FOOD AND DRINK
1. Hard Rock Cafe (UK) Ltd, 11 February 2015
Two prize promotions were held over Twitter, promoted by the following ads:
- “@HardRockLondon A cheeky #WinWednesday for you – tell us your dream Burger topping to #WIN a meal for 2 @HardRockLondon #HappyHumpDay”
- “@HardRockCafeMRC RT & follow @HardRockCafeMCR to win this T signed by @Slash & tix to see him @Phones4uArena #Manchester 28 Nov!”
Complaints focused on whether significant conditions of the promotions were omitted from the posts and if terms and conditions should have been provided. Further, there was a challenge as to whether the prizes had been awarded in accordance with the laws of chance by an independent person or by a computer process which produced verifiably random results, as is required by the Code.
The ASA upheld the complaints.
Concerning the lack of significant conditions and terms and conditions, Hard Rock Cafe argued that it operated under Twitter usage guidelines and best practices, which did not make terms and conditions compulsory. Further, the limited number of characters made it particularly difficult to include the terms and conditions. It submitted screenshots of several tweets demonstrating the closing date for the promotion, the date on which the winner would be announced, and that a winner was drawn. Screenshots also showed the initial tweet for the promotion explaining the basic entry requirements, which was immediately followed by a tweet explaining that the winner would be chosen at random.
The ASA noted that significant conditions likely to influence entrants’ understanding of the promotions, such as the entry requirements, nature and number of prizes, closing date for submission of entries, and any applicable age restrictions, were not provided before or at the time of entry. Further, while the tweets shown in the screenshots did include some of the significant conditions, they post-dated the original tweet which the ASA considered insufficient.
In addition, the ASA felt that conditions regarding how and when winners would be notified and results would be made available were significant. It noted that, as required by the CAP Code, these conditions should have been specified before or at the time of entry and that participants should have been able to retain or easily access them throughout the promotion. As the conditions and terms and conditions mentioned above were either not provided in the case of the first promotion, or were provided prior to the time of entry and not made available throughout the second promotion, the ASA concluded that the promotions were in breach of the Code.
With regard to the complaint questioning the random selection of the winner, Hard Rock Cafe explained that it used www.randomizer.org to generate winners from the entries received. However, it did not provide documentary evidence to demonstrate this. The ASA considered therefore that, Hard Rock Cafe had not demonstrated that the promotions complied with the Code, and upheld the complaint.
This complaint highlights the importance of including all significant conditions and referring to terms and conditions prior to or at the beginning of online promotions, including on Twitter, regardless of limited space or character limit (see also the adjudication summarised in January’s ASA Adjudications Snapshot involving Rebecca Penny t/a Bridleworks (28 January 2015)).
HEALTH AND BEAUTY
2. Boots Professional Services Ltd t/a Boots Opticians Ltd, 4 February 2015
The radio ad featured a voice-over that stated “…lenses with all round UV protection included at no extra cost. Only at Boots Opticians…”
Specsavers Ltd, whose lenses offer protection from UV, challenged whether the ad was misleading as it implied that Boots Opticians’ lenses were the only ones offering complete UV protection.
The ASA did not uphold the complaint. Boots Opticians responded by stating that there was a substantive difference between UV protection and all round UV protection, which includes a UV protective coating being applied to both the front and back of the lens. It also argued that it was unique in including this as standard with no additional costs to the customer. The ASA noted that the lenses offered by Specsavers at no extra cost provided protection from the front of the lens only. It felt that consumers were likely to understand that the claim “only at Boots Opticians” highlighted a distinction between the products and therefore concluded that the claim was not misleading.
With nearly 80% of the ASA’s work involving concerns about misleading ads, it can be strict in its interpretation of the Code in this area. However, it is clear that it needs to be pragmatic with its approach; as demonstrated here where the ASA accepted the distinction between the UV protection offered by the competing products.
