This summary provides a selection of the most interesting ASA adjudications in January and highlights the key issues considered in those adjudications. Of interest this month are a couple of further adjudications on claims that can be made in the light of the EU Nutrition and Health Claims Regulation. There are also two adjudications of interest on pricing issues and two adjudications showing the difficulties that can be experienced when running promotions. There are also further adjudications relating to the ever competitive telecoms and broadband sector, including one relating to TV on demand.
It is also worth noting that, as of 1 April 2014, Trading Standards will take over from the Office of Fair Trading as the ASA’s legal backstop with the London Borough of Camden branch taking the lead role in handling referrals for England and Wales. For Scotland, it will be the Convention of Scottish Local Authorities (COSLA) taking over the legal backstop role and in Northern Ireland it will be the Department of Enterprise, Trade and Investment Northern Ireland (DETINI).
1. PepsiCo International Ltd t/a Naked Juice, 8 January 2014 (the ASA held that claims as to the benefits of antioxidants in a juice drinks advert were specific health claims that were not authorised on the EU Register of Nutrition and Health Claims for Foods)
2. GlaxoSmithKline UK Ltd, 8 January 2014 (an ad claiming that a specific drink “hydrates and fuels you better than water” was held not to be an authorised health claim under the EU Register of Nutrition and Health Claims for Foods)
3. HB Health of Knightsbridge / Dermaskin Clinics, 15 January 2014 (the ASA held that the advertising of Botox on a website breached the CAP Code as Botox is a prescription-only medicine)
4. PZ Cussons (UK) Ltd, 8 January 2014 (information about the amount of ingredients contained in shower gels was held not to be misleading as PZ Cussons were able to provide detailed information as to how they calculated those amounts)
5. L’Oréal (UK) Ltd t/a L’Oréal Paris Men Expert, 8 January 2014 (a press ad for a deodorant was held to be misleading as the wording insinuated that the product was designed to provide absolute protection against the types of marks identified in the ad)
6. Headwater Holidays Ltd, 8 January 2014 (a Facebook competition was held not to have been fairly administered as a contestant was disqualified for manipulating voting without any evidence)
7. YouView TV Ltd, 8 January 2014 (an ad stating “With free TV and movies” was likely to mislead consumers into believing that free movies were available on the service offered. The ASA also held that the cost of the set-top box required to use the service should be included in the advertising)
8. CN Creative Ltd t/a Vype, 8 January 2014 (a national press ad for e-cigarettes was held not to be irresponsible as it was clearly targeted to current smokers and not non-smokers or former smokers)
9. Nissan Motor (GB) Ltd, 8 January 2014 (a soundtrack for a TV ad was held not to encourage anti-religious sentiment or include swearing. It was also held not to be unsuitable for children to see)
10. Furniture Village Ltd, 22 January 2014 (an ad showing a family on and around a very large sofa was held not to be exaggerated by digital alteration and therefore not misleading)
11. Superdrug Stores plc, 8 January 2014 (a promotion was held not to be properly administered as not all the winners were disclosed and only the first name and location of the winners were provided)
12. TM Lewin & Sons Ltd, 8 January 2014 (sales promotions offering men’s suits and shirts at a reduced price were held to be misleading as they had been available at the discounted price for much longer than the original price)
13. Virgin Media Ltd, 22 January 2014 (the ASA held that a booklet promoting half price offers was misleading because it did not make clear on the front of the booklet that the offers did not apply to the line rental charge)
14. Virgin Media Ltd, 8 January 2014 (an ad using the term “neighbourhood” was considered to be misleading and unsubstantiated as Virgin used data based on a larger coverage area rather than a recipient’s immediate area)
15. Hutchison 3G UK Ltd t/a 3, 22 January 2014 (an ad promoting Three’s Ultrafast network as 3.9G was held to be misleading as there was no measurable evidence to suggest that the network’s technology and speed were very close to that of 4G. The ASA also held that Three’s claim that its Ultrafast network was “built for more” was misleading and unsubstantiated)
16. TalkTalk Telecom Ltd t/a AOL Broadband, 8 January 2014 (a table comparing broadband, calls and line rental packages between AOL Broadband, TalkTalk and BT was held to be misleading as it omitted several key features of BT’s package)
1. PepsiCo International Ltd t/a Naked Juice, 8 January 2014
The website www.nakedjuice.co.uk which advertised juice smoothies included text under the sub-heading “ANTIOXIDANT FAMILY” stating “Juice Smoothies loaded with nature’s elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)”. Moreover, the website featured the product names “Green Machine” and “Mango Machine”, under the heading “ANTIOXIDANT” in a sidebar at the left-hand side of the page.
