This summary provides a selection of March and April’s most interesting ASA adjudications and highlights the key issues considered in those rulings.
This edition features two adjudications that assess whether irresponsible and unsafe driving practices were encouraged. In coming to opposite conclusions, the ASA considered the Highway code when deciding whether the adverts should be considered to be in breach of the Code.
This edition also features the usual selection of rulings that assess whether or not an advertiser provided full and proper substantiation for claims made in its marketing communications, whether a promotion had been administered fairly and whether an advert encouraged excessive drinking.
1. John Lewis Partnership plc – 8 March 2017 – a promotion on a website was found to be administered unfairly as consumers were unable to take advantage of a price match offer.
2. Victoria Plum Ltd – 26 April 2017 – an advert for a 60% off price promotion was found to be misleading as the discounts were only applied to exclusive partner brands, rather than the majority of the product range.
TRAVEL AND MOTORING
3. Fidelity Administration Services Ltd t/a Fidelity International – 15 March 2017 – an advertisement was not found to be irresponsible as there are no legal requirements for drivers of cars that were originally made without seat belts, for example classic cars, to wear seat belts or to have seat belts fitted retrospectively.
4. Park Plaza Hotels Europe BV- 19 April 2017 - an advert promoting discounted room rate was found to be misleading as there was a lack of prominent information highlighting that the promotion was subject to availability.
5. On the Beach Ltd – 26 April 2017 – an advert promoting an apartment was found to be misleading due the use of a confusing accommodation rating system.
6. BMW (UK) Ltd – 26 April 2017 – an advert was found to be in breach of the Code as it promoted irresponsible driving and made speed the overarching theme.
FOOD AND DRINK
7. Pure Milk Vodka – 8 March 2017 – three adverts were found to be irresponsible as they encouraged excessive drinking and linked alcohol to sexual activity.
8. Appy Food & Drinks Ltd – 8 March 2017 – a claim of ‘100% natural’ on an advertiser’s website was found to be misleading and unsubstantiated as it did not comply with FSA guidelines.
HEALTH & BEAUTY
9. Perfect Smile Surgery Ltd – 8 March 2017 – three claims were found to be misleading due to a lack of adequate substantiation.
10. Selfridges Retail Ltd – 12 April 2017 – a clothing advert was not found to be irresponsible as the model was not the focus on the advert, nor was she unhealthily thin.
11. Coty UK Ltd – 19 April 2017 – a TV advertisement for makeup was found to be misleading as the use of lash inserts and the post-production technique were likely to exaggerate the effect beyond what could be achieved by the product among consumers.
12. Coral Interactive (Gibraltar) Ltd – 8 March 2017 – an advert was found to be misleading as it failed to adequately display significant limitations and qualifications to a cash out feature.
13. BetVictor Ltd – 15 March 2017 – an advert was not found to be misleading because it did not imply that a favourite horse would always win a race.
14. Kaspersky Lab UK Ltd – 5 April 2017 – a TV advert was found to be harmful to children as it normalised the practice of sending explicit images by text.
15. Time Out Digital Ltd – 19 April 2017 – an advert for a heavily discounted photography course was not found to be in breach of the Code as the claimed savings could be substantiated.
16. Golden Charter Ltd – 26 April 2017 – an advert for funeral care was found to be in breach of the Code as the information on the advertiser’s website that substantiated the comparative claims was not easy accessible to consumers.
1. John Lewis Partnership plc – 8 March 2017
A promotion on the company website advertised an Apple Watch at £249 as part of a price match. The promotion coincided with a prominent announcement on the home page, which stated "BLACK FRIDAY EVENT - Friday 25 - Monday 28 November - We've lowered hundreds of our prices this weekend. Check our offers online and in store - NEVER KNOWINGLY UNDERSOLD SINCE 1925". Text further down the home page stated "PRICE MATCH - Today we're matching a competitor's promotion". A "Shop now" button linked to the product pages.
Complaint / Decision
The complaint was on the basis that the website listed the Apple Watch as out of stock when the complainant attempted to buy it at the price match price, but then it was available the following day at full price. The complaint was therefore as to whether the promotion had been administered fairly.
In response, the advertiser drew a distinction between a planned promotion and a reactive Price Match based on competitor activity, which had resulted in an unprecedented increase in sales. The advertiser supplied information showing their total stockholding (including availability in their central distribution network, online and in stores) before, during and after the Price Match. Their systems did not give them live stock information and they only knew their stock levels at the start of each day. As the advertiser was unsure whether they could fulfil demand for the day, they made a decision to remove the product from sale on their website.