3. MYA Cosmetic Surgery Ltd, 4 February 2015
A TV ad included large on-screen text stating “REMOVE AREAS OF STUBBORN FAT IN 2 HOURS…RECOVERY WITHIN HOURS… MAKE YOURSELF AMAZING”. This was accompanied by a voice-over and testimonials saying “you recover within hours… I spent months trying to shift this in the gym and it was done in two hours at MYA”.
Smaller on-screen text stated “No surgical procedure is entirely without risk. Vaser is a procedure that might carry some of the same risks as traditional liposuction… Any decision to have cosmetic surgery should not be taken lightly. Allow plenty of time to reflect before going ahead with a procedure.”
Two complaints challenged whether the ad was irresponsible and trivialised cosmetic surgery.
The complaints were upheld by the ASA. It understood the complaints to be particularly concerned with the claim “Make Yourself Amazing”, and the implication that cosmetic surgery could be relied upon as a solution to weight gain. MYA felt that adult viewers would not interpret the claim as implying that cosmetic surgery could quickly remove body-image or self-confidence issues, or that the surgery was a fast way to achieve happiness or improve their appearance. MYA argued that the on-screen text emphasised this point and that the ad particularly focused on the ability of Vaser to remove “stubborn” fat following months of exercising unsuccessfully.
In particular, MYA highlighted that it had made extensive changes to the content of the ad following a ruling by the ASA in September 2014 to make clear the potential risks associated with the procedure. It therefore felt it had addressed the ASA’s previous concerns. Clearcast further explained that the on-screen text provided balance to the statements about the benefits of Vaser and the claim “Make Yourself Amazing”.
The ASA considered the changes MYA had made to the ad and the on-screen text’s attempt to balance the testimonials. However, it felt the continuous prominent references to the speed of the procedure and recovery time outweighed the small on-screen text. Therefore the changes made and disclaimers added were not sufficient to fully balance the overall emphasis on speed and ease in both the voice-over and on-screen text. As a result, the ASA found the ad was still in breach of the Code as it trivialised cosmetic surgery.
This adjudication is of particular interest as it comes after changes to advertising claims made following a previously upheld complaint. It is also interesting that while Clearcast had reviewed and cleared the amended version, the ASA upheld a second complaint against the advertiser.
4. Cells4Life Group LLP, 18 February 2015
Claims on the Cells4Life website and brochure included:
- “Cells4Life stores more UK stem cells than any other private bank”;
- “Cells4Life is the only one to store whole cord blood. This superior method can greatly increase the success of treatment should your child need it”; and
- “Cells4Life operates its collection service 24 hours a day, 365 days a year”.
Complaints were made by Precious Cells International Ltd regarding the potential misleading nature of the claims and whether they could be substantiated, particularly as they believed that:
- Future Health Technologies held more samples;
- Storing whole cord blood to be outdated and not the superior method; and
- Cells4Life was not contactable out of hours.
The ASA did not uphold the first or the third complaint but did uphold the second.
1. Cells4Life responded to say that while Future Health Technologies stored more international samples in the UK, it held more UK samples than any other UK bank, representing more than 50 per cent of the UK market. As substantiation, it submitted evidence from a leading UK cord blood phlebotomy company stating it was the largest procurer of cord blood in the UK, and that it had recently spoken to most of its major competitors to confirm it stored more samples per month. Further, it explained that its annual turnover was significantly higher than that of its competitors as it stored more UK samples per month.
The ASA considered Cells4Life’s substantiation and concluded that it had taken adequate measures to ensure the comparison was accurate. It also felt that the ad made sufficiently clear that only the storage of UK stems cells was being compared.
2. The advertiser explained that the claim of superiority was used because the processing method did not result in loss of cells from the sample, thereby increasing the chance of success of future treatment. Cells4Life also provided four studies demonstrating this point.
The ASA felt that to substantiate this claim Cells4Life would need to provide documentary evidence demonstrating that the claim was robustly supported. While all of the studies demonstrated that 100% of the cells from a whole cord blood sample were stored, one of the studies went on to consider potential clinical drawbacks with this method of preservation. The author further explained that the loss of cells was not expected to reduce the effectiveness of the sample. The ASA thus decided that the evidence for this claim was not definitive and that the claim was not substantiated robustly enough.