Complaint / Decision
The complainant challenged whether the following claims were authorised on the EU Register of Nutrition and Health Claims for Foods (the “EU Register”):
- “ANTIOXIDANT”; and
- “ANTIOXIDANT FAMILY Juice Smoothies loaded with nature’s elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)”.
The ASA upheld both complaints. According to EU Regulation 1924/2006 (the “Regulation”), only health claims listed as authorised on the EU Register were permitted in marketing communications. This is reflected in CAP Code rule 15; rule 15.2 allows references to general, non-specific health benefits to be made but only if they are accompanied by a specific authorised health claim.
Naked Juice questioned whether guidance documents from the EC Commission and the Department of Health made clear whether the term “antioxidant” would be considered a specific health claim or a general, non-specific health claim. However, the ASA considered that it was clearly stated that a claim that a food contained antioxidants was an example of a specific health claim which must be authorised. The EC Commission’s guidance stated that a claim was a specific health claim “if in the naming of the substance or category of substances, there is a description or indication of a functionality or an implied effect on health” and listed “contains antioxidants” as an example.
Naked Juice also sought to rely on the fact that specific guidance had not been issued on whether the term antioxidant was a specific health claim or a general non-specific health claim to justify its view that this was a general non-specific health claim. The ASA noted however that, even where there was no specific guidance, it did not automatically follow that the claim must be a general, non-specific health claim; each claim must be considered on its own merits.
Furthermore, the ASA held that the terms “antioxidant” and “antioxidant family” were specific health claims because they referred to the function of a substance on the body. They also concluded that the phrase “Juice Smoothies loaded with nature’s elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)” was a specific health claim for the same reason.
In relation to the two products “Green Machine” and “Mango Machine”, the ASA noted that they contained high enough quantities of Vitamin C for the products to bear authorised health claims relating to Vitamin C. Marketers are able to exercise some flexibility in rewording authorised claims as long as the reworded version is likely to have the same meaning for consumers as the authorised health claim. Although the ASA acknowledged that a European Food Safety Authority (“EFSA”) opinion on the authorised claim in relation to Vitamin C contained the term “antioxidant” several times, it noted that the Department of Health guidance warned against picking wording from an EFSA opinion because it could change the meaning of the claim. As such, the ASA concluded that using the word “antioxidant” in the ad did not convey the full meaning of the authorised health claim in relation to Vitamin C to consumers.
Moreover, the ASA considered that the second claim implied complete protection for the body against free radicals and was therefore held to be an exaggeration of the authorised health claim. Finally, the ASA concluded that neither claim included any reference to Vitamin C as the nutrient which conferred the health benefit referenced in the authorised health claim and health claims could only be made for a nutrient, substance, food or food category rather than the product itself.
This adjudication is a further example of the ASA interpreting the EU Regulation on nutrition and health claims.
2. GlaxoSmithKline UK Ltd, 8 January 2014
The complaint concerned a TV ad and a poster for Lucozade Sport. The TV ad showed two groups of men running on treadmills with superimposed text stating “LUCOZADE SPORT vs WATER”. One group was shown drinking water and the other was shown drinking Lucozade Sport. The voice-over on the ad stated, among other things, “Lucozade Sport gives you the electrolytes and carbohydrates you need, hydrating you, fuelling you better than water.” The water-drinking group were shown dropping out whilst the Lucozade Sport group continued to run. The text on-screen at the end of the ad stated “HYDRATES AND FUELS YOU BETTER THAN WATER”.
The poster featured an image of a professional rugby player and stated “HYDRATES AND FUELS YOU BETTER THAN WATER … SEE CHRIS TAKE THE PERFORMANCE CHALLENGE AT LUCOZADESPORT.COM”.
Complaint / Decision
The complainants, which included the Natural Hydration Council, challenged whether the claim “hydrates and fuels you better than water” breached the Code.
The ASA upheld the complaint. According to EU Regulation 1924/2006 (the “Regulation”), only health claims listed as authorised on the EU Register were permitted in marketing communications. GlaxoSmithKline (“GSK”) argued that Lucozade Sport was a carbohydrate-electrolyte solution and that two health claims for such solutions had been authorised under EU Regulation 432/2012 after a scientific assessment undertaken by the European Food Standards Authority (“EFSA”).
