This summary provides a selection of the most interesting ASA adjudications in July and highlights the key issues considered in those adjudications.
Of note this month were a number of adjudications on complaints of irresponsible advertising, particularly in relation to alcoholic beverages. While a challenge against a TV ad for Old Speckled Hen beer was not upheld, an ad for Jagermeister was held to be irresponsible for linking alcohol with tough, daring behaviour. Interestingly, a similar theme also appeared in a ruling regarding the motoring sector, where an ad for Jaguar Land Rover was held to be irresponsible for encouraging unsafe and dangerous driving. In the health and beauty sector a Groupon ad was also found to be irresponsible for not informing customers of the risks involved with the treatment it was promoting.
Also of particular interest is an upheld adjudication in relation to price establishment, which is often a contentious area. A promotion on the Tesco website listed a pack of Hobgoblin beer as being priced at £4.50 during a sales promotion, claiming that this would represent a saving of 49p for the consumer on the original pre-promotion price. However, the ASA considered that the product had not been sold at the higher pre-promotion price of £4.99 for long enough to justify this claim and that the ad was therefore misleading. This adjudication comes only shortly after the high profile court proceedings and fine imposed on Tesco relating to misleading promotional pricing of strawberries.
1. Greene King Brewing and Retailing Limited, 23 July 2014 (a TV ad for Old Speckled Hen beer was found not to be irresponsible because it was unlikely to strongly appeal to under 18-year olds)
2. Unilever UK Limited, 23 July 2014 (a TV ad for PG Tips pyramid bags was held not to be misleading as it did not exaggerate the capability and performance of the product. It was also found not to denigrate Tetley tea bags)
3. Dr Oetker (UK) Limited t/a Chicago Town, 30 July 2014 (a TV ad claiming that Chicago Town pizzas had been “Voted No.1 vs Domino’s” was held to be misleading as the claim had not been substantiated)
4. Mast-Jaegermeister UK Limited, 30 July 2014 (a TV ad for Jagermeister was held to be irresponsible for linking alcohol with tough, daring behaviour)
5. Procter and Gamble UK, 2 July 2014 (a claim that a TV ad for a denture fixative showing a woman biting into an apple was misleading because it exaggerated the efficacy of the product was held to be unsubstantiated)
6. GlaxoSmithKline UK Ltd t/a MaxiNutrition, 16 July 2014 (A TV ad for MaxiNutrition products, which also appeared on the advertiser’s YouTube channel was held to be in breach of various provisions of the BCAP and CAP Codes since claims made in the ad did not appear on the list of authorised health claims for the products)
7. Anthony Nolan, 16 July 2014 (A complaint relating to an ad claiming “We’ve found a cure for blood cancer” was not upheld)
8. MyCityDeal Ltd t/a Groupon, 23 July 2014 (a website promotion for mole removal was held to be irresponsible as it did not inform customers about the potential risks involved with the treatment)
9. Tesco Stores Limited and Nutricia, 30 July 2014 (a direct mailing which made health claims in respect of the benefit of a number of substances was found to be in breach of the Code as these claims had not been registered on the EU Register of Nutrition and Health Claims Made on Foods)
10. De Vere Group Ltd, 2 July 2014 (a complaint challenging the availability of hotel rooms at the advertised rate of £99 per room per night during an offer period was upheld)
11. British Airways plc, 30 July 2014 (search results on the British Airways website which purported to show “Outbound direct flights” were found to be misleading as there were stops in the relevant journeys)
12. Jaguar Land Rover Ltd, 16 July 2014 (a complaint that a video ad featuring an actor driving in an underground car park and on a public road was socially irresponsible and encouraged unsafe driving was upheld)
13. Chandlers Garages (Brighton) BMW, 16 July 2014 (a radio ad for a car dealership which featured one of the radio station’s regular presenters was found to be obviously distinguishable from editorial content)
14. 24.7 Tradesmen (Glasgow) Ltd, 16 July 2014 (a complaint that awarding a used iPad as a prize to the winner of a competition was unfair was upheld)
15. Tesco Stores Limited, 30 July 2014 (claims made in a promotion on the Tescos website were held to be misleading because the product had not been available at the higher price for a reasonable period of time and the product continued to be sold at the lower price following the advertised end of the promotion)
16. Hutchison 3G UK Ltd t/a Three, 9 July 2014 (Two complaints that a TV ad claiming that customers could call 0800 numbers for “free” were upheld)
17. TalkTalk Telecom Ltd t/a TalkTalk, 9 July 2014 (Three complaints that a claim by TalkTalk to provide “Britain’s lowest priced totally unlimited broadband” in a mailing, press ad and on the provider’s website, was misleading were upheld)
18. Electronic Arts Ltd t/a EA Games, 2 July 2014 (A complaint that an ad promoting a free mobile app game was misleading, as gameplay was severely limited unless in-app purchases were made was upheld)
19. Kimberley-Clark Ltd, 16 July 2014 (A complaint that various ads promoting Andrex toilet tissue were misleading as they exaggerated the benefits of the product relative to comparator products was not upheld)
20. Love Sofas Limited, 23 July 2014 (the Love Sofas website was not held to be misleading for stating that it represented “the UK’s largest sofa website…” as the claim could be substantiated)
FOOD AND DRINK
1. Greene King Brewing and Retailing Limited, 23 July 2014
A TV ad for Old Speckled Hen beer featured a fox puppet sitting at the bar of a pub dressed in a tweed jacket and cravat. He said, “Now we Brits have some strange customs but it strikes me as odd that at Easter we search for chocolate eggs hidden by a giant bunny”. A man in a white rabbit costume walked in and removed the head of his costume placing it on the bar, at which point the fox continued, “Well, I prefer the usual to the unusual so I’ll skip the eggs and go straight for the hen”. He then turned to the rabbit head and said “Cheers Big Ears!”
A viewer, who saw the advert being aired at around 18.00 on a Sunday, challenged whether the ad was irresponsible and breached the Code because they felt that fox would appeal strongly to children.