3. Cells4Life submitted confirmation from its courier company that it operated on behalf of Cells4Life 24 hours a day, seven days a week. It further argued that it always had staff members on call, and that an automatic attended call system would transfer calls to the relevant person out of hours. To substantiate this it provided evidence from its phone system, including a list of all calls received. The ASA considered this evidence sufficient to substantiate Cells4Life’s claim that it operated “its collection service 24 hours a day, 365 days a year”.
Comparison and superiority claims are often challenged. Here, the advertiser was able to substantiate two of the claims. The first claim demonstrates that marketing claims must be crafted to fit with the substantiation available to the advertiser. However, the second superiority claim was particularly bold, of the type where the ASA is likely to require significant substantiation, which the advertiser did not have.
5. LighterLife Fast 2 Ltd, 25 February 2015
A TV ad for a weight loss plan claimed “You’ll get 100% of the RDAs of vitamins and minerals in just 600 calories, and you can’t do that with ordinary food”.
The complaint questioned whether this claim could be substantiated but the ASA did not uphold it. The advertiser submitted research demonstrating that an energy-restricted diet using conventional food which would meet the minimum EU Recommended Daily Allowances (RDAs) of vitamins and minerals would have a minimum of 743-790 calories.
The ASA felt the claim would be interpreted by viewers to relate to their own ability to devise a diet meeting these requirements, rather than an absolute claim that it was impossible to do so. While the ASA did not believe the research provided by the advertiser conclusively demonstrated that it was not possible to construct such a diet, it did note that in attempting to do so, extensive research and analysis of nutritional databases by nutritionists was needed. Further, though the diets constructed during the research included conventional foods, the combinations needed to meet 100% RDAs would not generally be described as “ordinary”. The ASA felt that it was extremely difficult for experts to create a diet amounting to as little as 600 calories, and it would be highly unlikely that an average consumer would be able to do so. Thus, the claim was not misleading nor in breach of the Code.
This result, particularly when read in conjunction with that of Lelli Kelly SpA below, demonstrates the practical and consumer-facing approach taken by the ASA. In both of these adjudications it considered the consumer’s interpretation of the claims, rather than their literal meanings, and understood the context within which the product was being sold and the claim was being made.
6. Philips Electronics UK Ltd, 25 February 2015
Video ads claimed juices made using a Philips juicer by “Nutritional Health Coach” Madeline Shaw had health benefits. This included a watermelon juice which was described as “an amazing fat buster” due to “citrulline in watermelon” which “reduce[s] the accumulation of fat in our fat cells”; beetroot was praised as acting as a “great cleanse for the liver”; and a “Beat the Bloat” juice was held out as being “great for toning your tum”.
The ASA upheld all of the complaints, which questioned if the claims could be substantiated.
Philips Electronics UK Ltd provided evidence for the claims in the form of animal studies showing the health effects in mice and rats, as well as articles from websites which supported the effects of individual ingredients.
The ASA considered the claims and felt that within the context of the ad they would be considered by viewers to mean the juices would have the purported effects in humans. They would therefore expect to see robust documentary evidence proving these effects. The evidence provided by the advertiser was in the form of studies which related to mice or rats, which the ASA concluded was not sufficiently robust to demonstrate the effects of the ingredients in humans. Philips Electronics UK Ltd also provided articles from websites, which the ASA concluded was insufficient as the articles were not linked to a clinical trial. Therefore, the advertiser had not provided the requisite robust documentary evidence to support the claims made and the ad was found to be in breach of the Code.
This result is not surprising as the ASA is particularly strict with claims relating to health and requires a high level of substantiation from advertisers.
7. giffgaff Ltd, 4 February 2015
The YouTube ad opened with a woman screaming for help and running from a man holding a chainsaw. As the ad went on, several screaming characters, including a clown, zombie, pumpkin head and ghost, among others, were shown being pursued by the last. The ad concluded with a humorous twist as they were shown to form a mock choir.