These claims stated that “carbohydrate-electrolyte solutions enhance the absorption of water during physical exercise” and “contributes to the maintenance of endurance performance during prolonged endurance exercise”. GSK therefore considered that the claim “hydrates and fuels you better than water” was consistent with these authorised claims and were therefore allowable under the Regulation.
The ASA accepted that the product met the conditions of use associated with those claims and that the regulations allowed for a degree of flexibility in the wording used as long as it was likely to have the same meaning for consumers as the original wording. The ASA considered that “hydrates… better” retained the meaning given by “enhances the absorption of water” but that the addition of the word “fuels” would mean that consumers were less likely to understand it to mean “contributes to the maintenance of…performance”.
As the two authorised claims also included a reference to “physical exercise” and “prolonged endurance exercise”, GSK aimed to demonstrate prolonged endurance exercise in its ads claiming “hydrates and fuels you better than water” by, for example, showing athletes running in the TV ad and featuring a rugby player in the poster. The TV ad also featured a voice over mentioning exercising “at the limits of your ability” and the inclusion of shots of clocks to show the exercise had lasted a long period of time. Although the ASA concluded that this was an acceptable alternative to including an explicit reference for the TV ad, for the poster, the average consumer would not necessarily infer a link between the claimed health benefits and prolonged endurance exercise.
Moreover, in relation to the product being “better than water”, such comparative health claims would only be acceptable if the comparisons themselves were authorised. The ASA held that the claim “hydrates … better than water” was in this context acceptable as the authorised claim stated “enhance the absorption of water”. However, the claim “fuels … better than water” was not, as the authorised claim “contributes to the maintenance of endurance performance during prolonged endurance exercise” made no comparison to water.
Finally, the ASA concluded that the poster ad did not make clear that it was the carbohydrate-electrolyte solution which conferred the health benefit referenced in the authorised health claim so it was unclear how Lucozade Sport provided that benefit. Health claims could only be made for a nutrient, substance, food or food category rather than the product itself.
This adjudication illustrates the complex considerations that will be relevant when making any health claim and the care which needs to be taken with any rewording of an authorised claim.
The ASA publicised the “firm line” it was taking on Botox ads, making it clear also that any advertising should not only be restricted to factual and balanced information, but also to ensure claims do not go beyond the licensed use for the product.
3. HB Health of Knightsbridge / Dermaskin Clinics, 15 January 2014
Two websites for health and beauty clinics featured treatment lists which included reference to “Botox”.
Complaints / Decisions
1. The Independent Healthcare Advisory Service (“IHAS”) challenged whether the reference to Botox on the websites breached the CAP Code by advertising a prescription-only medicine (“POM”) to the public.
2. The ASA challenged whether the references to Botox on the websites in general breached the CAP Code by advertising a prescription-only medicine to the public.
The ASA upheld the complaints. Although content which could be characterised as reference material or announcements of a factual and informative nature would not generally constitute advertising, the ASA considered that the references went beyond factual information and constituted advertising.
Removed reference to “Botox” and replacing it with “wrinkle softening cream” or “anti-wrinkle treatment” did not resolve the issue because links then redirected to content about Botox.
4. PZ Cussons (UK) Ltd, 8 January 2014
A website for a toiletries company, www.originalsource.co.uk, contained product pages for various shower gels. Text on the packaging shown on the:
- “MINT AND TEA TREE” product page stated “7,927 TINGLING REAL MINT LEAVES ARE PACKED INTO ORIGINAL SOURCE MINT AND TEA TREE”;
- “LIME” product page stated “40 REAL ZINGY LIMES ARE PACKED INTO ORIGINAL SOURCE LIME”;
- “LEMON” product page stated “10 REAL ZESTY LEMONS ARE PACKED INTO ORIGINAL SOURCE LEMON”; and
- “LAVENDER AND TEA TREE” stated “157 RELAXING LAVENDER FLOWERS ARE PACKED INTO LAVENDER AND TEA TREE”.
Complaint / Decision
The complainant challenged whether the claims in relation to the ingredients mentioned on each product page were misleading and could be substantiated.
The ASA did not uphold the complaint. PZ Cussons provided evidence which contained detailed calculations of the ingredient amounts for each of the products. This evidence was ratified by the managing director of the essential oils company who supplied the ingredients to PZ Cussons. The ASA were therefore satisfied that the evidence was sufficient to show that the ingredients in question were present in their respective shower gels in their quoted amounts.