The ASA noted that the term "PRICE MATCH" was used on the advertiser’s home page, in relation to matching a competitor's promotion. As the Price Match was linked on the website to a time-limited promotion, it was considered that the promotional marketing rules applied.
The ASA noted that the rate at which a product sold was likely to increase when the price was lowered temporarily, and that there would therefore be an increased risk that it would sell out. Whilst the ASA acknowledged that the offer arose from the advertiser’s Price Match policy, rather than a price promotion they had planned, they ruled that the advertiser’s action to make a product unavailable on their website, while their competitor's promotion was still running denied online consumers the opportunity to purchase at the Price Match price. As such, the ASA ruled that the promotion was not conducted fairly and was in breach of the Code.
Advertisers must conduct their promotions efficiently, carefully considering anticipated demand and stock levels and should withdraw promotions (in this case the Price Match) if there is any risk that consumers will not be able to take advantage of it.
2. Victoria Plum Ltd – 26 April 2017
The advertiser’s website included the text "Up to 60 per cent off - Great Savings on Big Brand Names". A number of brands were quoted in the advert that included Laura Ashley, The Bath Co, Mira Showers, Jacuzzi, Mode Bathrooms and Triton.
Complaint / Decision
A complaint was made by a competitor on the basis that the advert was misleading as the 60% offer was only available on certain of the advertiser’s exclusive products.
In upholding the complaint, the ASA noted that only 25 products out of the 250 products available in the sale received a 60% discount and that all of those were the advertiser’s exclusive products. The remainder of those discounts ranged from 59% to 1%.
In upholding the complaint, the ASA considered that consumers would understand the claim, which included a reference to “Great Savings on Big Brand Names” immediately after the 60% discount reference, to mean that while not all products would be at that discounted price, a significant proportion of their products would be available with a 60% discount and that, moreover, those discounts would be across a number of recognisable brand names which could include, but would not be exclusively, in-house or partnered brands.
Although a significant proportion of products had been on sale with a 60% discount, the ASA considered that the advert was misleading as the claim did not make clear that the discount was limited to exclusive partner brands.
Victoria Plum has been the subject of a number of upheld complaints, including four over the last year in relation to price claims, in addition to a number of informally resolved complaints. It is interesting here that the ASA accepted that a significant proportion of products which were available at the discount were available at the 60% discount quoted, but the claim was misleading as it did not make clear that there was a significant limitation to products which were available at this discount. The reference to “Great Savings on Big Brands” was clearly the issue here.
TRAVEL AND MOTORING
3. Fidelity Administration Services Ltd t/a Fidelity International – 15 March 2017
An advertisement for Fidelity International featured an image of a woman driving a convertible car and was not seen to be wearing a seatbelt.
Complaint / Decision
The complainant challenged whether the advert was irresponsible on the basis that the driver was not shown to be wearing a seat belt.
Although the advert prominently featured the head and torso of a mature woman driving a convertible car, smiling, with her scarf flowing in the wind, there were no seatbelts visible in the partial shot. The ASA considered that the focus of the advert was on the investment products targeted at those considering financial options for retirement and the image only served as an aspirational portrayal of a carefree, post-retirement lifestyle and was therefore unlikely to encourage readers to disregard the importance of wearing seat belts.
The ASA analysed the scenario depicted in the advert and took the view that the car was likely to be a classic car, based on the design of the steering wheel, the chrome trim of the windscreen and the dashboard and it was likely made without seatbelts, or fitted with over-the-lap seatbelts, which would not be visible in the image used. The ASA noted that there were no legal requirements for drivers of cars that were originally made without seat belts, for example classic cars, to wear seat belts or to have seat belts fitted retrospectively. As such, it was considered that the advert was unlikely to have depicted a driving practice that was likely to condone or encourage a breach of the Highway Code.
This ruling will provide comfort to advertisers who feature classic car in their adverts and demonstrates that the ASA will use the Highway Code to consider whether an advertisement is in breach of the code. It is clear from this ruling that the ASA will assess any potential disregard of safety equipment by taking into account the wider context and purpose of the advertisement.