Two complaints were made:
- The child of the complainant had seen the ad prior to a programme for young viewers. The complaint questioned if the ad was appropriate for children.
- The complainant noted that it was not possible to skip the ad until several seconds had played and challenged on the basis that it was unduly distressing.
The ASA upheld the first complaint and did not uphold the second:
1. giffgaff responded that its ad was a parody of horror films, designed to be playful, and was in line with advertising during the Halloween period of the year. It agreed that the ad was inappropriate for children and explained its arrangement for it to be shown only to YouTube viewers whose accounts recorded them as over 18, had searched for topics such as “horror” or “Halloween” or were watching video content of a similar topic on YouTube, and were logged in at the time the ad was played.
The advertiser also made clear in this particular case that the user had been logged in as over 18, had searched for similar content, and had not previously skipped the trailer version of the ad. It argued that it was impossible to control situations where adults allowed children access to their account. giffgaff therefore felt it had put in place adequate protection through YouTube’s filters to target responsibly.
The ASA agreed that the ad was unsuitable for children. Further, it noted that the ad was played prior to content of interest to very young children, which would most likely not be of interest to over 18s. In view of this, the ASA believed that it was reasonable for viewers to expect only ads suitable for young audiences to be shown prior to this content, and therefore the ad was inappropriately targeted and breached the Code.
2. giffgaff responded to the complaint, stating that those over 18 were unlikely to be harmed by the ad as the initial tension turned to humour as it progressed. It argued that the tone, content and message would be understood by adults to be light-hearted.
Further, giffgaff explained that it elected that the ad be played for five seconds before being skipped by the viewer, and that the content in these five seconds was not unduly distressing as it featured a black screen with only the beginnings of a woman’s screams.
The ASA noted that the timing of the ad near Halloween, lack of graphic imagery in the opening scene and inclusion of a skip function made it unlikely to cause undue stress in adult viewers. Those who continued to view the ad would see the plot twist and any fear would dissipate. Thus, the ASA concluded that the ad was not in breach of the Code.
The fact that the first complaint was upheld demonstrates the hard line the ASA can take with regard to inappropriate targeting. Although the ASA understood giffgaff’s position and that it had used YouTube’s targeting filters to their full extent, it ultimately decided the ad was inappropriately targeted and thus in breach of the Code.
8. Kazam Online Ltd t/a Kazam Mobi, 25 February 2015
A TV ad for Kazam Online Ltd t/a Kazam Mobi’s mobile phone featured a woman wearing little clothing while ironing her shirt, with close-up shots of her body as she did so. After getting dressed her mobile was heard ringing. She searched her pockets before finding it in the shirt pocket. A voiceover stated “Introducing the world’s slimmest phone”.
Eight complaints challenged if the ad was offensive due to being overtly sexual and objectifying women, as the content did not relate to the advertised product. The ASA upheld the complaint.
The advertiser explained that it had ensured the ad was played during programmes that were appropriate to the tone of the ad, and had avoided programmes that may be seen by children. Clearcast stated that the ad was slightly sexual but that it was not gratuitously so or likely to cause offence. It had given the ad an ex-kids restriction, though it believed ads including women and men in underwear or in slightly suggestive scenes were common in UK advertising.
The ASA considered that as much of the ad focused entirely on the actress and her body, it was sexually suggestive. Further, the music and voice-over, as well as the lack of relevance to the advertised mobile phone, reinforced that the overall style of the ad served to objectify women. On this basis, the ASA concluded that the ad was likely to cause serious offence and was in breach of the Code.
Sexualised advertising is particularly susceptible to falling foul of the Code, especially where there is no relevance to the product in question. The ASA’s approach with this complaint is particularly unsurprising given the adjudication in September regarding Must Have Ltd t/a VIP Electronic Cigarette’s ads.
9. TalkTalk Telecom Ltd, 25 February 2015
A press ad stated “12 months half price totally unlimited broadband… was £3.50 Package now only £1.75 a month”.
The complaint questioned if £3.50 was the genuine sale price, and if not, whether this ad was misleading. The ASA upheld this complaint.