Although this advert included some very specific claims, the advertiser was able to substantiate them. Advertisers are, of course, required to hold documentary evidence to prove any objective claims before submitting any marketing communications for publication.
5. L’Oréal (UK) Ltd t/a L’Oréal Paris Men Expert, 8 January 2014
A press ad for a deodorant featured a close-up image of a shirt and tie. Inside the collar of the shirt were two boxes with the appearance of clothing labels, the text on which stated “SHIRT PROTECT” and “WITH TECHNOLOGY TO HELP PROTECT AGAINST THE APPEARANCE OF SWEAT PATCHES WHITE MARKS YELLOW MARKS CARDBOARD EFFECT”. Text towards the bottom of the image stated “NEW SHIRT PROTECT 48HR ANTI-PERSPIRANT PROTECTS AGAINST ALL TYPES OF MARKS”. The right hand side of the ad was headed “48HR ANTI-PERSPIRANT HELPS PROTECT AGAINST ALL TYPES OF MARKS” and featured a shot of a pack of the deodorant on which there was text stating “ANTI-MARKS 100% ALL TYPES OF MARKS”.
Complaint / Decision
The complainant challenged whether the ad was misleading as they believed the claims “ANTI-MARKS 100% ALL TYPES OF MARKS” and “HELPS PROTECT AGAINST ALL TYPES OF MARKS” were contradictory.
The ASA upheld the complaint. As the ad listed four types of marks (sweat patches, white marks, yellow marks and cardboard effect), they considered that the claim would be interpreted to mean that the product helped protect against all the marks listed in the ad. They considered however that from the text “PROTECTS AGAINST ALL TYPES OF MARKS” and “ANTI-MARKS 100% ALL TYPES OF MARKS” consumers would believe that the product provided absolute protection against the four types of marks listed which was not the case. By 100%, L’Oréal meant instead that the product had been adapted to address all (as in 100%) of those four types of marks but not necessarily 100% efficacy against all types of marks caused by antiperspirants. For that reason, the ASA held that the claim was contradictory and therefore misleading.
This adjudication shows the importance of reviewing the wording of any claims being made very carefully, in particular to avoid misunderstandings or implied claims that cannot be justified.
HOLIDAYS AND TRAVEL
6. Headwater Holidays Ltd, 8 January 2014
A Facebook competition for Headwater Holidays (“HH”) stated contestants could win up to £500 of Cotswold Outdoor vouchers by posting a photo including a boot on HH’s Facebook page. The 10 photos with the most Facebook votes would be shortlisted and judged to decide the winner, runner up and third place.
Complaint / Decision
The complainant, who was disqualified, challenged whether the competition had been administered fairly.
The ASA upheld the complaint. HH argued that the complainant had tried to manipulate voting as she had collected 133 votes within 11 hours whereas other entrants had generally only received around 30 votes over a much longer period of time. HH had an express term in their promotion allowing them to disqualify entrants if they reasonably considered votes had been manipulated or incentivised.
Investigation of the complainant’s Facebook page also showed that she was a regular competition entrant and a member of some “voting” groups. They therefore believed she had participated in a voting exchange. Although the ASA noted this difference in voting patterns, it did not consider that the evidence showed that the voting has been manipulated or incentivised, so as to come within the relevant term of the promotion.
There are increasing numbers of cases where there appears to be suspicion of irregularities in voting on this type of promotion. Although HH had tried to deal with this risk in its terms and conditions, the ASA took a very strict view in its interpretation of the relevant term. This shows that great care must be taken in terms and conditions to address this sort of issue.
7. YouView TV Ltd, 8 January 2014
A regional press ad for the YouView TV service included the claim “Huge on demand library … With free TV and movies”. The ad also included the text “Available from BT, TalkTalk and all major retailers”.
Complaint / Decision
British Sky Broadcasting Ltd challenged whether the claim “With free TV and movies” was misleading as:
- they believed it implied movies were free on YouView when this was not the case; and
- it did not make clear that, to receive free TV, consumers were required to purchase a set-top box. It also did not indicate the cost of purchasing the box.
