This summary provides a selection of the most interesting ASA adjudications in December, highlighting the key issues considered in those adjudications. This month presented three adjudications concerning the clothing retailer American Apparel (UK) Ltd, with the ASA concluding that many of the images used on the American Apparel website were unnecessarily adult in nature and unsuitable for a website that could be viewed by a child.
The ASA also considered complaints challenging the conduct of various prize promotions. In line with a recent decision of the Court of Justice of the European Union, the ASA held that a prize promotion which required consumers to call a premium rate number to claim a brooch was in breach of the CAP Code as it required the winner to incur a cost in claiming the brooch (Churchcastle Ltd t/a Spencer & Mayfair 2011). The ASA also upheld a series of complaints in relation to a Facebook promotion offering a prize of 20 crates of beer, concluding that the promotion linked alcohol to seduction, sexual activity or success and encouraged excessive drinking (Student Money Saver Ltd).
This month CAP announced a series of technical amendments to the food sections of the CAP and BCAP Codes to reflect recent European developments in relation to nutrition and health claims, specifically the coming into force of the EU Register of authorised nutrition and heath claims on 14 December 2012, following a six month transitional period. CAP has released guidance stating that there will be significant changes in the way the ASA approaches health claims made in food advertising, explicitly stating that health claims which the ASA has previously determined to be acceptable may no longer be considered so.
Finally, the Office of Fair Trading has announced that eight major UK supermarkets have signed up to a set of principles addressing concerns over special offers and promotions for food and drink. The principles cover two promotional practices: internal reference pricing (for example “Was £5, Now £3”) and pre-printed value claims on packs (for example “Bigger Pack, Better Value”). The aim of these principles is to establish a more consistent approach across the sector.
COMPUTERS AND TELECOMS
- JT (Jersey) Ltd, 5 December 2012 (The ASA decides whether claims to provide an “unlimited” mobile price plan were misleading where the consumer was charged for exceeding a Fair Usage Policy)
- TalkTalk Telecom Ltd t/a TalkTalk, 5 December 2012 (A claim to be “Britain’s best phone and broadband deal” is challenged for being misleading)
- American Apparel (UK) Ltd, 5 December 2012 (The ASA investigates complaints in relation to images of a young woman modelling a shirt on the American Apparel website)
- American Apparel (UK) Ltd, 5 December 2012 (Images on the “stockings and hosiery” section of the American Apparel website are challenged for being inappropriate for a website that could be seen by children)
- American Apparel (UK) Ltd, 12 December 2012 (An advertisement in an adult magazine is challenged for being offensive and irresponsible)
FOOD & DRINK
- Nutricia Ltd, 5 December 2012 (An advert for follow-on milk is challenged for being misleading)
- Maxxium UK Ltd, 12 December 2012 (The ASA investigates whether a blog entry promoting an alcoholic drink was likely to appeal to people under 18)
- Burns Pet Nutrition Ltd, 19 December 2012 (A pet food website containing feeding recommendations is challenged for being misleading)
- Student Money Saver Ltd, 19 December 2012 (A Facebook promotion offering a prize of 20 crates of beer is investigated by the ASA)
HEALTH & BEAUTY
- Boots UK Ltd, 5 December 2012 (The ASA considers whether two scientific studies are sufficient to substantiate claims made in relation to a dietary product advertised on a website)
- Keyline Brands Ltd t/a Bio Oil, 5 December 2012 (Efficacy claims made in a television advertisement are investigated by the ASA, following a similar complaint made in 2009)
- L’Oréal (UK) Ltd t/a L’Oréal Paris, 5 December 2012 (The ASA investigates whether an advert for a beauty product using “before” and “after” photos was representative of the effects that could be achieved by using the product)
TRAVEL & TOURISM
- Villa Gradi, 5 December 2012 (A holidaymaker challenges claims made on a holiday rentals website after staying in the villa and finding that many features were unavailable)
- Booking.com BV, 12 December 2012 (A complainant challenges whether a hotel price offered to her in a retargeted ad based on her browsing history was actually available)
- Bev Morley, 12 December 2012 (The ASA considers whether a Twitter promotion to win a Kindle was conducted fairly)
- William Hill Organisation Ltd, 12 December 2012 (Claims made on website and television adverts in relation to betting odds are challenged for being misleading)
- BangBros.com, Inc, 19 December 2012 (A banner advert on a dating website is investigated for being offensive and unsuitable)
- Churchcastle Ltd t/a Spencer & Mayfair 2011, 19 December 2012 (A word search puzzle offering a brooch to consumers who solved the puzzle is investigated for being misleading)
- The Health Lottery Ltd, 19 December 2012 (The ASA considers whether an advert for a lottery implied that participating in the lottery was a solution to financial concerns or a way of achieving financial security)
- Mazda UK Ltd, 19 December 2012 (A website is challenged for being misleading and taking unfair advantage of a competitor’s brand)
- Simon & Schuster Ltd, 5 December 2012 (The ASA considers whether an advert featuring a picture of a zombie was likely to cause undue distress and harm to children)
COMPUTERS AND TELECOMS
1. JT (Jersey) Ltd, 5 December 2012
A leaflet and website advertised a mobile call and internet price plan. Text stated, “With unlimited texts & data and as many minutes as you need, it’s got everything you want to stay in touch on the move…” Small text read, “*Unlimited plans are subject to a fair usage policy of 2,000 texts per month and 500nMB per day.”