The advertiser explained that all customers would pay £3.50 during their contract after the initial promotional period had finished. It also provided the pricing history of the product to support the claim.
The ASA felt consumers would interpret the claim to mean the usual price was reduced by half, and that they would benefit from a savings of £1.75. It also took into account the nature of the telecommunications sector and the fact that pricing fluctuates regularly. In particular, the price of the package varied between £1.75 and £3.50 during a one year period. The ASA therefore felt it would be more relevant to consider the recent pricing history, and found that the product was priced £1.75 for roughly the prior two and a half months. As a result, the ASA felt £1.75 was the usual selling price at the time the ad appeared, rather than £3.50. In light of this, it felt that the ad was misleading and in breach of the Code.
This result demonstrates the importance of using the genuine sale price of a product when claiming discounts. While arguably £3.50 was one of the genuine sale prices for the product in the year preceding the ad, this was only the case for a total of 18 days immediately preceding the half-price promotional period. The ASA therefore took a more holistic view of the sector and pricing of the product to determine if the ad was misleading. This claim, along with many other pricing issues, is also covered by the BIS Pricing Practices Guide, which stipulates that advertisers must justify that any price advantage claimed is real and accurate.
HOLIDAYS AND TRAVEL
10. Booking.com BV, 18 February 2015
A TV and cinema ad replaced swear words with the word booking, with a voice-over commenting “you got it booking right… it doesn’t get any booking better than this… look at the booking view. This is exactly what you booking needed.”
The ASA received a total of 2,345 complaints in 2014 and early 2015. The majority challenged whether the ad was offensive as the word “booking” was used to substitute a swear word. Several other complaints questioned if it was irresponsible as it condoned or encouraged children to swear. Finally, a number of complaints challenged the scheduling and placement of the ad during and before children’s programming (including a Harry Potter film on TV and screenings of ‘Paddington’ and ‘Night at the Museum: Secret of the Tomb’ in the cinema).
The ASA did not uphold the complaints. Booking.com BV responded stating:
1. The word “booking” was used to reinforce brand recognition and in a positive tone. Clearcast also felt that the word was not being used gratuitously and that, as the word featured in the advertiser’s name, its repeated use was reasonable. In addition, the Cinema Advertising Association (CAA) explained that the lack of bad language and history of word substitution in British humour meant that those who translated the word to an expletive due to their knowledge of swear words were likely to be amused. Further, if they were offended, the CAA considered that the purpose of the Codes is not to protect the public from offence due to their own worldliness, and any offence caused would not be serious or widespread.
The ASA agreed that the repeated use of the word was intended to increase awareness of the brand and was a humorous way to express this message. It noted the voice-over artist’s enunciation and determined that it was clear and sufficiently distinct so as to not be confused with an expletive. The ASA also agreed that the use of the word was not gratuitous or out of context and that the lack of expressly explicit language, while potentially distasteful, was unlikely to cause widespread or serious offence. Therefore, it did not uphold the complaint.
2. It could not reasonably be concluded that the ad encouraged children swearing as there were no swear words or words that sounded like derivatives from swear words featured in the ad. Clearcast also stated that if children were to repeat the word “booking” itself, this would not be cause physical, mental or social harm or antisocial behaviour. Further, the CAA considered that the ad relied on the viewer’s worldly knowledge, which children do not generally possess, for this interpretation to have potency, and therefore the ad was socially responsible.
The ASA felt that the word “booking” was unlikely to be recognised as a reference to an expletive by those unfamiliar with the word, therefore children would infer “booking” as a reference to the advertiser’s brand. Further, it did not consider that encouraging children’s use of the word “booking” in the manner of the ad was equivalent to having encouraged children to use expletives. As a result, the ASA concluded the ad was not likely to condone or encourage children to swear.
3. As it did not believe the ad to condone or encourage swearing in children, Booking.com BV did not feel there was an issue with regard to scheduling of the TV ad or placement of the cinema ad. It also noted that Clearcast and the British Board of Film Classification respectively had reviewed the ad and it was scheduled and placed in accordance with their assessments.