This ruling is perhaps somewhat surprising in light of recent ASA adjudications that have been very strict on this sort of issues, including a deodorant advert featuring girls in the back of a car dancing without seatbelts and an advert for a CD where the drivers were seen to lift their hands off the steering wheels and glance at other passengers.
4. Park Plaza Hotels Europe BV – 19 April 2017
An email advertisement stated “BLACK FRIDAY ARRIVED EARLY LONDON £119…Enjoy Black Friday one week early with our exclusive offer…£119 for all our London hotels. Book before 23.59pm (CET) Tuesday 22 November 2016 on parkplaza.com for stays between 18 November 2016 and 15 April 2017”.
Complaint / Decision
Two complainants challenged whether the ad was misleading and could be substantiated, as they were unable to find any rooms available for £119.
In response, the advertiser stated that the demand for the promotion had been overwhelming compared to previous promotions and they therefore did not anticipate the rate at which the rooms would be booked using the promotional rate. The advertiser, however, did not provide any documentation showing the basis upon which they had made their estimations.
The ASA upheld the complaint. Even though the advertiser had included ‘subject to availability’ on their click-through terms and conditions, this did not satisfy the need to provide prominent information in relation to the limited availability of the promotion.
As the advertiser had not demonstrated that they had made a reasonable estimate of the likely response and had not included sufficiently clear information on the email about the likely room availability at the promotional price, it was concluded that the advert was misleading and in breach of the Code.
This ruling demonstrates that advertisers must always take particular care to estimate likely demand on sales promotions, and should be prepared to provide detailed evidence showing how they had estimated the likely demand. Furthermore, as the ASA considers that information regarding any limitation on availability is vital information for the consumer, advertisers should ensure that such information is clear and has a prominent place on the advert, and does not feature solely in terms and conditions. The CAP Code expressly provides that phrases such as “subject to availability” do not relieve advertisers of the obligation to do everything reasonable to avoid disappointing consumers and including “subject to availability” will not prevent a complaint being upheld if the ASA is not satisfied that a reasonable estimate of the likely response has been made and that any limitation to availability has not been made clear to consumers so that they can make informed decisions on whether to participate in a promotion.
5. On the Beach Ltd - 26 April 2017
The advertiser’s website promoted a holiday apartment called Laguna Park 2. The page was headed “Laguna Park 2” and beside the text, three gold stars were shown. At the bottom of the page text stated “Official rating 2 star”.
Complaint / Decision
The complainant, who had booked a holiday at the apartment, challenged whether the three-star rating was misleading.
In response, the advertiser stated that this type of apartment complex in Spain were often run as hotels, as they provided similar services. However, they were ranked in “keys”, not stars, with the highest rating being “3 key”. In order to provide a level playing field with hotels that used a star ratings system, it was common practice to allocate an equivalent rating for apartments. They stated that the key rankings were usually translated as: one key being equivalent to two star, two key equivalent to three star and three key equivalent to four star.
In assessing the complaint, the ASA noted guidance on the ABTA website that consumers must satisfy themselves that any accommodation had the facilities they were looking for because star ratings differed across the industry. However, the ASA highlighted that the official rating for accommodation was usually communicated using star symbols and therefore unless the advert made clear that the advertiser was using their own rating, consumers were likely to expect the star rating to be the official rating. Whilst, the advertisement included text at the bottom stating the official 2 star rating, the text lacked prominence and the qualification contradicted, rather than clarified the three star rating. The ASA therefore concluded that the advertisement was misleading and in breach of the Code.
It is not surprising that the ASA were not happy with the advert, nor the advertiser’s offer to amend the advert to refer to “the official 2 key rating” being the equivalent of a 3 star rating, as a result of the possible confusion for consumers. The ASA will always seek to ensure that advertising claims are clear and not run the risk of being confusing to consumers.
6. BMW (UK) Ltd – 26 April 2017
An advert featured the headline claim "LUXURY JUST LOST ITS MANNERS." Further text stated "Introducing the BMW M760Li xDrive. M Performance TwinPower [sic] Turbo technology. 6.6 litre V12. 610 hp. 0-62mph in 3.7 seconds. For some, the climb to the top is quicker".
Complaint / Decision
The complainant was on the basis that BMW had made speed the main message of the advert and that contrary to the Highway Code, which prohibited driving without reasonable consideration for other road users, the phrase "Luxury just lost its manners" condoned irresponsible driving.