Complaint / Decision
The complainant challenged whether the, “unlimited” claims were misleading and could be substantiated, as they were subject to a Fair Usage Policy (FUP) and consumers were charged for exceeding the FUP.
The complaint was upheld. JT said their plan clearly stated that there was a FUP of 2,000 texts per month and 500 MB of data per day, submitting data showing that the average user of their mobile plan used 246 texts a month and 17 MB of data per day. However, the complainant said she had decided to purchase the “Unlimited” contract on the basis that it would not be subject to any usage limitations. The ASA considered that “unlimited” claims for telecommunications services which had limitations imposed by the provider would be acceptable provided the services were not restricted or limited in such a way as would be contrary to the average consumer’s expectations of an “unlimited” service. As the complainant had been charged for exceeding the FUP data usage threshold, the ASA concluded that this showed that users could suffer restrictions contrary to the average consumer’s expectations of the service.
The ASA acknowledged that text in the advertisements stated that the unlimited plans were subject to the FUP, and gave details. However, the ASA considered that this qualification contradicted the main claim of being an “unlimited plan”; it was contrary to consumers’ expectations and was ambiguous. The advert was therefore misleading.
This adjudication provides useful guidance on “unlimited” claims. Interestingly, the ASA notes that claims for “unlimited” services are not misleading by default if limits are in fact imposed, provided those limits are not contrary to the average consumer’s expectation of what constitutes an “unlimited” service.
2. TalkTalk Telecom Ltd t/a TalkTalk, 5 December 2012
A press advert for TalkTalk contained the heading, “Britain’s best phone and broadband deal* Half Price† Better value than Sky, BT and Virgin”.
Complaint / Decision
Virgin Media challenged whether the claim was misleading as they felt that it implied that the price and product specifications offered made it the best package for phone and broadband, rather than being a claim purely about price. They believed their service offered a better value as their broadband speeds were greater.
The complaint was not upheld. TalkTalk stated that the advert was aimed at consumers who wanted a low cost telecoms package. “Better value” referred to the price of the package, and the prominence of the headline and the large lettering of the words “Half Price” made it clear that price was the focus of the advert. The ASA agreed that the claims would be interpreted as relating to price alone. Although features of the product were mentioned in the advert, the ASA considered that consumers would understand these to be references to other benefits and features of the products rather than the basis for the headline claims. The advert was not misleading.
This adjudication provides another example of a “best” claim. As a general rule, if no further information is provided on the basis of the claim, for example if the advert had simply read “Britain’s best phone and broadband deal”, the ASA is likely to interpret it as a subjective one, stating the advertiser’s opinion. However, if information is provided on the criterion for the claim, such as “Britain’s best phone and broadband deal … Better value than Sky, BT, and Virgin”, then the ASA is likely to interpret it as an objective claim that must be capable of substantiation. As TalkTalk were able to provide evidence substantiating this, the claim was not misleading.
3. American Apparel (UK) Ltd, 5 December 2012
A page on American Apparel’s online store contained several images of a young woman modelling a shirt in various colours. In each picture the woman’s breasts could be seen through the shirt.
Complaint / Decision
The complainant challenged whether: (1) some of the images were irresponsible, as she believed they featured a young girl; and (2) some of the images were offensive and irresponsible, as she believed the poses were overtly sexual and therefore not suitable for a website which would be viewed by children.
Both complaints were upheld. The ASA considered that the model looked under the age of 16, and as her breasts were visible through the shirt, the images could be interpreted as sexualising a model who appeared to be a child. In relation to the second complaint, the ASA determined that the model was looking at the camera in a seductive manner in a sexually provocative pose. The ASA concluded that the images were irresponsible and likely to cause widespread offence as they featured on a website which could be viewed by and was likely to appeal to children under 16.
4. American Apparel (UK) Ltd, 5 December 2012
The, “stockings and hosiery” section of the American Apparel website featured several images of women modelling the products in a variety of poses, including bending over, doing the splits, lying down and in some cases wearing tights and nothing else, with their backs to the camera.
Complaint / Decision
A complainant objected that the images were unnecessarily sexual and inappropriate for a website that could be seen by children.
The ASA upheld the decision in relation to three of the 23 images. The ASA considered that the majority of the images were artistic but not overtly sexual. This included images where one of the woman’s breasts or buttocks were exposed. The fact that the images showed a side view seemed to be an important factor in the ASA’s decision that they were not inappropriate. The ASA considered that the three objectionable images contained poses that were sexually suggestive and gratuitous in a hosiery advert, and were therefore inappropriate for a website that could be seen by children.
5. American Apparel (UK) Ltd, 12 December 2012
An advert for American Apparel featured on the back cover of Vice Magazine showed a girl sitting on an office chair wearing a jumper, knickers and knee-length socks. She had her legs up on the chair and her knickers were visible.