As described above, the ASA considered the word “booking” far enough removed to not be confused with an expletive, and further felt that older children who were aware of the swear word it was replacing were unlikely to be adversely affected by the ad’s content. It therefore concluded that the TV ad was acceptable without a scheduling restriction and that the cinema ad was appropriately placed.
As the high volume of complaints suggests, bad language is often the source of many complaints. However, this is another example of the fact that although an ad can attract a significant number of complaints, this does not necessarily mean it is going to be considered by the ASA as likely to cause serious or widespread harm. Burger King Ltd’s adjudication on 2 June 2010 is a similar example.
11. Heathrow Airport Ltd, 4 February 2015
Three national press ads, one bus stop ad, two tube car ads and an email presented arguments in favour of expanding the airport. The ads made particular reference to how the growth of Heathrow would lead to an economic benefit and the unique ability to provide access to burgeoning markets.
The complaints focused on whether the points above were misleading and could be substantiated:
1. The ASA did not uphold six of the complaints.
Heathrow Airport Ltd provided reports explaining that the UK economy would benefit from increased expenditure from the expansion, a significant number of jobs would be created, the expansion would stay within legally binding carbon limits, and that Heathrow is the only airport capable of providing the links needed, as a hub airport, to increase businesses’ connectivity to new markets.
The ASA considered that consumers would understand that the ads were not absolute or claiming that only the expansion of Heathrow would lead to economic benefits to the exclusion of other plans, but rather that statements relating to future economic performance are always subject to a degree of uncertainty, and thus represented the advertiser’s opinion. It also felt that the statements focused on the benefit of economic growth without reference to environmental sustainability and that it was reasonable to claim wide-reaching benefits, particularly those arising from GDP growth, to varying demographics. As such, these claims were not misleading or in breach of the Code.
2. The ASA upheld the final complaint regarding the claim that direct flights build 20 times more trade with long-haul destinations than indirect flights.
The advertiser provided reports in which UK business’s trade with countries to which there are daily flights was stated to be 20 times that of countries with less frequent or no direct service.
The ASA considered that the claim was presented as a fact, rather than an educated assumption and therefore consumers would expect it to be capable of robust substantiation. It felt that this was not the case, as the claim implied that increased trade with emerging markets was caused by direct flights, whereas several other factors could impact trade value. This was made explicitly clear in one report Heathrow Airports Ltd relied upon. The ASA therefore found that the claim could not be adequately substantiated and thus breached the Code.
This is currently a contentious issue and the subject of a great deal of press attention. With little scope for the public’s input into the decision to expand Heathrow, complaints will undoubtedly be levied against such advertisements as a method of protest. However, the ASA has taken the stance that the public will recognise the context within which these ads appear, and thus take many claims to be the views and expectations of the advertisers, rather than fact.
12. Lelli Kelly SpA, 11 February 2015
A TV ad for children’s boots stated “…you get the Lelli Kelly diamond bracelet with studs to match your boots” with several visual depictions of the bracelet, as well as the bracelet and boots together.
Complaints primarily focused on the fact that the bracelet was not made of real diamonds with:
- six complaints challenging whether the claim that it was “diamond” was therefore misleading; and
- two complaints focused on the possibility that the claim took advantage of children’s lack of experience and credulity.
The ASA did not uphold either of the complaints.
1. Lelli Kelly responded stating that it was obvious the diamonds were not real as the bracelet was being given free with a pair of boots sold at between £49.90 and £74.90. Clearcast went on to argue that the several visual depictions of the bracelet showed that the stones matched those of the boots and the voice-over stated that the bracelet came “with studs to match your boots” alongside a visual of the bracelet and boots together. This therefore made it clear that the bracelet was not made of real diamonds.
The ASA considered the seven visuals of the bracelet, reference to the diamonds as “studs to match” the boots, and the fact that the bracelet was given free with a pair of children’s boots, and determined that adults would understand that the studs were not real diamonds. As a result, and due to the fact that adults would be making the purchasing decision, the ASA did not consider the ad to be misleading.