The ASA did not uphold the challenge. Greene King Brewing and Retailing Ltd argued that they had specifically designed their character, “Henry the Fox”, to appeal to mature adults and the ASA accepted this notion. Whilst acknowledging that talking puppets are often used in programmes and ads directed towards children, the ASA considered that the fox’s dress, behaviour and appearance were aimed at adults, observing that the fox’s deep voice, language and deadpan delivery were unlikely to appeal to children.
The ASA also considered that the use of a pub as the setting for the ad, as well as the Easter bunny character removing the head of his costume, emphasised the general adult tone of the advert. Accordingly the ASA considered that the ad was not irresponsible as it was unlikely to appeal to children.
This adjudication is reminiscent of an ad for Fox’s biscuits from back in October 2008, where the complaint was that an ad featuring a panda in a leather chair was likely to appeal to children. In that case, as here, the general feel of the ad was sufficient to make clear that it was not directed at children.
2. Unilever UK Limited, 23 July 2014
A TV ad featured Jonny Vegas and a puppet monkey. Jonny Vegas said “Monkey, you know how you always say, ‘there’s no other tea to beat PG’…what if you’re lying?” The monkey then made two cups of tea, one with a round bag and one with a pyramid bag, and stated, “PG Tips uses pyramid bags, so if we test one against a regular bag…you’ll see the tea has got more room to move, freeing the great fresh taste for a perfect cuppa.”
A competitor, Tata Global Beverages (Tata) who manufacture Tetley tea bags, challenged whether;
1. the visual demonstration was misleading because it exaggerated the performance of the product;
2. the claim in the ad that in pyramid bags “the tea has more room to move freeing the great fresh taste” was misleading and could be substantiated because they believed it implied the teabag would produce a better tasting product; and
3. the comparison test featuring a round teabag denigrated Tata’s brand “Tetley” because they believed they were an identifiable competitor.
The ASA did not uphold any of the three challenges.
1. The ASA accepted that the comparison test used in the ad was intended to imitate customer behaviour and considered that viewers would interpret the on-screen demonstration as a basic representation of a simple experiment rather than a scientific or sophisticated process.
Although Tata produced its own evidence which sought to illustrate there was no difference in the brewing efficacy of the two bags, the ASA considered Unilever UK had provided sound test results which clearly showed that the infusion of tea at various time intervals was greater in a pyramid bag than a round one. Given the ASA felt that most consumers would interpret the test as meaning pyramid bags were more efficient at brewing, the ASA accordingly found that the ad was not misleading as it did not exaggerate the capability of the product.
2. The ASA also felt that viewers would be likely to interpret the claim “the tea has more room to move freeing the great fresh taste” as meaning that the pyramid bag would afford the tea leaves more movement which would in turn release more tea flavour. To substantiate this claim Unilever UK provided modelling and measurements which demonstrated that the tea in the pyramid bag would have more space to move. The ASA therefore concluded that the claim was not misleading.
3. The ASA acknowledged that neither the comparison test nor the ad in general made any reference to the ‘Tetley’ brand and also understood from further evidence provided by Unilever UK that there were several brands of teabags on the market which were in a round shape and therefore considered that viewers would not be likely to make a link between the teabag being round and the Tetley’s brand. They therefore concluded that the ad did not denigrate Tetley.
This is a very good example of a successful comparative ad, where the substantiation was available to support carefully crafted claims about the product.
3. Dr Oetker (UK) Ltd t/a Chicago Town, 30 July 2014
A TV ad promoting Chicago Town Takeaway pizzas contained on-screen text which claimed that they had been “VOTED No.1 VS DOMINO’S.” The ad also featured a voice-over which stated that “Nothing delivers like Chicago Town Takeaway, voted number one versus Dominos” and showed a man ‘delivering’ a Chicago Town Takeaway pizza. Text at the bottom of the screen stated “170 respondents preference on 1 flavour, description, price and taste. Chicago Town 39%, Competitor A 37%, Domino’s 24%”.
A viewer challenged whether the claim “VOTED No.1 VS DOMINO’S” was misleading and could be substantiated.
The ASA upheld the complaint. Although the ad featured only one flavour of pizza, the ASA did not consider that it was clear the claim “VOTED No.1 VS DOMINO’S” only applied in respect of that one flavour. The ASA considered that the ad implied a more general preference for the Chicago Town Takeaway range over the Domino’s range. Furthermore, although the ASA agreed with Dr Oetker UK’s assertion that the results of the preference test were both statistically significant and taken from a representative and balanced sample, the ASA concluded that the qualifying reference to “1 flavour” contradicted the more general impression made by the claim. The ASA also considered that a preference test of just one flavour was not enough to substantiate the more general claim “VOTED No.1 VS DOMINO’S”. In consideration of the above, the ASA concluded that the claim made in the on-screen text and the voice-over was misleading.
Finally, the ASA also felt that the claim “VOTED No.1 VS DOMINO’S” was portrayed as being the result of a head-to-head poll between Chicago Town Takeaway and Domino’s. However, the ASA observed that the survey involved a third participant (“Competitor A”) and that the structure of the survey did not make it possible to determine which of the other pizzas (Chicago Town Takeaway and Domino’s) the 37% of the sample who voted for Competitor A would have selected. Given this conclusion, the ASA considered that it was misleading to imply Chicago Town Takeaway had beaten Domino’s in a head-to-head test.
This adjudication shows how it is important to take care with claims being made, to ensure that a claim is not broader than can be supported by available substantiation, and also that care needs to be taken only to qualify headline claims, and not to contradict them. The ASA also always looks carefully at “No 1” claims and requires robust comparative data by way of support.
4. Mast-Jaegermeister UK Limited, 30 July 2014
A TV ad, promoting Jaegermeister, showed a group of male friends leaving for a road trip in the early hours of the morning. The men were shown at various stages of their journey travelling through mountainous and rugged terrain during winter, with one specific scene showing them pushing their truck through a snow drift. Following their arrival at their destination, the men were shown carrying surf boards into the sea and surfing large waves before returning to shore and congratulating one another. The final scene of the ad showed the men at a bar in a log cabin, where they were each given a shot of Jaegermeister in a frozen glass before raising these glasses to each other whilst the voice-over stated, “Jaegermeister. It runs deep”.