Complaint / Decision
Two complainants objected that the advert was offensive and irresponsible, as they believed it sexualised a child.
The ASA upheld the complaint. American Apparel submitted that the model was over 18 and wearing products meant for adult customers. However, the ASA considered that the model appeared to be young and potentially under the age of 16, and the amateur style of the photo and the pose of the model gave the picture a sexual undertone and voyeuristic quality. The advert was irresponsible as it inappropriately sexualised a model who appeared to be a chid.
American Apparel stated that the advert featured in Vice magazine which was a publication for adults. The ASA acknowledged this, but concluded that the advert was still likely to cause serious or widespread offence as it featured in a magazine that was untargeted and freely available.
These three decisions follow another recent adjudication against American Apparel concerning a website featuring young women in various partially nude poses (see American Apparel (UK) Ltd, 4 April 2012). The nature of the product being advertised is a key feature in the ASA’s decisions – although acknowledging that for some products, such as lingerie, it would be reasonable to show a woman in limited clothing, for other products the nudity is simply gratuitous, and unacceptable. The ASA draws a distinction between images containing nudity that are artistic, and those that are sexually provocative. This is clearly a fine line to draw and advertisers are advised to err on the side of caution when including such images in their marketing materials.
FOOD & DRINK
6. Nutricia Ltd, 5 December 2012
A television advert for follow-on milk showed a toddler and her parents going about everyday tasks. A voiceover stated, “One step for you, lots for her. A quick click for you, intense concentration for her. It’s no wonder toddlers need more than two times the nutrients you do…”, onscreen text stated, “relative to her size, based on RNIs”.
Complaint / Decision
A complainant challenged whether the claim “It’s no wonder toddlers need more than two times the nutrients you do” was misleading.
The complaint was not upheld. Nutricia explained that the claim had been based on a comparison of the Recommended Nutritional Intake (RNI) amounts for adult males and females and those for a female toddler aged 18 months, for a variety of nutrients. In all cases, the requirements for the toddler, per kg of bodyweight, were more than two times greater than the adults.
The ASA took note of this research and of the onscreen text stating “Relative to her size, based on RNIs”. The ASA considered that this text suitably qualified the claim, and the advert was therefore not misleading. This adjudication provides a good example of the use of additional text to qualify a primary claim. Advertisers should be reminded that, while claims can be qualified in this way, the qualification should not be so great as to contradict the primary claim.
7. Maxxium UK Ltd, 12 December 2012
A blog entry titled “RASPBERRY HEAT WAVE” read: “Colour blocking is the hot clothing trend of 2011. Everyone from Chezza to Nicole Scherzinger to Leona Lewis are getting their bright colour game on. As a very brightly coloured bunch, we're bang into it too! We've been seing [sic] loads of pink, which we LOVE - as it's totally an homage to our new Sourz Raspberry flavour ;) Pink is not just for girls either ... lads have been getting in on the trend too with raspberry skinny jeans, shirts, belts and ties. Don't believe us? Check out this lot, who were more than happy to strike a pose and show off their latest colours on Threadz”. The blog featured photos of male and female models in a variety of outfits. Each photo also showed glasses of brightly coloured drinks.
Complaint / Decision
Alcohol Concern, on behalf of the Youth Alcohol Advertising Council, challenged whether: (1) the models were under 25 years of age, as they believed some of them looked under 18; and (2) the references to celebrities and the use of a “winking smiley face” were likely to appeal to people under 18.
Both complaints were upheld. In relation to the first complaint, Maxxium submitted evidence showing that all five models were aged 25 or over at the time of the launch, although they admitted that one of the models was under 25 at the time the photos were taken. However, the ASA considered that two of the models would be seen by many consumers as under the age of 25, or even under 18. The ASA acknowledged that the models were not shown drinking, but noted that the shoot looked as though it had taken place in a bar, and that alcoholic drinks appeared in some of the images. The ASA concluded that the advert breached the Code.
In relation to the second complaint, the ASA considered that the tone and approach of the blog were youth-orientated and likely to appeal to young people. In addition, the celebrities mentioned were associated with the X Factor reality TV show, and popular with under 18s, and some of the models featured appearing to be around 18 years old. For these reasons, the ASA considered that the advert would appeal to young people and therefore, as the advert promoted an alcoholic drink, was in breach of the Code.
Interestingly, the ASA did not comment on Maxxium’s submission that the blog was hosted on a website which could only be accessed once a date of birth was entered and which prevented anyone under 18 from legally seeing any of the website content, including the blog. It appears that such measures were insufficient to prevent the ASA from concluding that the blog itself appealed to people under 18.
8. Burns Pet Nutrition Ltd, 19 December 2012
A pet food website contained feeding recommendations under the heading “Feeding Guide for Adult Dogs”, listing the recommended daily amount of food against the weight of the dog. Text underneath stated, “Feeding amounts can be adjusted to meet the needs of individual dogs. Ring our Nutrition Helpline for further information”.