In upholding the first complaint, the ASA considered that, in breach of the Code, the cumulative effect of the claim “Luxury just lost its manners”, the vehicle’s acceleration and power statistics, and the claim “for some, the climb to the top is quicker” made speed and acceleration the main message of the advert.
Also, in relation to the second part of the complaint, it was considered that the claim “Luxury just lost its manners” conveyed the notion that because of the car’s power, drivers did not need to have due regard to other road users. As such, the ASA concluded that the advert condoned irresponsible driving contrary to the Highway Code and was therefore in breach of the Code.
This ruling provides a reminder to advertisers that they should ensure that they strike the right balance between showcasing a car’s abilities and demonstrating a responsible attitude towards road safety – any suggestion of undue speed, particularly when portraying real driving conditions, is likely to risk a complaint being upheld. The ASA will be likely to uphold any advert they consider encourages driving practices that are contrary to the Highway Code.
FOOD AND DRINK
7. Pure Milk Vodka - 8 March 2017
The ruling concerned three adverts for Black Cow vodka:
A press advert in the Week featured a cartoon drawing of a cow driving a sleigh and delivering gifts of Black Cow vodka. Text beneath this stated “BLACK COW pure milk vodka. So smooth you can drink it until the cows come home …”
A video advert on a web page entitled “New Black Cow film from Jake Scott” on www.blackcow.co.uk featured a young man and woman walking slowly through a meadow and glancing at each other. It then showed a depression in some long grass, with text stating “Black Cow Pure Milk Vodka” superimposed over it. A bottle of the product was then shown sitting on a log in a meadow.
A video advert on a web page on www.blackcow.co.uk entitled “Remember this ad from 1989?” was a parody of a famous ad for milk. It featured two men who had just come in from playing football. One man opened a fridge, which contained two bottles of Black Cow vodka. The other man asked, “You got any lemonade?” and the first man handed him a bottle of lemonade. He then poured a measure of vodka into a tumbler. The other man said, “Milk? Eugh!” The man holding the vodka took a sip. “What? It’s what Ian Rush drinks.” “Ian Rush?” “Yeah, and he said if I don’t drink lots of milk, when I grow up I’ll only be good enough to play for Accrington Stanley.” He took another sip. “Accrington Stanley, who are they?” “Exactly. Now get off!” “Give me some!” “Get off.” On-screen text stated, “There are times only milk will do”. Two empty bottles of Black Cow vodka were shown on the front step of a house. They were removed and replaced by three full bottles, as if being delivered by a milkman. On-screen text stated “Black Cow Pure Milk Vodka”.
Complaint / Decision
A member of the public challenged whether advert (a) was socially irresponsible because it encouraged excessive drinking.
The same complainant challenged whether advert (a) was socially irresponsible because it was likely to appeal to children.
A member of the public challenged whether advert (b) linked alcohol with sexual activity.
The ASA challenged whether advert (c) encouraged consumers to adopt unwise styles of drinking and encouraged excessive drinking.
Turning to the first complaint, the ASA considered that readers would likely understand “So smooth you can drink it until the cows come home …” to refer to prolonged drinking and to imply that the relative “smoothness” of Black Cow vodka meant that consumers could drink more of it. Citing the 40% alcohol by volume of the product, the ASA concluded that the advert was socially irresponsible and breached the Code.
Not upholding the second complaint, the ASA noted that the cartoon was in the style of a black-and-white comic strip, of a type that often featured in newspapers and magazines with a predominantly adult audience. The Week was a current affairs magazine that regularly featured satirical cartoons and the style of the advert was in keeping with this; the style and content of the advert was unlikely to result in it having particular appeal for people under 18 years of age.
Turning to the third, whilst the ASA acknowledged that the advert did not directly depict any sexual activity, the ASA concluded that viewers were likely to understand from the combination of the couple’s body language, the depression in the grass, and the overall tone of the advert, sexual activity had just taken place. Text stating “Black Cow Vodka” and the brand logo were imposed on the image of the crushed grass, and a bottle of vodka was shown in similar surroundings. As the advert strongly implied that sexual activity had taken place and featured an alcoholic product, the ASA concluded that it linked alcohol with sexual activity and therefore breached the Code.
In upholding its own complaint, the ASA stated that whilst the advert was a literal recreation of the original advert and that some viewers would recognise the element of satire, the large quantity of vodka depicted, and the replacement of the empty bottles with full ones, was nonetheless still likely to be understood as implying and encouraging excessive drinking.