The Youth Alcohol Advertising Council challenged whether the ad was irresponsible, because it:
1. linked alcohol with tough, daring behaviour;
2. encouraged irresponsible and immoderate drinking; and
3. implied that alcohol was key to the social success of the occasion.
The ASA upheld the first challenge but did not uphold the last two.
1. Mast-Jaegermeister UK Limited (Jaegermeister) informed the ASA that the ad was set in Iceland and argued that millions of people in Iceland, North America and Northern Europe regularly drive in icy conditions as a part of everyday life. They also stated that surfing is a popular and common sport in Iceland and they had specifically chosen actors who looked like experienced ‘outdoor’ men who demonstrated a high degree of stamina and skill throughout the ad. In light of these considerations Jaegermeister argued that the expedition in the ad was not exceptional and was in no way “tough” or “daring” as per the complaint.
The ASA, however, considered that driving in difficult, wintery conditions and surfing in very cold and rough waters clearly represented potentially dangerous activities which required ‘daring’. The ASA also felt that, although there was no suggestion in the ad that the men had been consuming alcohol before or during the expedition itself, the fact that the ad contained both alcohol and dangerous activities meant that a clear association was made between alcohol and ‘tough” or “daring” behaviour. On this basis therefore the ASA concluded that the ad was irresponsible and upheld the complaint on this basis.
2. The ASA noted that at the very end of the ad the men were shown being served one shot of Jaegermeister each. The ASA considered that, although shots are conventionally consumed quickly, in this specific instance there did not seem to be any urgency amongst the men to consume their drinks quickly, nor was there any indication that they were drinking them in a reckless manner. The ASA also considered that, as only one round of shots was shown, the ad did not encourage immoderate drinking. Therefore, the ASA did not uphold this aspect of the complaint.
3. The ASA considered that a large portion of the ad was dedicated to showing the group of men journeying to the sea and then surfing at their destination. There was no suggestion in the ad that alcohol was consumed during these scenes and the ASA noted that for this part of the ad the men were all shown as being happy, having fun and working together. The ASA considered that the introduction of alcohol later in the ad did not result in a material shift in the mood or interaction of the group and that it was therefore only incidental to their enjoyment of the experience. In light of these considerations the ASA concluded that the ad did not imply alcohol was fundamental to the successful social interaction in the ad, and thus it did not uphold the claim.
This adjudication follows a similar approach to that taken in a series of adjudications for Estrella beer, fromNovember 2010, November 2011 and October 2012. Although it is clearly helpful for the advertiser to set the scene without showing the consumption of alcohol, the question of whether there is some association with, in this case, daring behaviour, may be looked at more broadly.
5. Procter and Gamble UK, 2 July 2014
A TV ad promoting denture fixative Fixodent, showed a computer-generated image of a partial denture in place with a woman standing on it become unsteady due to a tongue pushing against the denture. A second denture showing the word “Fixodent” underneath was then shown and the woman said “Thanks to its formula your gums become one with your denture, so it reduces movement of the denture and you forget about it” whilst biting into an apple. A voice-over suggested that Fixodent gave a 10 time stronger hold.
Complaint / Decision
The complainant claimed that the ad was misleading because the scene in which the woman bit into an apple exaggerated the efficacy of Fixodent.
The ASA did not uphold the complaint. Although the ASA recognised that not all denture wearers would be able to eat apples in the way suggested, it did not consider that the ad would be interpreted as claiming that all denture wearers who used Fixodent would be able to do so, but merely as an illustration that some users would be able to eat apples when using the product who would not be able to do so without it. It also concluded that the images of the woman biting into an apple were merely illustrative of the consumer’s increased confidence in carrying out day to day tasks whilst using the product and that it did not exaggerate the product’s efficacy.
In support of the ASA’s decision, the product’s manufacturer Procter and Gamble had provided evidence from two studies that the use of the product would stabilise dentures sufficiently to allow users to eat an apple in the way shown in the ad. One study estimated the bite force required to incise various foods, including an apple, and showed that the force required to dislodge a denture was clearly below this threshold. A second study showed that denture adhesive resulted in statistically significant increases in both stability and bite force and demonstrated that the increases in bite force stability that could be achieved by use of the product would cross the threshold required to bite hard foods, including apples.
Clearcast also stated that they endorsed Procter & Gamble’s evidence and response to the complaint. Their dentistry consultant had reviewed the evidence and the story-board and was happy with the script. Clearcast believed that the ad was a realistic illustration of how the product worked and that it did not mislead the viewer.
The decision by the ASA is unsurprising and was largely based on evidence from a number of studies which showed that claims made in the ad could be independently verified.
6. GlaxoSmithKline UK Ltd t/a MaxiNutrition, 16 July 2014
A TV ad, which was also shown on the advertiser’s YouTube channel, showed people participating in various strenuous sports. The voice-over stated, “Sometimes you need to dig deep. During hard exercise, breakdown happens deep inside your muscle fibres.” This was accompanied by an animation showing the fibres in the muscle of a boxer’s arm breaking down and then reforming. The voice-over stated “MaxiNutrition helps provide your muscles with the proteins they need to recover, helping make you stronger and perform better. MaxiNutrition proteins aid muscle recovery. MaxiNutrition. You, stronger.”
Complaint / Decision
The complainant challenged the two claims, which were health claims that needed to be authorised on the EU Register under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the “Regulation”):
1. “MaxiNutrition helps provide your muscles with the proteins they need to recover, helping make you stronger and perform better”; and
2. “MaxiNutrition proteins aid muscle recovery”.
Both complaints were upheld by the ASA. GlaxoSmithKline were told to ensure that future ads did not exaggerate the health benefits of a product and to ensure that they retained the meaning of any authorised health claims if they reworded them.
The EU Register included approved claims that “Protein contributes to a growth in muscle mass” and “Protein contributes to the maintenance of muscle mass”. MaxiNutrition claimed that the references in the ad to ‘muscle recovery’ and ‘aid muscle recovery’ accurately expressed the health relationship within the approved health claims.