Complaint / Decision
Hill’s Pet Nutrition Ltd challenged whether the feeding recommendations were misleading as they underestimated the amount of food required to feed a dog sufficiently.
The complaint was upheld. Burns believed that the amounts given in their feeding guide were correct; they were based on over 19 years of experience and the lower amounts were sufficient as Burns pet food had a higher digestibility than most other pet foods. Burns cited feedback from a veterinary nurse corroborating this. However, the ASA noted that Burns failed to explain exactly how the amounts in the feeding guide were calculated, and considered evidence from one veterinary nurse to be insufficient to support the claim that a small amount was required due to high digestibility.
As Burns had not explained how their feedings amounts had been calculated; why they differed significantly from the European Pet Food Industry Federation Nutritional Guidelines; or demonstrated that their feeding guide did not underestimate the amount required to feed dogs sufficiently, the ASA concluded that the recommendations were misleading.
This adjudication provides another example of the importance of being able to substantiate claims made in marketing materials with robust evidence.
9. Student Money Saver Ltd, 19 December 2012
A promotion on studentmoneysaver.com’s Facebook page showed a woman wearing knickers and a vest surrounded by several crates of beer. She was pouring beer from a bottle into her mouth and spilling it down her body. Text read, “We’re giving away 20 crates of beer to one of our lucky fans … Anna Watts not included! SHARE this photo to enter! (Ends midnight Sunday)”.
Complaint / Decision
A complainant challenged whether (1) the promotion linked alcohol to seduction, sexual activity or sexual success; (2) the image was likely to cause serious or widespread offence to women; (3) the promotion showed alcohol being handled irresponsibly; (4) the promotion encouraged excessive drinking; and (5) the promotion made alcohol available to under 18-year olds.
Complaints 1, 3 and 4 were upheld. Complaints 2 and 5 were not upheld.
The ASA considered that the body language of the woman in the advert was provocative and sexually suggestive, and noted the way in which she was dressed and the fact that the beer ran over her body, soaking her vest. Additional text in the advert read “Anna Watts not included!”, which the ASA considered to be a tongue-in-cheek reference to the idea that Ms Watts was available sexually. The ASA determined that the promotion linked alcohol to seduction and sexual success, and was therefore in breach of the Code.
The ASA considered that the image was likely to be viewed as tasteless by some Facebook users but was unlikely to cause serious or widespread offence. In its reasoning for this decision, the ASA states that Ms Watts was “not dressed indecently” and that the text stating she was not included was a “tongue-in-cheek reference to her not being part of the prize”.
In relation to the third complaint, the ASA considered that the bottle depicted was a large bottle (despite Student Money Saver submitting that it was a small bottle) and the way the woman was drinking the beer – pouring it into her mouth continuously – was not the usual manner of drinking the product. The bottle was part-empty, implying that the woman had already consumed a third of the bottle. The ASA considered that the casual and careless manner in which she was drinking the beer, combined with the 20 boxes of beer surrounding her in the advert, which implied that there was more alcohol to be drunk, showed alcohol being handled irresponsibly.
The ASA relied on similar reasoning in its decision to uphold complaint 4, adding that there was no suggestion that the prize of 20 crates of beer could be shared with others at a social gathering, concluding that the promotion condoned and encouraged excessive consumption of alcohol.
The promotion featured on a Facebook page which, although aimed at university students, could be accessed by any Facebook user of any age. However, the ASA considered that Student Money Saver had taken steps to ensure the winner was over 18 by emailing them and checking their Facebook profile. The ASA concluded that the promotion had not made alcohol available to under-18s.
This adjudication highlights the pitfalls that can be encountered when advertising alcoholic products. The question of whether an advert links alcohol to seduction and sexual success can be difficult to determine, particularly in light of previous ASA adjudications such as Wells & Youngs Brewing Company Ltd, 3 October 2012. In this adjudication, the ASA drew a distinction between linking alcohol with romance and flirting, for which there was no prohibition, and sexual success and seduction. It seems there is a fine line between “flirting” and “seduction”, and advertisers should interpret these terms cautiously.
In reaching its decision on complaints 1 and 2, the ASA took into account the clothes the model was wearing and the text stating “Anna Watts not included”. However, while these factors made a positive contribution to the decision that the promotion linked alcohol with seduction and sexual success, they did not have the same effect on the question of whether the promotion would cause serious and widespread offence to women. This highlights the way features of an advert can be interpreted differently depending on the section of the CAP Code to which the complaint relates – the threshold for causing significant or widespread offence, understandably a high one, was not reached in this instance.
HEALTH & BEAUTY
10. Boots UK Ltd, 5 December 2012
The product “Boots Pharmaceuticals Carb Control” was featured on the website boots.com along with the following text: “Boots Pharmaceuticals Carb Control may help reduce dietery [sic] carbohydrate absorption by up to 66% … What does Boots Pharmaceuticals Carb Control do? Boots Pharmaceuticals Carb Control contains a glycoprotein complex, which may help to reduce the amount of dietary carbohydrate that are digested and absorbed by the body.”
Complaint / Decision
A complainant challenged whether the claims in the advert were misleading and could be substantiated.