The ASA upheld both complaints. YouView sought to argue that “free TV and movies” could be understood to mean “free TV” and, separately, “movies”, not necessarily free movies. Not surprisingly, the ASA did not give this argument any credibility. For the first complaint, it considered that, in context of the text “Huge on demand library” potential customers would be likely to interpret the phrase “With free TV and movies” as suggesting both the TV content and movies could be accessed for free via YouView’s on-demand services. Although it was the case that TV content and movies on TV were available for free, the ad did not make clear that additional movies available via the YouView TV platform required payment to the relevant provider. Moreover, the ASA understood that the same on-demand content that could be accessed via YouView could also be accessed elsewhere for free whereas the ad implied that the “free TV and movies” available via YouView were additional.
In relation to the second complaint, the ASA considered that consumers would understand that a set-top box was required in order to use YouView TV as the ad showed a picture of a box. However, the ad did not include the cost of the box, meaning that consumers would be unaware of the extent of the commitment they must make in order to access YouView’s free services. Although the ASA recognised that the box would not be sold at the same price by the various retailers mentioned, it noted that a “from” price of £197.99 for a box was mentioned on YouView’s website and therefore could have (and should have) also been included in the ad.
This industry is highly competitive and there are continuous complaints made by competitors. Advertisers can therefore always expect challenges to be made. Particular care clearly needs to be made not to exaggerate the benefits of any service.
8. CN Creative Ltd t/a Vype, 8 January 2014
A national press ad for e-cigarettes included an image of a number of packages of the product alongside text that stated “A BIG DEAL FOR SMOKERS Finally there’s an e-cigarette that can deliver a truly realistic experience and a smooth, satisfying taste.” Small print at the bottom of the ad stated “Contains nicotine...”
Complaint / Decision
The complainant challenged whether the ad was irresponsible as it could encourage non-smokers and former smokers to take up smoking.
The complaint was not upheld. As the ad was headlined “A BIG DEAL FOR SMOKERS”, the ASA considered that it was clearly addressed to current smokers. The fact that the ad also made clear that it was for an e-cigarette disassociated the product from a traditional tobacco cigarette.
Furthermore, the ASA considered that the packages shown on the ad did not closely resemble the style or design of a traditional tobacco cigarette packet. The ASA concluded that the description of the e-cigarette was likely to be understood as referring to the appeal of e-cigarettes as an alternative to traditional cigarettes.
This latest e-cigarette adjudication shows an advertiser keeping its ad and claims on the right side of the line. Nevertheless, this remains an area of focus for the ASA, which has just on 27 February launched a public consultation on the marketing of e-cigarettes. The consultation closes on 28 April 2014.
9. Nissan Motor (GB) Ltd, 8 January 2014
A TV ad for the Nissan Note featured a soundtrack that appeared to include the lyrics “What’s the colour of the next car. It’s red you bastard, yeah red you bastard. Don’t believe in God, but believe in this shit…”. The ad also included scenes of a couple driving through a tunnel and being approached by ghosts, supernatural creatures and being stopped by a giant jack-in-a-box.
Complaint / Decision
The complainants challenged whether:
- the swearing in the ad was offensive and unsuitable for children to hear;
- the reference to “Don’t believe in God” was offensive to viewers who did believe in God; and
- the ad would frighten young children and would therefore be unsuitable for children to see.
None of the complaints were upheld.
1. Nissan claimed that they had used a clean radio edit of the soundtrack, “Evil Eye” by Franz Ferdinand in which the words “bastard” and “shit” were replaced by “basket” and schtick”. The ASA was satisfied that this was the case and also investigated whether the words which replaced the swear words in the original version of the song sounded enough like swearing to be likely to cause offence. They concluded that it would be unlikely that viewers and especially children would believe they had heard swearing and be offended.
2. The ASA recognised that the lyrics expressed a view which would not accord with the beliefs of some people but acknowledged that there was nothing else in the ad’s content that implied a negative view of religion or God. Also, the lyric was not a prominent part of the ad.
3. The ASA acknowledged that there were spooky elements to the ad but noted that the couple in the ad did not seem at all scared or threatened and were depicted as happy and smiling throughout the ride in the tunnel. Clearcast had instructed children’s channels to view the ad to assess its suitability beforehand and the ASA concluded that this action was sufficient.
This adjudication is a good example of the robust approach often taken by the ASA in relation to complaints about offensiveness, in particular where, as in this ad, the elements about which complaints had been made were pretty mild.
10. Furniture Village Ltd, 22 January 2014
A press ad for Furniture Village showed a family on and around a “FABLE Large corner sofa”. Two adults and a child were seated on the sofa whilst another child was shown playing on the floor with a toy.
