complaints on the basis that the requirement to provide samples of the competing carpet and underlay were significant conditions that should have been made clear in the adverts. Onscreen text stating “Like for like quotation required prior to purchase. Conditions apply.” was not sufficient to overcome this.