The complaints were upheld. As part of its response, Boots provided two research papers which they believed demonstrated that the product prevented the absorption of 66% of carbohydrate from food and that it was suitable for weight management.
The first study was a randomised, double-blind, crossover study which showed a 66% reduction in carbohydrate absorption when the active ingredient was added in powder form to four slices of bread. However, Carb Control must be taken in tablet form before food. When a more conventional balanced meal was eaten, the effectiveness was reduced to 41%.
The second study was a randomised, placebo-controlled, double-blind trial involving 40 volunteers, all of whom were obese. The ASA considered that these results could not be extrapolated to people who were overweight but not obese, which was the category to whom the efficacy claims in the advert were targeted.
The ASA determined that the findings of the studies were inconclusive and that the second study had focused inappropriately on obese volunteers. The claims in the advert suggested a sound basis behind them, which was not the case. Boots stated that Carb Control was a Class IIa medical device, and that manufacturers of such products were obliged to ensure they were safe and fit for their intended purpose. However, the ASA considered that obtaining such classification did not of itself demonstrate that the MHRA had seen satisfactory evidence for efficacy claims. The claims were therefore misleading.
This adjudication again highlights the importance of being able to substantiate claims with the right sort of evidence. Although Boots submitted two research papers which at first glance appeared to substantiate the claims, upon closer inspection there were issues with the selection of volunteers to participate in the studies, and the extent to which the studies replicated the way in which the product would be used by consumers. These are two important considerations that advertisers should bear in mind when collating evidence to substantiate claims.
11. Keyline Brands Ltd t/a Bio Oil, 5 December 2012
The voice-over in a television advert for Bio-Oil, a skin treatment, stated, “My friend had raved about Bio-Oil after she used it on a scar she had, so I thought I’d try it. Now I’m using it every day and I love it.” A male voice-over then stated, “Bio-Oil helps improve the appearance of scars and stretch marks; and now save a third on Bio-Oil at Boots.” Onscreen text next to an image of the product stated, “for scars and stretch marks”. Text underneath read, “Repeated applications for best results”.
Complaint / Decision
A viewer challenged whether the efficacy claims could be substantiated.
The complaint was not upheld. In its assessment, the ASA referred to another complaint in 2009 concerning similar product claims made about Bio-Oil, which was upheld (see Union-Swiss Ltd, 16 September 2009). In 2009, the claims made were considered “breakthrough claims”, as the ASA understood from expert advice that no product had ever been proven to reduce scars, and a higher standard of evidence was required.
Keyline Brands submitted new evidence to support the claims, including two further clinical studies and an expert report. In addition, Keyline Brands submitted a review of scientific literature on the treatment of scars and stretch marks, which suggested that hydration by occlusion improved the cosmetic appearance of scars and stretch marks. The expert report stated that Bio-Oil had occlusive and hydrating properties.
The ASA considered that the new evidence submitted was sufficient to substantiate the claim to “improve the appearance of scars and stretch marks” and the advert was therefore not in breach of the Code. This interesting adjudication provides an example of the difficulty advertisers can face when trying to substantiate breakthrough claims. In 2009 very similar efficacy claims made about the same product were found to be misleading as the evidence provided to support the claims did not meet the standard of evidence required. However, the evidence submitted in relation to the current complaint was deemed sufficient. Keyline’s submission of a body of scientific evidence suggesting that the appearance of scars and stretch marks can in fact be improved by hydration by occlusion seems to be a significant development, as the expert consulted in 2009 stated that he was not aware of any cosmetic product that had the ability to reduce the appearance of scars.
12. L’Oréal (UK) Ltd t/a L’Oréal Paris, 5 December 2012
A national press advert for “Youth Code” serum and day cream showed “before and after” photos of two women. Text stated, “Instant luminosity. Seeing is believing”.
Complaint / Decision
Five complainants challenged whether the advert was misleading as they believed the photos were not representative of the results that could be achieved by using the product.
The complaints were not upheld. The complainants believed that the “after” photos had been achieved using different lighting to the “before” photos or post-production techniques. However, L’Oréal submitted affidavits from the make-up artist and photographer stating that no post-production techniques were used on the “after” photos and that lighting levels had not been adjusted between the two sets of photos. The ASA considered that this evidence demonstrated that the photos did not exaggerate the results that the products could achieve, and the advert was unlikely to mislead.
TRAVEL & TOURISM
13. Villa Gradi, 5 December 2012
A holiday villa in Croatia, Villa Gradi, was advertised on a holiday rentals website. The website showed photographs of the villa and its features were listed in accompanying text.
Complaint / Decision
A complainant, who had rented the property, challenged whether the advert was misleading and could be substantiated. The complaint submitted that the villa did not have many of the facilities listed on the website, for example there was no private parking, air conditioning was not available in most rooms, the upper floor and most of the ground floor were not accessible, and many more.