The ASA disagreed. Although many products within the MaxiNutrition range contained protein in sufficient quantities to permit the authorised health claims, some products contained no protein at all. Although it was acknowledged that the ads included references to proteins, they did not specify the products to which the claims applied and referred generally to MaxiNutrition e.g. “MaxiNutrition helps provide” and “MaxiNutrition, You, stronger”. Since this could be misconstrued as implying that the claims related to the MaxiNutrition range as a whole, including those products that did not contain protein, the ASA ruled that those products were not permitted to use the two authorised health claims relating to protein and therefore that the ad was in breach of various provisions of the BCAP and CAP Codes.
Although the Regulation allows for some flexibility in the wording used, provided that the reworded claim is likely to have the same meaning for consumers as that of the authorised health claim, the ASA considered that this test was not made out in the instant case. Since the authorised claims “Protein contributes to a growth in muscle mass” and “Protein contributes to the maintenance of muscle mass” related to increasing muscle mass and maintaining it, rather than repairing muscle during hard exercise or recovery after it, which was the overall impression given in the ad, the ASA held that it did not consider that the reworded claims would have the same meaning for consumers as that of the authorised health claims.
Furthermore, in conjunction with the visuals in the ad showing successful performance of individuals participating in strenuous physical exercise, the ASA considered that the claim “helping make you stronger and perform better” exaggerated the benefit of the advertised product.
This decision highlights the importance for those making claims in an ad that a product confers health benefits to ensure that they adhere as closely as possible to the wording approved within the EU Register.
7. Anthony Nolan, 16 July 2014
A poster, press ad and the website for the Anthony Nolan Trust claimed the following:
1. The press ad stated “WE’VE FOUND A CURE FOR BLOOD CANCER. PLEASED TO MEET YOU. At Anthony Nolan, we work tirelessly to cure blood cancer every day. But for each person we’re able to help, there’s always one we can’t. And that’s where you come in. With you on board, we can cure blood cancer more often”.
2. The poster stated “WE’VE FOUND A CURE FOR BLOOD CANCER. PLEASED TO MEET YOU. Blood cancer. Be the cure”.
3. The website, www.anthonynolan.org, stated “WE’VE FOUND A CURE FOR BLOOD CANCER - #BETHECURE … We are Anthony Nolan and we cure blood cancer. We’re happy you’re here”.
Complaint / Decision
The complainant challenged whether the claim “We’ve found a cure for blood cancer” was misleading and could be substantiated.
The ASA did not uphold the complaint.
Anthony Nolan provided evidence that haematopoietic stem cell transplantation (HSCT) had a non-relapse mortality rate for HSCT at five years post-treatment of 31% for allogenic transplants and 13% for autologous transplants as HSCT could introduce a new healthy immune system. Although it was recognised that the efficacy of such treatment needed to be improved, this treatment could still be considered curative in some cases and without such treatment, many patients would die.
The ASA disagreed with the advertiser’s assertion that ‘cure’ was interchangeable with ‘treatment’ and considered that most people would interpret that ‘cure’ meant complete non-recurrence of a disease whereas ‘treatment’ meant alleviation of symptoms. However, since it considered that consumers understood the fact that cancer treatment was not without risks and would not always result in complete remission and also that the ads contained qualifying statements such as “..for each person we’re able to help, there’s always one we can’t” and that a cure depended on the success of a bone marrow match, the ASA concluded that the ads were not misleading.
The ASA took a broad approach in this adjudication – looking carefully at how consumers would be likely to interpret the claims and, as a result, can often be seen to allow claims made by charities in circumstances where a more strict line might be taken with a purely commercial concern.
8. MyCityDeal Ltd t/a Groupon, 23 July 2014
A promotion, seen on the website www.groupon.co.uk offered a discount in relation to “Mole, Wart or Skin Tag Removal Treatments”, giving some details of the treatment, explaining that a patch test is usually required, especially for sensitive skin, and that a consultation is held to discuss the treatment and address any questions or concerns. Text in the "Fine Print" stated "... Restrictions: ... Must be 18 or older ... Customers with sensitive skin may wish to consider their suitability before purchase".
The complainant challenged whether the ad was irresponsible as they understood that removed moles were not tested to see if they were cancerous.
The ASA acknowledged that laser mole removal in the UK is an unregulated activity and as such can be carried out by any individual. They also accepted Groupon’s statement that in this instance the procedure would be carried out by an individual with medical training who would conduct a preliminary review of potential clients to check for cancerous moles. However, the ASA also noted that this individual was not registered with the General Medical Council and could not practice as a GP in the UK, leading the ASA to consider that they were not best placed to make such assessments.
The ASA also felt that, although Groupon argued most of their clients would usually consult a GP before coming for treatment, there was no express obligation on them to do so. The ASA also noted that the ad did not include any information about the potential risks related to the procedure. Due to this lack of information the ASA considered a number of clients may be unaware of the link between moles and certain forms of cancer and would undertake the treatment without first consulting a registered GP. Accordingly therefore, the ASA found the ad to be irresponsible and upheld the complaint.
Groupon, after a difficult start with a considerable of “upheld” complaints and a reference to the OFT, have had a much better recent record. However, this is the second month running with an “upheld” complaint, which shows how group buying websites need to be very careful with the products and services they are advertising.
9. Tesco Stores Limited and Nutricia, 30 July 2014
A direct mailing from Tesco’s included a section headed “"Aptamil with Pronutra+ our most advanced formula yet". Text under the heading the stated "With our continuous research in infant and toddler nutrition, our passionate team of over 250 paediatricians, nutritionists and scientists, continue to take inspiration from the benefits of nature, to develop our unique formulas, tailored to support your baby's nutritional needs at every stage of development". A graphic, which gave information about ingredients, stated "GOS/FOS (9:1) Patented blend of GOS/FOS (9:1), special carbohydrates encouraging your toddler's friendly bacteria to thrive", "LCPS [sic] (AA/DHA) Now with LCPs (Omega 3 and 6) to support visual development", and "... Iron Enriched with Iron to support brain development".