Complaint / Decision
The complainant challenged whether the image of the sofa was misleading because they believed that the size had been exaggerated by digital alteration.
The complaint was not upheld. Although the ASA acknowledged that the sofa appeared to be very large and that the family looked small in comparison, they considered that the two adults and the child were sitting very close together and in positions which made them look small. They were also satisfied that the measurements of the sofa provided by Furniture Village demonstrated that the sofa was indeed very large. Moreover, pictures displayed on Furniture Village’s website and those provided by the photographer, which showed the family sitting in different positions on the sofa and more of the room it was placed in, demonstrated that the sofa was not out of proportion. In response to the complaint, Furniture Village provided a statement from the photographer stating that no digital alterations had taken place; the photographer also said that the composition was shot from a low angle with a super wide angle 28 mm lens. The ASA took the photographer’s assurance into account when making its decision and understood how this type of lens could have an impact on the overall perspective of the sofa.
Misrepresentations, particularly of sizes, of products can often give rise to complaints. Most often this relates to food and portion sizes. The ASA will seek appropriate evidence from the advertiser to ensure that there has been no misrepresentation. The ASA may even also undertake its own enquiries.
11. Superdrug Stores plc, 8 January 2014
The complaint involved two promotions run by Superdrug. The first, which could be viewed on the website www.superdrug.com, offered the chance to win tickets to the Buddy Holly show. The text stated, among other things, “For your chance to win a VIP trip to Buddy Holly for you and 3 friends including a backstage tour, the chance to meet the star of Buddy Holly and an overnight stay” and “Plus we’ve got 10 pairs of Buddy Holly tickets for lucky runner ups”. A description of the prizes referred to the Buddy Holly show’s venue as being “the Duchess Theatre, London”. The second promotion required consumers to purchase one or more Impulse fragrance products in-store using a Superdrug Beautycard in order to be entered automatically into a prize draw to win a VIP tour of the Hollyoaks set.
Complaint / Decision
In relation to the first promotion, one complainant challenged whether it has been properly administered because:
- the Buddy Holly show was no longer running at the Duchess Theatre and therefore would not be available as a prize;
- a list of only 10 winners was given, when 11 prizes had been specified; and
- only the first names and locations of the winners had been disclosed.
In relation to the second promotion, another complainant challenged whether it had been properly administered because:
4. only the first name and location of the prize winner was disclosed.
1. Not Upheld. The Buddy Holly show was no longer showing at the Duchess Theatre but was instead on tour around the UK. Superdrug had therefore offered the winners tickets for the same show at a theatre of their choice and the first place winner had been offered all other elements of the prize originally specified in the promotion. The ASA concluded that, as human error (in fact, on the part of the third party provider) had prevented Superdrug from awarding the prize as set out in the advertising, they should provide prizes of reasonable equivalence. In this case the ASA held that the substitute prizes were reasonably equivalent.
2. Upheld. Superdrug needed to provide documentation showing that the prizes had been awarded to all 11 potential winners. Although Superdrug provided details of only 10 winners to the complainant, one email appeared to have been sent to a name not featured on the list of winners and, moreover, although the eleventh winner was yet to confirm the date on which they wanted to see the show, Superdrug should still have provided evidence showing that the prize had been offered to them. The ASA therefore concluded that, on this basis, Superdrug failed to demonstrate that the promotion had been properly administered.
3. & 4. Upheld. The CAP Code requires promoters to publish or make available on request the name and county of major prize winners. Superdrug felt that providing full names of the winners would make them easily identifiable and could constitute a breach of the Data Protection Act 1998. However, the ASA concluded that Superdrug should have provided the full names of the winners in the interests of transparency and public accountability and that this requirement is not incompatible with their obligations under the Data Protection Act as long as Superdrug had obtained prior consent from the prize winners. They also considered that consumers would assume that it would be their full names that would be available from the terms and conditions stating that the winners’ “names” and counties would be made available upon enquiry.
The provisions relating to promotions are detailed and relatively complex. This is also an area where the ASA will generally require strict adherence to the relevant rules.
12. TM Lewin & Sons Ltd, 8 January 2014
The website www.tmlewin.co.uk included pages with sales promotions on men’s suits and shirts. The original price and reduced price for each product was stated and some of the products listed with an original and reduced price were labelled “New”.
Complaint / Decision
The complainant challenged whether the savings claims were misleading and could be substantiated because they did not believe the products had ever been available at the original prices.