The ASA will always take a strict approach in relation to the advertisement of alcoholic products and will uphold adverts where there is any suggestion of excessive drinking or where there is an association between an alcoholic product and seduction, sexual activity or sexual attraction. (see for example the upheld adjudication against Moet Hennessy UK Ltd). Advertisers must ensure that their adverts are socially responsible and must not contain anything that is likely to lead consumers to adopt excessive styles of drinking. Often alcohol adverts attract complaints from action groups and this ruling shows that this is an area where the ASA will add its own complaints. Care always needs to be taken when advertisers seek to include any degree of humour.
8. Appy Food & Drinks Ltd – 8 March 2017
The “About us” section of the advertiser’s website showcasing its range of juice drinks for children, www.appykidsco.com, included the claim “we ONLY make 100% natural, tasty and healthy products”.
Complaint / Decision
The complainant, a food law consultant who understood that some of the advertiser’s products contained calcium lactate and glucose-fructose syrup, challenged whether the claim that all of the advertiser’s products were “100% natural” was misleading and could be substantiated.
In response to the complaint, Appy Food & Drinks Ltd (Appy) stated that:
glucose-fructose syrup was obtained through hydrolysis of the starch contained within corn using an enzyme, a biological catalyst that could be found in the natural world. They therefore believed that the calcium lactate and glucose-fructose syrup used in their products had been obtained using natural processes; and
calcium lactate was a salt obtained through a natural fermentation process with lactic acid bacteria, and occurred naturally in dairy products. It was widely used to make yoghurt and other products. The advertiser provided a general description of how calcium lactate was obtained and a laboratory analysis of different substances contained within the product.
The ASA considered that consumers would likely understand the claim “we ONLY make 100% natural … products” to mean that the ingredients in the advertiser’s products had only undergone limited processing. The ASA referred to the Food Standards Agency’s (FSA) “Criteria for the use of the terms fresh, pure, natural etc. in food labelling”, revised July 2008, which was based on research into consumer understanding of the term “natural”. Highlighting that product was a compound food, rather than a single food, the ASA quoted the guidance: "the term ‘natural’ without qualification should be used ... to describe single foods, of a traditional nature, to which nothing has been added and which have been subjected only to such processing as to render them suitable for human consumption".
The ASA noted that glucose-fructose syrup was produced by the addition of an enzyme isomerase to cornstarch that was a non-traditional enzymatic treatment and therefore fell outside of the definition of “natural” in the FSA guideline.
Moving to the inclusion of calcium lactate, the ASA did not consider the evidence provided constituted sufficient evidence to demonstrate that the manufacturing of the ingredient complied with consumer expectations of foods described as “natural”.
The ASA therefore ruled that the advert was in breach of the Code as the claim was misleading and unsubstantiated.
This ruling demonstrates the strict approach that the ASA takes towards the use of the word ‘natural’ in adverts and FSA guidance should be followed accurately to ensure advertisers avoid challenges. Advertisers should be aware that FSA guidance states that compound foods (i.e. foods made from more than one ingredient) should not themselves be described directly or by implication as ‘natural’, but it is acceptable to describe such foods as ‘made from natural ingredients’ if all the ingredients meet the criteria.
HEALTH & BEAUTY
9. Perfect Smile Surgery Ltd – 8 March 2017
The advertiser’s website included a web page entitled “Research and development”. Text on that page stated “University Research and Testing for safety and performance … Research has confirmed the following key areas … Lower Sensitivity … Research has shown ‘lower sensitivity’ and greater ‘pain reduction’ with the bracket system of Fastbraces Technology … University research in the same journal showed that Fastbraces® Technology presented ‘even less root resorption’ than the traditional systems tested”. A subsequent web page stated “How it works … With safety in mind, Fastbraces Technology was developed to straighten teeth differently - allowing for a fast, safe and affordable solution”.
Complaint / Decision
The complainant, an orthodontist, challenged whether the following claims, in relation to conventional braces, were misleading and could be substantiated:
1. “greater pain reduction”;
2. “less root resorption”; and
In response, the advertiser provided various research papers and studies in relation to the three claims.