The complainant challenged the following two claims as they were health claims which must be registered on the EU Register of Nutrition and Health Claims Made on Foods (the “EU Register”):
1. “Patented blend of GOS/FOS (9:1), special carbohydrates encouraging your toddler’s friendly bacteria to thrive”; and
2. “Now with LCPs (Omega 3 and 6) to support visual development”.
The ASA upheld both complaints.
1. The ASA noted that a health claim was any claim that stated, implied or suggested that a relationship existed between a food category and health. The ASA felt that the claim in question did indeed imply that taking GOS and FOS in the manner prescribed would help improve the digestive health of the toddlers to whom it was administered. The ASA therefore considered this to be a health claim which must be registered on the EU Register before it could be included in marketing materials. The ASA noted that the European Food Safety Authority (EFSA), which recommends whether or not health claims should be registered, had concluded that there was not sufficient evidence to support the any health claims that had been submitted to it in relation the beneficial effect of GOS and FOS on digestive health and thus not registered them. The ASA therefore found that the claim in question was in breach of the Code.
2. Although the claim “Now with LCPs (omega 3 and 6) to support visual development” was not on the EU Register, Nutricia and Tescos sought to rely on the fact that the similar claim “Docosahexaeonic acid (DHA) intake contributes to the normal visual development of infants up to 12 months of age” had been authorised by EFSA. The ASA acknowledged that marketers were allowed some flexibility in rewording health claims as it was done to aid customer understanding and the claim retained the same overall meaning.
In considering whether this was the case in the for this claim, the ASA understood that DHA was an “omega 3” fatty acid and accepted that Omega 3 was a term widely known by customers which would therefore aid their understanding of the mailing. The ASA also considered that, although Nutricia had removed the reference to age in their claim, the fact that the product was listed as being for children aged 6-12 months, the age reference was still implied. However, the ASA felt that removing the word ‘normal’ had changed the meaning of the authorised health claim as it was not clear that the benefit would only relate to the normal functioning of a body, which was the basis on which the original claim had been authorised by the EFSA. The ASA also considered that the claim used by Nutricia implied that omega 6 supported visual development, however there were no authorised health claims on the EU register to support this. On both of these counts, the ASA therefore considered that the claim “Now with LCPs (Omega 3 and 6) to support visual development breached the code.
This adjudication is another example of how carefully any health related claim needs to be crafted in the light of the provisions in the EU Regulation on nutrition and health claims.
10. De Vere Group Ltd, 2 July 2014
An ad appeared on De Vere Hotels’ website www.devere-hotels.co.uk which included the following text: “WINE & DINE FROM £99* … STAY FOR 1 NIGHT WITH DINNER, BED & BREAKFAST AND BOTTLE OF WINE IN YOUR ROOM. QUOTE PROMO CODE CB1”. Further text listed the room rates for each hotel: “HOTELS … 1 NIGHT DINNER, B&B + BOTTLE OF WINE FROM (per room per night) … Oulton Hall Leeds £99.00 … Slaley Hall Newcastle £99.00”. Text at the bottom of the page stated “*The offer is subject to availability and change. Offer stays available between 13th February and 31st May 2014 and excludes The Grand … The Rates are subject to availability and peak night supplements may apply. The offer is subject to a limited allocation of bedrooms and may not be available everyday”.
Complaint / Decision
The complainant challenged the availability of rooms in particular hotels at the advertised rate of £99 per room per night, as they could not find any rooms available during the offer period at this rate.
The ASA upheld the complaint and ruled that the ad must not appear in its current form again. De Vere produced data showing that 3,671 out of 11,063 rooms (approximately 33%) were available at the £99 rate during the offer period at Oulton Hall, one of the hotels that were the subject of the complaint, and that 2,434 out of 8,599 rooms were available at the £99 rate at Slaley Hall, the other hotel that was the subject of the complaint.
The main reason given for the ASA upholding the complaint was that although the offer period ran from 13 February until 31 May 2014, there were no rooms available at the advertised from price of £99 after 31 March 2014. Although De Vere had shown that a fair proportion of the total rooms were available at the advertised “from” price over the offer period as a whole, the number of rooms at the advertised “from” price was not reasonably spread across the offer period as a consumer would reasonably expect.
This adjudication illustrates that wording relating to offers must be carefully worded and should not exaggerate availability.
11. British Airways plc, 30 July 2014
After searching for a return trip from London to Sri Lanka on the website www.britishairways.com, customers were presented with flight options under the headings “Outbound direct flights” and “Outbound connecting flight options”.
Two complainants challenged whether the claim “Outbound direct flights” was misleading as it became apparent after they had booked under this option that the flight they had chosen included an en route stop. One of the complainants also understood that they would have to disembark from their aircraft at the aforementioned stop in their journey.
The ASA upheld the complaint. The ASA acknowledged British Airways’ (BA) assertion that it was common in airline industry parlance to use the word “direct” in reference to flights which may or may not include a mid-journey stop (as reflected in a glossary of terms produced by the International Air Transport Association). However, the ASA felt that the existence, frequency and duration of en-route stops would have a large impact on any potential purchaser. The ASA therefore considered that where flights claimed to be ‘direct’ but included intermediate stops, the claim should be supported by prominent and detailed information regarding such stops.
Whilst the ASA accepted that BA had displayed information about flight times and duration on their website, they considered that the actual duration of the flight was not immediately obvious to customers as departure and arrival times were often listed in local time zones. The ASA also felt that, in any event, knowledge of a flight’s duration would not in itself give customers sufficient information relating to en route stops and that, although customers were presented with a text-box stating “Number of Stops:1” when they clicked on a flight number, this was not sufficiently prominent in respect of the more general claim “Outbound direct flights”. Furthermore, the ASA also considered that BA should have provided more detailed information about the stops, such as the duration of them and whether travellers would be required to disembark.
In consideration of these points the ASA found that the claim “Outbound direct flights” on BA’s website was misleading.