2. Lelli Kelly argued in response to this complaint that children would not understand the true value of real diamonds and would therefore be unlikely to perceive the bracelet as valuable for this reason. Rather, children would be attracted to their shiny appearance.
The ASA felt that though the claim was likely to be interpreted literally by children, they were unlikely to understand a diamond’s real value or be attracted to the bracelet due to its cost, and would instead be attracted by its shiny colourful appearance. Further, the ASA noted the multiple visuals of the bracelet and, as a result, felt that children would be unlikely to have an unrealistic expectation of the bracelet. Thus, it concluded that the ad did not take advantage of children’s lack of experience or credulity.
These adjudications are pragmatic, taking a practical, rather than literal, view as to the meaning of the ad. However, as always, advertising for children’s products needs to be especially carefully reviewed.
13. Island Bear Confectionery, 18 February 2015
A regional press ad stated “Need drugs to get you through Christmas? Get them at… Island Bear Confectionery” “Caffeine. Sugar. Chocolate. All Class ‘A’, All Legal, No Prescription Needed”.
The complaints centred on the ad’s potential glorification of drug use, effect on vulnerable people and unsuitability for children. They challenged whether the ad was harmful and irresponsible.
The ASA did not uphold the complaints.
Island Bear Confectionery argued that the definition of ‘drug’ was broad and similar to that of the word ‘stimulus’, and that under this definition, caffeine, sugar and chocolate could all be defined as ‘drugs’. Further, though the word could be interpreted as a reference to abused substances, it could also be seen in a curative or medical context. It also explained that the use of the phrase “All class ‘A’” was a play on the double meaning of both ‘first class’ and the classification of illegal drugs. In addition, as no customers had come to the shop asking to purchase drugs, it was clear that consumers had understood the intended humour.
The ASA acknowledged the diverse meaning of the word ‘drug’ but noted that the context of the ad made it likely that readers would associate it with recreational, rather than medicinal, use. However, it felt that the ad made clear that the references were humorous comments on people’s activities during the holiday period, rather than glorification of harmful drug use. Therefore it concluded that the ad would not cause harm to vulnerable people.
The ASA noted the concern about the ad’s suitability for children but considered the content of the publication in which it was shown to be unlikely to appeal to children, thus reducing the likelihood they would see the ad. For those who did see the ad, the ASA concluded it was unlikely that they would interpret it as an incitement to recreational drug use. As such, the ad was not found to be in breach of the Code.
The ASA often takes a strict interpretation of the Code when considering potential glorification of drug use and at times goes so far as to say that encouraging apathy towards illegal drug use is in breach. However, this is an example of a drug reference being made in a more benign context which, together with its lack of edgy imagery and publication in the regional press, meant the ASA did not consider it was irresponsible.
This result could be seen as fairly lenient, and advertisers should be wary that similar references are in danger of being interpreted as condoning illegal activities, irresponsible and offensive.
14. DSG Retail Ltd t/a Currys PC World, 25 February 2015
A press ad stated “save £200 on our colourful range of HP Pavilion laptops” and featured images of three laptops. Text underneath the images specified the make of the laptops which were discounted.
The ASA upheld the complaint, which questioned if the ad was misleading as some products in the HP Pavilion range were not discounted.
DSG Retail Ltd t/a Currys PC World explained that the three laptops featured in the ad were all discounted and the text underneath made clear that customers should check online or in store to see the full choice of laptops that were discounted. The advertiser further stated that the specifications in the ad of the make of laptops discounted applied to only four models, three of which featured in the ad.
The ASA considered that the headline claim “save £200 on our colourful range of HP Pavilion laptops” would be taken to mean that all laptops in the range would be discounted, and that the three featured were included as examples. It was not clear to the ASA that the text detailing the models discounted related to the three laptops featured in the ad, rather than the entire range of HP Pavilion laptops, and thus this text did not clarify the headline claim. Even if the text did make this clear, the ASA felt that the qualifying information would have in fact contradicted, rather than clarified, this claim. Therefore, the ad was misleading and in breach of the Code.