The ASA upheld the complaint. It was considered that consumers were likely to understand the claims “greater pain reduction” and “fast” to mean that Fastbraces realigned teeth with less pain and in less time in comparison to traditional braces. Furthermore, although some consumers were unlikely to be particularly familiar with the term “root resorption”, as an unwanted side-effect of some orthodontic treatments, the context of the advert would mean that they would understand it to be a negative side-effect of ‘traditional’ braces which was reduced with Fastbraces.
The ASA reviewed the list of publications, summaries of papers and articles provided by Perfect Smile Surgery but did not consider those papers to be adequate substantiation for the claims made. Furthermore, because Perfect Smile Surgery had not provided the ASA with full articles related to the comparison between Fastbraces and traditional braces in relation to the claims made, the ASA stated that it was not possible to assess whether there was sufficient substantiation. As such, it was concluded the claims were misleading and had not been substantiated.
This ruling is a reminder to advertisers that the ASA will critically assess documentation provided in in response to complaints. Advertisers should ensure that any substantiation comes from credible sources and any documents submitted should not omit any extracts.
10. Selfridges Retail Ltd – 12 April 2017
An advertisement showed a model standing side on in a long blue dress.
Complaint / Decision
The complainant was on the basis that the model looked unhealthily thin and that the advert was socially irresponsible.
In response to the complaint, whilst accepting that the model was thin, the advertiser considered that “unhealthily thin” was a subjective matter. The advert did not focus on the model’s frame, was not positioned in a way intended to exaggerate her slimness and that the loose fit of the dress would distort the actual size of any model regardless of their size.
The ASA considered that the model was not unhealthily thin and was clearly in proportion. Moreover, the advert clearly focussed on the design and fit of the dress, rather than on desirable body images. As such, the complaint was not upheld.
This ruling mirrors the outcome of a recent adjudication involving Hunter Boot Ltd. The proportion of the model and the focus of the advert are key elements that the ASA will assess in relation similar complaints, but there is a very fine line between what we will be considered to be “unhealthily thin” and what is acceptable. Interestingly, it appears from media reports that Selfridges had sought to challenge whether this email was an advertisement, stating that it was a “fashion image sent to selected customers by email”. It is not surprising that such an argument was not accepted by the ASA, but carful targeting of marketing communications could be relevant to the ASA in reaching any conclusion.
11. Coty UK Ltd – 19 April 2017
A TV advert for a mascara included several images of the mascara being applied to eye lashes together with a voice-over saying: “Rimmel introduces Cara Delevingne for new Scandaleyes Reloaded mascara. Dangerously bold lashes. New max-density brush for clump free lashes. Extreme volume … Extreme wear.”
Complaint / Decision
The complaint was on the basis that the advert misleadingly exaggerated the likely effects of the product.
In response to the challenge, the advertiser provided images to show the “before” and “after” to demonstrate the post-production treatment of the images, together with an image of Cara Delevingne’s ‘bare’ lashes. Although lash inserts had been used, the advertiser had sought to rely on the argument that these were used only to fill in gaps and to create a uniform lash line, an argument that has been accepted by the ASA previously in rulings. Further, the advertiser said that in post-production some lashes were re-drawn where they were not visible due to the model’s dark eyeshadow. The advertiser stated that the lashes had not been lengthened or thickened. Clearcast agreed that the advertiser had acted in accordance with industry guidelines.
In upholding the complaint, the ASA acknowledged that in some circumstances the use of lash inserts may be appropriate, such as to fill in natural gaps in the lash line. However, on reviewing the images, the ASA concluded that the lash inserts created a lengthening and volumising effect beyond what could be achieved by the mascara alone, and that the retouching of the images made the lashes appear to have more volume.
It was concluded therefore that the advert conveyed a volumising, lengthening and thickening effect of the product beyond what could be achieved by consumers, and that the advert was therefore misleading and in breach of the code.
This adjudication has had a great deal of coverage in the media and should serve as a reminder to advertisers of the importance of ensuring that any images or physical enhancements used in adverts (in this case lash inserts) do not run the risk of being misleading by portraying an effect beyond what could be achieved by the product alone. The ASA has a particular history of upholding complaints in relation to mascara adverts, even where the adverts include reference to the images being styled with lash inserts.