The ASA upheld the complaint. TM Lewin provided a spreadsheet which showed that some of the suits and shirts advertised in the promotions had been available at a higher price for 28 days before being discounted. However, for many products, the spreadsheet did not show the dates during which the products were available at the higher price.
Although not binding on traders, the ASA took into consideration industry best practice regarding price comparisons as outlined in the BIS Pricing Practices Guide (the “Guide”). The Guide recommends that the period of time for which a product is available at the reduced price should not be so long as to render the comparison misleading. As guidance, it suggests that the availability of the product at the discounted price should not be more than for which the higher price is available.
The ASA noted that some of the products had been available at the original price for 28 days and then at the reduced price for nearly two months; it was further concerned that under TM Lewin’s pricing system, they would be available at the discounted price for up to five months which was substantially longer than 28 days. For that reason, and because TM Lewin failed to show during which dates the products were offered at the higher price, the promotions were considered to be misleading and unsubstantiated.
Pricing is an important, and complex, issue in any promotion, particularly when dealing with discounted prices, as demonstrated by the prosecution of Tesco in August 2013 for misleading discount prices of strawberries.
13. Virgin Media Ltd, 22 January 2014
A direct mailing promoting Virgin Media offers included a booklet with the front cover stating “Your little(ish) book of massive savings on TV, broadband, calls and mobile. Pick the perfect package to suit you, from the offers inside, and pay half price until January next year”. On the reverse of the booklet, there was a footnote stating “Half price discount not applicable to line rental”.
Complaint / Decision
The complainant challenged whether the ad was misleading, because it did not initially make clear that the half price offer did not apply to line rental.
The ASA upheld the complaint. It considered that most consumers reading the text on the front of the booklet would understand that the half-price saving would apply to those packages as a whole, including any compulsory line rental charges, as there was no text indicating the contrary. Although Virgin Media argued that two of the seven offers did not require a phone line and therefore the half-price offer applied to the entire product, the ASA held that consumers would understand the claim to mean that all the packages within the booklet were available for half price regardless of whether they included a line rental charge or not. Finally, the ASA concluded that excluding line rental charges from the saving was such significant information that it should have been included in the front cover of the booklet.
In this adjudication, Virgin Media tried to rely on apparent compliance with the BIS Pricing Practices Guide, which should always be taken into account by advertisers in relation to pricing issues. However, this shows the importance of clearly stating any significant limitations and qualifications.
14. Virgin Media Ltd, 8 January 2014
Virgin Media (“Virgin”) created two circulars for its broadband service. One read “Over 80% of your neighbourhood is connected” whilst the second stated “We’re in your neighbourhood and didn’t want you to miss out”.
Complaint / Decision
Two complainants challenged whether the claims were misleading and could be substantiated.
The ASA upheld the complaint in relation to both circulars. Virgin stated that the circulars were delivered based on postcodes and the serviceability of an area so they could not guarantee that addresses that were unable to obtain their services would not receive a mailing. Virgin therefore ensured that the circulars did not imply that an address was definitely able to receive their services. Virgin stated that over 80% of consumers in the area could have received their services. However, the ASA considered that the claim suggested that over 80% of the neighbourhood were already Virgin customers. The ASA also considered that use of the word “neighbourhood” inferred that a recipient’s immediate area was within a Virgin serviceability area rather than a larger coverage area. As such, because the circulars claimed that the majority of the recipient’s immediate area was connected to Virgin’s services when that was not the case, the ASA considered the circulars to be misleading.
This adjudication again makes clear that care should be taken with the wording of any claims made, particularly when they are subject to different interpretations.
15. Hutchison 3G UK Ltd t/a 3, 22 January 2014
A press ad and poster on the London Underground for Three mobile broadband displayed the following heading: “4G is nice. But our Ultrafast network is built for more”. Further text stated “Running at what we affectionately call 3.9G, our Ultrafast network is built to give you all-you-can-eat data. So you won’t run out when sharing pictures of happy cheese graters. And when we roll out 4G, we’ll nudge you up without charging you for the privilege. Which is nice too.”
The Three website included a webpage headed “Ultrafast. Want faster internetting without paying a premium?”. Further text stated “We believe you shouldn’t have to wait for 4G to get a great internet experience. That’s why we’ve already upgraded our 3G network with the latest DC-HSDPA technology to make it Ultrafast. We know, all those letters are a bit of a mouthful, so we affectionately refer to it as 3.9G.”