The ASA upheld three out of the seven complaints. With regard to the space available in the property, the picture of the villa on the website showed accommodation on at least three levels, with nothing to suggest that the accommodation provided to guests was restricted. As Villa Gradi failed to provide conclusive evidence that the accommodation provided to guests extended to all or most of the property, the ASA concluded that the advert was misleading. In relation to the claim for “private parking”, the ASA considered that the road-side parking evidenced by Villa Gradi was insufficient, as they had not provided documentation to show that these spaces were for the exclusive use of the property. In considering the complaint regarding lack of hot water in the kitchen, the ASA determined that hot running water in a kitchen was a reasonable expectation, and the advert was misleading by omission for failing to state that it was not available. Claims relating to the availability of air conditioning, a garage and the number of bathrooms were not upheld.
14. Booking.com BV, 12 December 2012
An internet advert for Booking.com stated “Portland Heights Hotel and Leisure Centre 102£ save 235£ for 2 nights”. The advert featured an image of a resort along with the text “Last rooms” and a click through link labelled “BOOK NOW”.
Complaint / Decision
A complainant challenged whether rooms were available at £102.
The complaint was upheld. Booking.com stated that the adverts featured a “real-time” rate based on information contained in the cookie on the user’s computer, and that the vast majority of these targeted ads displayed accurate rates. However, Booking.com admitted that sometimes the data stored in the cache and the data stored in the booking system would be different as it was impossible to maintain 100% accuracy. Booking.com said that consumers would (or should) understand that fluctuations in room rate and availability may result in a price becoming unavailable.
The ASA acknowledged that consumers using the Booking.com site would have information such as specific search criteria stored in a cookie on their web browser. This information could then be used to generate adverts that were likely to be of interest to the consumer. Such adverts would then appear when that consumer visited other websites.
The ASA noted that, as the price and availability of hotel rooms fluctuated with some frequency, the data used to produce such re-targeted ads would not always be up-to-date. This means that, when a consumer clicks on the advert, they may find that the hotel in the advert is no longer available or not available at the advertised price.
The ASA considered that consumers would expect the price shown to them in the advert to be available at the time at which they saw it. This is irrespective of whether consumers understood that the advert had been targeted at them. As the complainant had not been able to obtain the offer and Booking.com had failed to demonstrate that the price was actually available at the time the complainant saw the advert, the ASA concluded that the advert was misleading.
This adjudication is particularly interesting in light of the new CAP rules on online behavioural advertising, due to come into force on 4 February 2013. Using a consumer’s web-browsing history to collect information about the kind of products in which they might be interested is a common marketing technique, and one which the ASA has decided requires regulating, in order to provide transparency and to offer users sufficient control.
15. Bev Morley, 12 December 2012
A tweet advertising a promotion to win a Kindle stated “@mojocomms Follow for a fab #kindle #comp giveaway!!!”.
Complaint / Decision
The Institute of Promotional Marketing (IPM) brought a complaint on behalf of the winner challenging whether the promotion had been conducted fairly, as the winner had not received the Kindle.
The complaint was upheld. The complainant had responded to the original tweet and followed the advertiser on Twitter, as requested. The advertiser had then tweeted to confirm that the complainant had won the competition. However, the ASA was concerned that no information was provided in the tweet about the terms and conditions of the competition or where such terms and conditions could be found. The ASA suggested the terms and conditions could have been incorporated by including a short URL.
The CAP Code has detailed provisions regarding prize promotions, including that promotions must state before or at the time of entry the date by which prize winners will receive their prizes if it will be more than 30 days after the closing date. As the advertiser had not provided a date by which the prize would be awarded, the ASA considered that the prize should have been given within 30 days. The complainant had not received the prize within that timeframe, and the ASA was subsequently told by the advertiser that the complainant would not receive the prize for up to eight months from the end of the competition. As the complainant had not received the prize within 30 days or even in the eight months since then, the ASA concluded that the promotion had not been conducted fairly.
The outcome of this adjudication is unsurprising, and advertisers should be reminded of the strict obligations surrounding the conduct of prize promotions. The ASA does however provide some useful guidance, suggesting that where space is limited, such as in a tweet, competition terms and conditions can be incorporated by providing a URL, rather than featuring on the page itself.
16. William Hill Organisation Ltd, 12 December 2012
Adverts on television and a website made claims about the betting odds available for various sporting events.
Complaint / Decision
One complainant challenged whether the claims (1) “BEST PRICES ON THE BEST HORSES” and (2) “BEST PRICES ON THE BEST TEAMS” were misleading and could be substantiated, as he believed that better prices could be obtained from other bookmakers. Another viewer challenged whether the claim (3) “Best Odds Guaranteed on all UK & Irish Horse racing” was misleading, for the same reasons.
All three complaints were upheld. In relation to the first two complaints, the ASA was concerned that no qualifying text had been included alongside the claims, and consumers would therefore interpret them to mean that William Hill offered the best prices on teams/horses that would not be bettered by their competitors. As William Hill did not provide information comparing their prices to those of their competitors, the ASA concluded that the claims had not been substantiated and were misleading.