12. Coral Interactive (Gibraltar) Ltd – 8 March 2017
An advertisement featured two characters who found themselves in three undesirable scenarios – the first being that they were caught in a downpour; the second, that the male character was subject to a body search outside a sports ground; and the third, that they were stuck in the middle of a loud marching brass band. A voice-over followed saying: “Imagine if you could just stop stuff when you wanted to. With Coral’s Cash Out My Bet, you decide when to blow the whistle. Online or on your phone, you can cash out your bet with Coral." On-screen text stated "18+ gambleaware.co.uk. Terms at coral.co.uk".
Complaint / Decision
Two complainants, who were unable to cash out their bets using the Cash Out feature, challenged whether the advert was misleading. The first complainant reported that the Cash Out feature was suspended for long periods of time on two particular dates and the second complainant was unable to cash out on their football bet selection.
In response, the advertiser stated that their intention was to have the Cash Out feature functionality available for as long as possible, however, there were inevitable and uncontrollable circumstances which might prevent the feature from being available, such as a market being suspended because an incident that had occurred in a football match, or if there were technical issues which might prevent the functionality from being available. Similarly, the feature was only available to certain types of bet selection in some sports markets. The advertiser stated that those circumstances were referred to in the terms and conditions for the Cash Out functionality.
Clearcast, referring to the terms and conditions for the Cash Out feature, believed that the term relating to the advertiser’s right to suspend was not a material term, and that the average gambling viewer would understand that this type of feature would have applicable terms and conditions attached and would look on the advertiser’s website for the full terms. Furthermore, Clearcast stated that the advertiser’s terms and conditions, which were available on the advertiser’s website, clearly highlighted that the feature applied to football bets, and on that basis they approved the advert without having that term as an exception in the form of on-screen text.
In upholding the complaint, the ASA considered that consumers would understand that they would be able to use the Cash Out feature at any stage they wished on any bets they placed with the advertiser. The ASA did not consider that the on-screen text “Terms at coral.co.uk” was sufficient to alter the overall impression that consumers would be able to cash out whenever they wished and on any type of bets. The fact that only certain bet selections were eligible for the feature, and that the Cash Out offer on bet selections could be suspended or removed under certain circumstances, was material information that consumers required in order to make an informed decision about placing a bet. The ASA therefore ruled that the advert was misleading and in breach of the Code.
Advertisements must ensure that any promotions or features do not omit any material information; any significant limitations and qualifications should appear on the advert, rather than solely in the terms and conditions.
13. BetVictor Ltd – 15 March 2017
A television advert featuring two men at a horse race where one asked the other, “Why would I ever use this lengthen the odds thing?” The other man responded, “Well I could tell ya but better a professor of probability explains it for me.” The advert then showed another smartly-dressed man in what appeared to be a classroom, who stated, “Probability and form suggest that the favourite will win and because it’s so likely to happen the odds aren’t very exciting. But with BetVictor I can predict how many lengths it’s going to win by and increase the odds and the excitement.” Whilst saying this, the academic character was shown using the app. The advert ended with the on-screen text “Lengthen the odds. Enhance your winnings”.
One complainant challenged whether the claim “Probability and form suggest that the favourite will win and because it’s so likely to happen” was misleading and could be substantiated.
The ASA considered that viewers would understand that the text set the context for the advert’s broader claim, that the “Lengthen the Odds” app could be used by consumers to enhance short odds on a favourite horse by guessing how many lengths it would win by. Furthermore, viewers would interpret the specific text to mean that shorter odds offered on a horse indicated that it was the bookmakers’ and consumers’ favourite as likely to win the race, rather than it being the definite winner. Therefore, because the advert did not imply that a favourite horse would always win a race, the ASA did not consider the advert to be misleading.
Particular care needs to be taken with gambling adverts, which are always to be a focus of scrutiny by the ASA and are the subject of an increasing number of complaints reflecting significant growth in the area. It is therefore essential that advertisers take particular with any claims made in the adverts, that they do not suggest winnings are guaranteed and emphasise that there is an element of chance in relation to every bet placed.
14. Kaspersky Lab UK Ltd – 5 April 2017
A TV advert for an internet security product featured a young woman taking “selfies” with her mobile phone as she unbuttoned her shirt, revealing she was wearing nothing underneath, then showing her saying she only wanted to share this image with her boyfriend. The next scene featured a man and woman in bed looking at something on their laptop, then, after showing a shot of their son next door on his tablet device, saying "We want our son to feel free surfing online, but not access the stuff we like”. In the next scene a woman said, "We want to shop online ... without risking our credit card details." In the final scene, the characters said, "I want to be protected." An end-frame featured a pack shot of the product and text stating "Helping protect your internet experience".