12. Jaguar Land Rover Limited, 16 July 2014
A video ad, on Jaguar Land Rover Ltd’s YouTube channel, entitled “The Art of Villainy” was presented as part of Jaguar’s “GoodToBeBad” ad campaign. The ad featured actor Tom Hiddleston playing a suave villain and his character talked about the factors that made a good villain. He was also featured driving a Jaguar F-Type in an underground car park and on a public road.
Complaint / Decision
The complainant challenged whether the ad was socially irresponsible as they believed that it featured and encouraged unsafe driving.
The ASA upheld the complaint and found the ad to be in breach of the CAP Code. Although it considered that the primary focus of the ad was to portray the sophistication and appearance of the car and illustrate how this matched the sophistication and appearance of the character played by Tom Hiddleston, the ASA did consider that certain parts of the ad featured direct and implied references to speed.
In particular when the car was shown driving up the ramp to exit the underground car park it appeared to be being driven at speed within a confined environment. The noise of acceleration also suggested this. When being driven on a public road at night, the car also appeared to be driving at speed. This was reinforced when the words “Now brace yourselves” were spoken by the character when the car exited a tunnel and sped away from other cars. Although a message appeared on screen saying “Professional driver. Closed course. Always obey speed limits”, the ASA did not consider this to be sufficient to negate the overall impression that the ad encouraged irresponsible driving.
This adjudication is an interesting contrast to last month’s adjudication, where the ASA considered the speed references fell on the right side of the line, on the basis that the images there did not encourage speeding and dangerous driving as the car was driven within the speed limit throughout the ads and there was no suggestion of aggression or recklessness in the ads. The issue was the ASA’s view as to the impression to consumers but shows a particularly fine line being drawn.
13. Chandlers Garages (Brighton) BMW, 16 July 2014
A radio ad for a car dealership selling the BMW 2 Series Coupe featured a conversation between a male and a female over upbeat background music, describing the car, for example, when asked what the car looked like, replying: “It looked like, I don’t know, it looked like a panther all curled up and ready to spring”, to which the male said “Frightening, I guess.” The conversation ended with the male asking “How did it make you feel?”, and the female replying: “I wanted to drive it, I mean really drive it.” Another male voice-over then stated “Anna’s seen the brand new BMW 2 Series Coupe. I’m Toby from Chandlers BMW. The BMW 2 Series Coupe is yours on BMW finance for just £299 per month right now at your local Chandlers BMW. Representative APR 5.9%. Test drive it today at Chandlers BMW.” The female voice-over then stated “You have got to get one of these.”
The complainant challenged whether the ad, which featured a presenter from the radio station on which the ad was broadcast (the female voice-over), was clearly distinguishable from editorial content.
The ASA did not uphold the complaint. The ASA noted the general concern of the listener that featuring a regular presenter of the radio station in question, could potentially cause listeners to feel that the station was endorsing the product or that the presenter was discussing a car in the course of her regular programme. However, following analysis of the transmission report that was provided by the radio station, the ASA noted that the ad had not been played during the presenter’s programme. Also, although the ASA accepted that some listeners may recognise the presenter’s voice, it was only during the second male voice-over near the end of the ad that it was revealed that the woman voice-over was the presenter in question. The second male voice-over then immediately went on to identify himself as the advertiser which the ASA felt would have helped listeners distinguish it from editorial content.
Furthermore, whilst the ASA accepted some listeners may associate the background music in the ad with that often played on radio programmes, they also considered that it was clear from the tone and style of the voice-overs that the exchange was both scripted and pre-recorded.
Finally, following the submission of relevant evidence by the radio station, the ASA considered that the ad was often played amongst other ads and that the start and finish of the commercial breaks were clearly signposted with station imaging and sponsor credits.
In light of the above the ASA considered that the ad was clearly distinguishable from editorial content and thus did not uphold the complaint.
The need to distinguish clearly between advertisements and editorial is always very important, and is an area of focus for the ASA in connection with the growth in “native advertising”. However, this is an example of where there was a sufficiently clear distinction between advertising and editorial.
14. 24.7 Tradesmen (Glasgow) Ltd, 16 July 2014
A competition was administered through social media in which entrants could win an iPad. The winner’s details were released on Facebook on 27 January 2014, in a post which stated “CONGRATULATIONS TO [NAME]!!!!!!! You have been selected at random and have won our amazing competition!!! Thank you to everyone who participated!!!!” Beneath this statement was a graphic of an iPad and the text “Want to win an Ipad? Of course you do”, and underneath further text, which appeared to be a reiteration of the original competition announcement, stated “COMPETITION TIME!!! How would you like to win a FREE iPad for just after Christmas?”
Complaint / Decision
The complainant, who had won the competition, challenged whether the promotion had been administered fairly as they had received a used iPad rather than the new one that they expected to receive.
The ASA upheld the complaint that the promotion had not been administered fairly on the grounds that it would have been reasonable for consumers to assume that they would receive a new iPad rather than a used one, since the promotion referred to “an iPad” without further qualification. Further, even if consumers had anticipated that the prize could be second-hand, they would have a reasonable expectation that such prize would be in good condition. The iPad that the complainant received showed clear signs of having been used, including having a damaged case and ingrained food residues. Moreover, it had been locked with a PIN which was not provided to the prize winner.
The decision by the ASA in this case is unsurprising, bearing in mind that there was no information in the promotion to suggest that the prize awarded would be second-hand. It illustrates the importance of ensuring that competition prizes are awarded as described.
15. Tesco Stores Limited, 30 July 2014
A promotion on the Tesco website (www.tesco.com), seen on 23 October 2013, stated “Hobgoblin 4x440 ml Can…SAVE 49p Was £4.99 Now £4.50 valid from 23/10/2013 until 12/11/2013”.
A website user who viewed this promotion understood that the product had been available for only £4 for three months until 7 October 2013, and challenged whether the promotion was misleading because:
1. they believed that the product had not been available at the higher price for a reasonable period of time; and
2. the product was still being sold at the lower price after the promotion had closed.
The ASA upheld both of the complaints.