A page on the ‘blog’ section of the website was headed “Our Ultrafast 3.9G Network”. This included text which stated “What you might not know, however, is how close Ultrafast speeds can be to 4G speeds. So close in fact, that we’re affectionately calling our Ultrafast network 3.9G.”
Complaint / Decision
Everything Everywhere (“EE”) challenged whether:
- the claim “3.9G” was misleading because it implied that the speed of Three’s broadband service was very close to that of 4G services; and
- the claim “Our Ultrafast network is built for more” was misleading and could be substantiated.
Both complaints were upheld. The ASA considered that, although the ads did not imply that 3.9G was an official industry term, they implied that Three’s 3G DC-HSDPA network technology and speeds were very close to that of 4G and superior to those offered by 3G. Specific references to 4G and to Three’s network as “Ultrafast” supported that impression. Despite Three providing a considerable amount of information on the differences between DC-HSDPA and 4G, the ASA stated that the information did not include evidence of the actual measurable speeds offered by Three’s “Ultrafast” network and how this compared to 3G and 4G speeds and on this basis the claim was considered to be misleading.
Since the claim “Our Ultrafast network is built for more” immediately followed the statement “4G is nice”, the ASA considered that consumers would understand this to be a comparison between Three’s network and networks offering 4G. As EE was the only operator offering 4G at the time, it would be classed as an identifiable competitor. The CAP Code requires comparisons with competitors objectively to compare one or more material, relevant, verifiable and representative features of those products. Three qualified the claim that its network offered specific technological advantages over EE with the statement “our Ultrafast network is built to give you all-you-can-eat-data”. However, the ASA held that it had not seen any evidence to suggest that offering all-you-can-eat-data was the result of technological capabilities of Three’s network which EE could not offer. For those reasons, the ASA concluded that the claim was misleading and had not been substantiated.
16. TalkTalk Telecom Ltd t/a AOL Broadband, 8 January 2014
A table on www.aolbroadband.co.uk compared broadband, calls and line rental packages offered by AOL, TalkTalk and BT and claimed that AOL and TalkTalk’s packages were cheaper than BT’s.
Complaint / Decision
BT challenged whether the comparison table was misleading and could be substantiated because it omitted several key features of BT’s package namely the difference between the router supplied by BT and the one supplied by AOL Broadband, BT’s SmartTalk feature and the inclusion of BT Sport in BT’s package.
The ASA upheld the complaint. AOL Broadband considered that the difference between its router and the one supplied by BT was not likely to be understood by consumers, and it was not therefore a feature likely to influence consumers’ evaluation when making a decision, and so did not need to be stated. However, the ASA considered that BT’s router incorporated relatively recent technology which was a development on the routers used by AOL Broadband due to additional radio spectrum being available. Although they accepted that the difference in technology may not in itself be understood, they concluded that the difference could have been stated in a way that would be meaningful for most consumers, such as explaining that the use of additional spectrum meant that the wireless signal in the home was less prone to interference.
In relation to BT’s SmartTalk feature, which allowed customers to use their BT home phone calling plan from their mobile phone, AOL Broadband argued that a large number of apps provided similar services at either no or heavily discounted costs. They believed that this was a similar situation to customers of other providers who accessed apps at no charge and then made calls from their inclusive allowance on their mobile phone package.
The ASA disagreed and stated that SmartTalk functioned differently in that it was included in the customer’s home BT broadband and call package and they would therefore be using their home phone calling plan from their mobile phone. This meant that they would not be using any allowances from their mobile phone package, a feature which the ASA considered as significant and likely to influence a customer’s decision when choosing a package.
Regarding BT Sport, AOL Broadband stated that it had previously been willing to include a footnote in its advertising from 1 August onwards stating that BT’s package included access to the channel. Although the ASA welcomed this, it considered that AOL Broadband should have included this when the ad first appeared in May 2013 given the shorter period of time between May and 1 August in comparison with the length of an AOL Broadband contract (a minimum of 18 months). As the ASA regarded BT Sport as a significant feature, its inclusion in the BT package should have been stated from the outset.
These two decisions in the competitive telecoms and broadband sectors show that considerable care needs to be taken, particularly when making comparisons, to ensure that a justifiable comparison is being made. In order to comply with the CAP Code (and as stipulated in the Comparative Advertising Directive and implemented in the Business Protection from Misleading Marketing Regulations) it is necessary to compare objectively “one or more material, relevant, verifiable and representative features” of the relevant goods and services.