Complaint / Decision
Seventy viewers challenged whether the advert was irresponsible and could cause harm to people under the age of 18, because they believed it normalised the practice of sending explicit images by text and implied that the internet security protection offered by Kaspersky would protect young people from third parties seeing explicit pictures of them.
Despite, the advert having a post-9pm scheduling restriction, the ASA agreed that the advert had the effect of normalising the sending of explicit images by text. The ASA was concerned that this behaviour that was easy to emulate and could have negative consequences for young people because of the sexual content of the material. The ASA, after consulting with NSPCC, also considered that there was a real risk that children and young people would understand that the sending of sexualised images was widespread, and might increase the pressure on young people to engage in it. The ASA therefore concluded that the advert was in breach of the Code.
This ruling demonstrates that advertisers cannot necessarily rely on post 9pm scheduling restrictions to shield them from challenges, and that the ASA always considers carefully the risk of emulation by children and young people.
15. Time Out Digital Ltd – 19 April 2017
An email advertisement included text which stated "An online photography course with Shaw Academy Was £395, now £19".
The complainant challenged whether the savings claim was misleading and could be substantiated, as they believed a similar product was available on the advertiser's website at a lower price.
Complaint / Decision
The advertiser was able to show the product had been indeed advertised at the higher price of £395 and, importantly, provided invoices created both before and after the promotion evidencing sales at the higher price.
The ASA were satisfied with the evidence provided by the advertiser and concluded that the higher price advertised was the genuine price both before and after the price promotion. As such, it was concluded that the advert was not misleading and in breach of the Code.
This ruling demonstrates how important it is for an advertiser to be able to defend a price promotion challenge by substantiating the claimed savings by providing evidence of sales at the higher price, here both before and after the promotional period.
16. Golden Charter Ltd – 26 April 2017
The adjudication concerned two adverts:
a. A TV advert included the voice-over claim, “Call now for an information pack … to find out why more people choose us for funeral plans over the Co-Op.”
b. A paid-for Google ad was headed “Golden Charter Funeral Plans - We’re Bigger Than The Co-op”. A sub-heading stated “We Are Bigger Than Co-op” followed by text which stated “UK's Largest Funeral Plan Provider”.
Complaint / Decision
Co-Operative Group Ltd challenged whether:
the comparative claims as to more people choosing Golden Charter funeral plans over the Co-op, and as that Golden Charter being “Bigger Than The Co-op”, could be substantiated; and whether
sufficient information was provided to verify the comparative claims in both ads.
The advertiser provided sales figures verifying the comparative claim. The advertiser also stated that the hyperlinked text in the Google advert took consumers to a landing page on their website where they could request an information pack and that the ‘About Us’ section of the website provided information to support the comparative claims. The advertiser stated that the comparison in the TV advert was simple and believed it was unnecessary to include clarifications as to how the comparison could be verified.
In relation to the first challenge as to substantiation for the claim, the ASA acknowledged that in the most recent data the advertiser sold approximately 30,000 more funeral plans than Co-Op Funeralcare and therefore considered that the claims were substantiated and not misleading.
In relation to the question of verification, the ASA considered that the TV advert did not provide sufficient information to ensure the details of the comparison could be verified by consumers and competitors. The ASA noted that, given there is very limited space for the Google advert, it may be acceptable if the information enabling the consumer to verify the comparative claim was one click away from the advert. However, in this instance, the relevant information was at the bottom of a long web page under the heading “About Us”. Furthermore, as there was a form at the top of the web page enabling a consumer to request an information pack, consumers were being encouraged to engage with the advertiser before reviewing all the available information in relation to the claim. The ASA therefore concluded that the information that was needed to understand the comparison was not signposted sufficiently clearly and that the advert was therefore in breach of the Code.
This ruling highlights not only the importance of being able to provide full and proper substantiation for any comparative claims, but it also emphasises the need to ensure that the basis for substantiation is easily accessible to consumers, whether on the advert itself, in the case of a TV advert or whether on a landing page in relation for a paid-for internet advert. Nevertheless, it is useful to understand that the ASA accept the impracticality of having verification on an advert itself, for example on the Google advert, and that having verification one click away will be acceptable in these sorts of circumstances, provided the substantiation is clearly set out.