1. The ASA felt that consumers would have assumed the claim “Was £4.99 Now £4.50” meant that the usual selling price of the product was £4.99 and therefore that, by taking advantage of the promotion, they would be making a saving of 49p. Whilst the ASA acknowledged Tesco’s argument that the product had been priced at £4.99 for a total of 21 days before the promotion (in fact, the BIS Pricing Practices Guide suggests a period of 28 days or more), they also noted that it had been priced at £4.00 for at least 2 of the three months leading up to the promotion. The ASA therefore considered that, as the product had been available at £4.00 for more than twice as long as it had at £4.99, the ad was misleading in claiming that £4.99 was the normal selling price.
2. The ASA considered that consumers would assume that they would have to purchase the product before the close of the promotion (12th November 2013) to take advantage of the price being reduced to £4.50. However, the ASA noted the price remained at £4.50 until 3rd December 2013. Tesco contended that this product category was subject to regular price fluctuations and that the price remaining at this lower level reflected an overall price change rather than a continuation of the promotion. Whilst the ASA acknowledged Tesco’s argument, they considered that the ad containing an end-date for the promotion implied that the price would revert to £4.99 after that date. As that was not the case, the ASA considered the ad was likely to mislead in that respect.
Pricing is always a complex area, and one where the ASA and Trading Standards will take a strict view. Indeed, only in August 2013 Tesco were successfully prosecuted and fined £300,000 in relation a misleading price comparison on their strawberries.
16. Hutchison 3G UK Ltd t/a Three, 9 July 2014
A TV ad for the mobile network provider, Three, stated, “At Three, we’ve made 0800 numbers free. Here’s a new one for you to call.” An image showed a business card with the name “Singing Dictionary” and an 0800 number. A voice-over stated “All 0800 calls free on new Three plans. Make the most of them”.
Complaint / Decision
1. The complainants challenged whether the claim “At Three we’ve made 0800 numbers free”, which they understood applied to new customers or new contracts only, was misleading, because they believed it was not adequately qualified.
2. One of the complainants, a customer of Three, who was told an additional £5 per month would be necessary to call 0800 numbers free, challenged whether the free claim was misleading because they understood the cost of the service had been increased to cover the 0800 calls.
The ASA upheld both complaints.
1. Although Three said that the ad was intended to be viewed in its entirety and not as distinct elements, the ASA concluded that the ad was misleading as it contained three separate messages: an opening spoken statement that 0800 numbers were free; a voice-over at the end stating that calls were free on 24-month plans; and a separate piece of screen text stating that the free calls applied to “new Three plans”.
In actual fact, the free calls only applied to new, 24 month contracts. Since the two qualifying conditions necessary in order for the 0800 calls to be free did not appear at the same time as the opening statement, the ASA considered the ad to be misleading and in breach of the BCAP Code.
2. Since the ASA concluded that consumers would have understood from the ad that no additional charges would be incurred in order to be able to make free 0800 calls, the fact that a £5 additional charge applied to an existing customer in order to make the “free” calls meant that the ad breached provisions of the BCAP Code relating to “Free” claims.
17. TalkTalk Telecom Ltd t/a TalkTalk, 9 July 2014
A mailing, the website www.talktalk.co.uk and a press ad, promoted a broadband package.
All three referred to “Britain’s lowest priced…”. The mailing and website referred to: “Britain’s lowest priced totally unlimited broadband…”. The press ad was headed “Britain’s lowest priced packages from TalkTalk” in promoting their “Totally unlimited broadband”. All ads included further detail, including, comparisons against competitors’ prices.
Complaint / Decision
One complainant, who understood that a cheaper deal was available with a different provider, challenged whether the claim “Britain’s lowest priced totally unlimited broadband” in the mailing and on TalkTalk’s website was misleading and could be substantiated. British Telecom, the other complainant, challenged whether the claim “Britain’s lowest priced packages from TalkTalk” in relation to TalkTalk’s “Totally unlimited broadband” package, was misleading and could be substantiated, for the same reason.
The ASA upheld all three complaints.
TalkTalk stated that their claim to be the lowest price provider of totally unlimited broadband was based upon a comparison of standard online pricing on a like for like basis against competitor broadband packages with unlimited use. It did not take into account promotional packages offered by competitors as these changed so frequently that any ad containing such comparisons would soon be out of date and thus mislead consumers. The information stating the basis of TalkTalk’s comparison was given in the first line of the small print of the ads.
Since price fluctuations and promotions were common in the telecommunications business, the ASA considered that the fact that TalkTalk’s claim related to standard broadband prices was important information which needed to be prominently displayed in the ad. Although TalkTalk had stated the basis of their claim to be the cheapest provider of unlimited broadband, the ASA held that the small print at the bottom of the mailing was not sufficiently prominent and that in the absence of further explanatory text, most consumers would believe that TalkTalk offered the cheapest unlimited broadband package in Britain, in comparison to both standard and promotional prices. As a result, the claim was held to be misleading.
Moreover, in the case of the website, the problem was further exacerbated by the fact that the explanation of the basis of the comparison only appeared when the consumer clicked on the “See how we compare” hyperlink and then only in small print at the bottom of the pop-up. The complaints in relation to the website being misleading were therefore also upheld.
This decision serves as a useful reminder of the importance of prominently displaying the basis of any price comparisons if claims are made in promotional material that a particular product is the cheapest; displaying such information as part of the small print may not be sufficient.
18. Electronic Arts Ltd t/a EA Games, 2 July 2014
A direct e-mail for the mobile app game Dungeon Keeper stated “GET DUNGEON KEEPER ON MOBILE FOR FREE! … DIG. DEVISE. DOMINATE. Build the most badass dungeon ever! Raise an army of diabolical minions and lay twisted traps to destroy any opponents foolish enough to set foot in your lair. MASTER THE HAND OF EVIL Cast powerful spells, pillage and plunder other players’ dungeons, and slap your imps around to make them work harder. A world of wicked fun is right at your fingertips. What are you waiting for, Keeper? Get it for FREE!” A footnote stated “WIRELESS FEES MAY APPLY”. The ad also featured a screenshot of the game which appeared to show a well-developed dungeon, and was accompanied by artwork depicting characters from the game.