The ASA acknowledged that the term “best odds guaranteed”, the subject of the third complaint, was a commonly used industry term which means that customers would receive whichever was better - the price when they placed their bet or the starting price. However, as the advert was shown on terrestrial television, the ASA considered that most viewers would not be familiar with the term, and would understand it to mean that the odds from William Hill would be better than any other bookmakers. The claim was therefore likely to mislead. This highlights the extra care that should be taken when using industry-specific terms on an untargeted medium, such as terrestrial television.
17. BangBros.com, Inc, 19 December 2012
A banner advert on a dating site, viewed by a guest member, showed images of naked men engaging in sexual acts. Text stated “BAITBUS.COM” and “STRAIGHT GUYS TRICKED INTO GAY SEX”.
Complaint / Decision
The complainant challenged whether the advert was offensive and unsuitable for a dating website.
The complaint was upheld. Due to the overtly sexual content of the advert the ASA considered that it should be very carefully targeted to avoid causing offence. Although the advert was only shown to registered users of the site, two types of membership were available, free “guest” accounts and payable “member” accounts. The advert in question had appeared to both types of member.
The ASA understood that guest members would in general not be exposed to explicit images such as those shown in the advert – photos and videos of this nature were only available to paying members. The ASA considered that the text “STRAIGHT GUYS TRICKED INTO GAY SEX” implied non-consensual behaviour and carried threatening and violent undertones. The ASA concluded that the images, particularly as they were not in line with the usual content available to guest users, and the text would be likely to cause serious offence and the advert had been inappropriately targeted to appear to guest members of the site.
Although the advert in question only appeared to users who had registered on the site, the ASA drew a distinction between guest members and paying members. Both types of membership required registration, presumably indicating a wish to use a site containing content of an adult nature. The advertiser submitted that, in its opinion, the content of the advert was appropriate for display on the website, given the adult content available on the rest of the site. However, the ASA disagreed. A key factor in the ASA’s decision was not the content of the site as a whole, but rather the difference between the content available to guest members, and that available to paying members. As the images did not fit with an “established context” of similar content for guest users, the ASA considered that the advert had been inappropriately targeted. Had the advert only been available to paying users, the outcome may have been different.
18. Churchcastle Ltd t/a Spencer & Mayfair 2011, 19 December 2012
A national press advert invited readers to identity the words missing from a word search puzzle and call a number with their answer. Text stated, “…To promote Spencer and Mayfair Jewellery to readers of this publication we are delighted to have sourced our most prized item to date: Genuine Lucky Four-Leaf Clover Emerald Brooches. These genuine Emerald Brooches … are guaranteed to be received by all callers who register a correct answer to the puzzle shown here, by Midnight Tonight. There is no more to it than that! … Should you solve the puzzle then call the number shown straight away. We will tell you whether you have the correct answer and are successful!”.
Small print stated “*Calls last for just 5 mins 45secs. Calls cost £1.53 a minute from a BT landline. Calls from other networks may vary ... Calls from a mobile phone or a public payphone cost considerably more. This is a skill competition open to UK residents ... Correct entries will be acknowledged on the phone line ... At the end of the call you will be asked if you wish to be transferred to another phone line to receive matching earrings. If you do choose to do so the second call will last 2 minutes and 55 seconds at a cost of £1.53 per minute”.
Complaint / Decision
A complainant challenged whether the advert (1) was misleading as it did not state the minimum total cost of calling the premium rate number; and (2) misleadingly implied that the brooch was an award, when he understood that consumers actually had to purchase the brooch.
The first complaint was not upheld. The small print stated the exact call duration and the cost per minute. Although it did not state a minimum total cost, the ASA considered that the information was clear and allowed consumers to calculate the total cost themselves.
The second complaint was upheld. Churchcastle submitted that Rule 8.21.1 of the CAP Code did not apply to the advert as they had not described the brooch as “free” or a “gift”. The brooch was an incentive or reward for consumers, and they were not “buying” the brooch, as only those callers who submitted a correct answer would receive the brooch. The cost of the call had nothing to do with the cost of the brooch and paying for the call did not entitle consumers to the brooch.
However, the ASA disagreed with this interpretation, concluding that the advert was subject to Rule 8.21.1. This rule states that adverts must not falsely claim or imply that a consumer, on doing a particular act, will win a prize or equivalent benefit, if a cost is incurred by the consumer in claiming that prize or equivalent benefit. This reflects prohibited practice 31 of the Consumer Protection from Unfair Trading Regulations 2008 (the “Unfair Trading Regulations”). The ASA considered that the brooch was an award, and therefore an equivalent benefit referred to in the rule.
The ASA considered that the advert conveyed the impression that consumers who had correctly solved the word search would win the brooch. In order to submit an answer, consumers had to call the number provided and incur a minimum cost of £8.80. The Code states that promotions where consumers must incur a cost to claim a prize or equivalent benefit are prohibited. The ASA considered that the cost falsified the impression created by the advert that consumers would win a brooch, and concluded that the advert breached the Code.
This adjudication is in line with a recent decision of the Court of Justice of the European Union (CJEU) on prohibited practice 31 of the Unfair Trading Regulations. In Purely Creative and Others v. Office of Fair Trading, the CJEU held that prohibited practice 31 prohibits promotions where the consumer is required to incur any cost whatsoever in claiming the prize. This includes promotions where an alternative, free of charge option such as email is also provided. In light of these decisions, promoters conducting these sorts of prize promotions should proceed with caution. For our full Law-Now on the case, please click here.