This result is a strict interpretation by the ASA. However, it must consider how the average consumer will understand the ad and whether the claim is likely to cause them to decide to buy something that they otherwise would not have bought. In this case, it is clear that the advertiser’s headline claim could not be fairly balanced by the qualifications it attempted to make, leading the ASA to uphold the complaint.
15. TomTom International BV, 25 February 2015
A brochure promoting a traffic service for the advertiser’s satellite navigational device stated “the quality of traffic information is determined by four points. TomTom outperforms competition on three out of four…TomTom gets you there fastest.” Footnote text referred to research conducted by an independent testing house.
Garmin, a direct competitor to TomTom International BV, submitted complaints focused on whether the claims were misleading and could be substantiated, particularly as there was not a mechanism in the ad allowing consumers to verify the comparative claims. The ASA upheld these complaints.
The advertiser explained that it was clear that the claim that its service would produce the fastest journey was measured against the four benchmarks set out in the ad: coverage, reliability, accuracy and update frequency. TomTom International BV also provided evidence in the form of reports, news articles and opinions from its own experts demonstrating its product’s superiority over competitors’ products. It stated that the results of independent research on the claims could be provided on request to any interested parties to verify the claim. The advertiser asserted that Garmin had a fundamental misunderstanding of how its product functioned and explained in detail the process by which it produced traffic updates.
The ASA felt that the claim “TomTom gets you there fastest” was an independent and objective statement and that consumers would expect it to be capable of substantiation. The report submitted was outdated and the advertiser did not submit sufficient evidence to show that this fact was insignificant to substantiating its claims. Further, the report from the independent testing house did not include raw data or results from individual tests conducted, nor analysis to confirm that results were statistically significant and in light of this the ASA felt they could not be extrapolated to support a general superiority claim. In addition there was no explanation of why the parameters of the test were applied or weighted the way they were. The ASA therefore considered the test to be flawed and not sufficiently robust to substantiate the claims made in the ad. This meant the advertiser was unable to prove superiority on two of the four benchmarks it identified, making the ad misleading.
Interestingly, the advertiser did not provide the research referred to in the footnote text of the ad in support of its claims, and the text did not refer to the test data provided as substantiation or make clear how consumers could access that information.
As a result, the ASA found the claims to be misleading and the ad to be in breach of the Code. This result makes clear the ASA’s demand for transparent and substantial evidence when substantiating a claim of superiority: the ASA must determine whether an ad allows consumers to make an informed choice of product.
16. Zandera Ltd, 25 February 2015
A poster and magazine ad for E-Lites electronic cigarettes featured a man with a beard and tattoos dressed in a suit, with a packet of E-Lites in red and white packaging. Text stated “e-lites.co.uk the UK’s most popular electronic cigarette… contains nicotine. 18+. Existing smokers only”.
Two complaints were made, both of which were not upheld by the ASA. The complaints challenged if the ad was irresponsible as it was not clear that the product was an electronic cigarette and the model was likely to appeal to those under 18.
The advertiser pointed to the text in the ad and felt that it was clear from this that the product was not a cigarette. It also explained that its brand was very recognisable and provided data to support this. The ASA considered that the while the packaging in which the e-cigarettes were placed was reminiscent of a well-known tobacco brand, the text made it sufficiently clear that the ad was not for a tobacco product, but was rather an e-cigarette. Therefore, it concluded that the ad was not irresponsible.
In response to the second complaint Zandera Ltd stated that the text “18+. Existing smokers only”, as well as the model’s age of 27, substantial beard, formal styling and tattoos, all made clear that the product was aimed at people over the age of 18. The ASA felt that while the model’s appearance was fashionable, it was not likely to have particular appeal to people under 18 and consequently the ad was not irresponsible.
E-cigarettes have drawn a high number of complaints; however, this is an unsurprising result. While it may be a controversial product, in past adjudications the ASA has not upheld complaints if ads were responsibly marketed at the correct audience, as was the case with this ad.