Complaint / Decision
The complainant challenged whether the ad was misleading because it omitted information that gameplay was severely limited unless the user made in-app purchases.
The ASA upheld the complaint.
The game in question utilised two types of currency – ‘grind’ currencies of ‘Stone’ or ‘Gold’, which accrued for free over time and could be obtained in other ways within the game, and a premium currency of ‘Gems’, which could be purchased for real money or earned within the game for achieving certain tasks. Progression through the game was dependent on the accrual of the various currencies, including Gems, so this could be accelerated by purchasing Gems. Spending Gem currency also enabled the player to skip various countdown timers in order to progress more quickly through the game.
Although the ASA acknowledged that the Gem currency, through which the timers could be skipped and rapid progression through the game achieved, could be obtained for free through normal gameplay, the rate at which the currency could be accrued through normal gameplay was slow in comparison to the amount required in order to progress through the game at a reasonable rate. It was therefore likely that players would consider it necessary to purchase additional Gems in order to achieve the gameplay experience that they had anticipated when downloading the app.
The ad should therefore have made it clear to the user what could have been expected from the free elements of the game and that in-app purchases would have a significant impact on the overall gameplay experience. Because the game could restrict gameplay in a way that consumers would not expect and the ad made no reference to this nor did it include any reference to in-app purchases, the ASA concluded that the ad was misleading and that it should not appear again in its current form.
19. Kimberley-Clark Ltd, 16 July 2014
A TV ad, an e-mail, a brand page on an online supermarket, the product’s web page, a post on Facebook and an in-store sales promotion for Andrex toilet paper had a number of identified features, chiefly based on the claim "Made stronger to last even longer", including “Now made stronger to last even longer”, "New Andrex made stronger to last even longer", and “New Andrex is actually designed to be stronger to last even longer", with the email, web page and Facebook post referring to “a new Andrex 9 roll pack” as the basis for certain of the claims being made. The claims also included wording "New Andrex is up to 38% longer than other regular branded rolls ...”.
Complaint / Decision
A complaint was made by SCA Hygiene Products UK Ltd, which manufactures Velvet toilet paper, raising 14 separate grounds of complaint, mainly challenging whether the claim "stronger to last longer" in all the ads was misleading and could be substantiated. SCA believed that making the product stronger would not result in it becoming physically longer or lasting longer because consumers were using fewer sheets, particularly since the product had decreased in thickness. SCA also claimed the references to “longer” suggested that the product was physically longer. Moreover, the comparisons were also challenged, including on the basis that certain of the statistics included in the email, web page and Facebook post referred to a brand of toilet paper with only a six per cent market share, rather than a similar competitor, and so exaggerated the difference. They were also based on buying a nine-roll pack every week for a year, which SCA understood was not a realistic reflection of buying habits and therefore artificially multiplied differences between brands.
The ASA did not uphold the complaint in respect of any of the 14 grounds.
The ASA considered that most consumers would interpret the words “last longer” as being a comparison with the previous Andrex product. Kimberley Clark had emphasised in the ads the improved strength and had substantiated the improved strength. The ASA therefore accepted that fewer sheets were likely to be used by customers, and concluded that the claims to lasting “longer” in the ads were not misleading.
The ASA considered it unlikely that the word “longer” would be read in isolation but concluded that consumers would understand it to refer to how long a roll would last, rather than the physical length of the product, and was therefore unlikely to mislead consumers.
The ASA considered carefully the nature of the comparisons made by Kimberley Clark with “regular branded rolls” and whether Andrex would be expected to last longer than them. It considered that consumers’ expectations of “regular” would exclude products such as luxury, quilted, recycled fibre and economy rolls. The ASA also considered that “branded” would exclude own-brand products and that this was supported by the reference to “available in major supermarkets”, which included those supermarkets that a consumer would expect. Taking these factors into account, as well as the fact that New Andrex was 38% longer than two of six comparable products and also longer than the other four comparable products, the ASA considered that the claim “longer” was sufficiently qualified to make the basis of the comparison clear and that the results of the comparison could therefore be substantiated.
Although one specific comparison related to a particular product, Cushelle Cushiony Softness, which only had a 6% market share, the ASA did not consider the claims made exaggerated the difference between Andrex and all the comparators, including Cushelle Cushiony Softness. Even though the results highlighted in “up to” claims related to a comparator with only 6% market share, since the comparator was the third largest selling product in the market and the terms of the comparison had been made clear, the comparison was not considered misleading.
Although the ASA acknowledged that an average family might not buy a nine-roll pack of toilet paper each week for a year, since the ads were clear about the basis for the comparisons, they were held to be unlikely to mislead the consumer.
There is a history of serious rivalry between Andrex and Velvet in advertising, but this must be seen as a significant victory for Andrex. Andrex was clearly able to learn from previous setbacks and was able to satisfy the ASA that it had sufficient substantiation for the claims being made. Of particular interest are the findings on the comparisons with other products, including the reliance on the Cushelle Cushiony Softness brand, notwithstanding its low market share. This was considered acceptable since the basis of the comparison was made clear and, importantly, that Andrex had also shown that their product was significantly longer than the others.
20. Love Sofas Limited, 23 July 2014
The website for Love Sofas Limited (www.lovesofas.co.uk) stated that it was “The UK’s largest sofa website…”.
The complainant challenged whether the claim “The UK’s largest sofa website” was misleading and could be substantiated.
Love Sofas provided the ASA with a list of every individual model of sofa that could be purchased on their website and compared this with similar lists they had compiled in relation to their three main online competitors. This comparison illustrated that Love Sofas offered customers a choice of 345 different sofas whereas their nearest competitor only had 251.
The ASA considered that the claim made on Love Sofas website was in relation to the size of the range of sofas they offered to customers and, given the evidence provided presented by Love Sofas, the concluded that the claim was substantiated and was unlikely to mislead.
The claim to be the “largest” sofa website is effectively a “No. 1” claim, which needs to be carefully worded and supported by substantiation. Here Love Sofas was able to satisfy the ASA that it had the required substantiation, although it appears only to have supplied lists in relation to three competitors.