19. The Health Lottery Ltd, 19 December 2012
A national press advert for a lottery was headed, “Mortgage? What mortgage?” Text underneath read, “Now two chances to win £100k* …”.
Complaint / Decision
The Gambling Reform and Society Perception Group challenged whether the advert was irresponsible as they believed it implied that participating in a lottery was a solution to financial concerns or a way of achieving financial security.
The complaint was upheld. The Health Lottery Limited explained that the advert was part of a series of adverts suggesting what could be done with lottery winnings. Other adverts included pictures of a villa and a suggestion to pay for university fees. The top prize quoted in the advert was £100,000 and the Health Lottery believed that this was set at a level that was too low to imply financial security.
The ASA considered that the headline of the advert implied that someone who took part in the lottery and won would be in a position to pay off their mortgage. The ASA acknowledged that, for most people, a mortgage debt is a substantial one and the largest debt they carry and to suggest that someone could pay it off would be interpreted by many as the solution to their financial concerns as it would mean they would no longer be in debt. The ASA disagreed with the Health Lottery's assertion that the top prize of £100,000 would not be enough to provide financial security, stating that, for some people, such an amount would offer some degree of financial security.
The ASA also disagreed that the advert did not suggest participating in a lottery could be a solution to financial concerns and that it was simply describing an example of what a winner could do with the winnings. The ASA noted that the CAP Code states, “Marketing communications must not suggest that participating in a lottery can be a solution to financial concerns … or a way to achieve financial security. Advertisers may, however, refer to other benefits of winning a prize”. The ASA suggested that other benefits could include purchasing new goods or experiences rather than paying off existing debts. The ASA concluded that the advert was irresponsible as it suggested that participating in the lottery could be a solution to financial concerns or a way to achieve financial security. This seems a logical decision given the simplistic nature of the text and the strict rules surrounding the marketing of lottery products.
20. Mazda UK Ltd, 19 December 2012
The website mazda-uk.co.uk featured text at the top of every page which read, “Mazda UK. We are a direct outlet for main dealer part exchanges, ex lease and company vehicles”. An image of wings reminiscent of those in the Mazda Motors UK Ltd logo featured on either side of the Mazda UK name.
Complaint / Decision
Mazda Motors UK Ltd challenged whether the advert (1) was misleading, as it implied a commercial connection with Mazda Motors UK Ltd which did not exist; and (2) took unfair advantage of the reputation of their trade marked logo and trade name.
Both complaints were upheld. The ASA acknowledged that the claim appeared alongside the Mazda UK name and logo, both of which were very similar to those of Mazda Motors. The ASA considered that phrases such as “direct outlet” and “main dealer” would be likely to be interpreted to mean that the company had an official connection with Mazda Motors. As this was not the case, the ASA concluded that the advert was misleading.
The ASA noted that Mazda UK's trading name and website URL were very similar to those of Mazda Motors, as was the logo used by Mazda UK. The ASA considered that consumers would be likely to interpret these factors to mean that Mazda UK was officially linked with Mazda Motors, for example as an authorised dealer. Mazda UK and Mazda Motors are two companies that both operate in the same industry and the ASA considered that any other material included in the advert was insufficient to counteract the impression that the two companies were linked. As there was no official connection between the two companies, the ASA concluded that the advert took unfair advantage of the reputation of Mazda Motors' trade mark name, trade mark logo and trade name. The adverts therefore breached the Code.
This is an interesting example of the ASA handling an intellectual property dispute. The ASA route provides brand owners seeking to enforce their rights with an alternative avenue within which to pursue their claims, particularly now that the remit of the CAP Code includes online content. However, as compared with court action, available sanctions are extremely limited.
21. Simon & Schuster Ltd, 5 December 2012
A press advert in Pocket World magazine and a poster at a rail station promoting the book “ZOM-B” contained a full-page image of a young zombie male reaching forwards, surrounded by blood-like splatter. The book cover, which featured the same image, was also shown. Text read, “ZOM-B DARREN SHAN THE MASTER OF HORROR SCARY JUST GOT SERIOUS…”
Complaint / Decision
A complainant challenged whether the adverts were likely to cause undue distress and harm to children.
The complaint was not upheld. Imagine Publishing, the publishers of “Pocket World” magazine, stated that the magazine was aimed at 6-14 year olds, 70% of whom were boys, and the novel was aimed at 11 year old boys. The ASA noted that although the target audience of the novel was within the age range of the magazine, the advert would be seen by all readers, including younger children. However, the ASA considered that readers would understand the image to represent a character in the advertised book, and, although some younger children may not like the image, it would unlikely to cause harm to children.
In relation to the poster at a rail station the ASA acknowledged that it appeared in an untargeted medium and was likely to be seen by children of all ages. However, the ASA again considered that the image was unlikely to cause harm to children. The adverts were therefore not in breach of the Code.