UK: ASA Adjudications Snapshot - November 2010

This article provides a selection of the most interesting ASA adjudications from November and a summary of the key issues considered in the adjudications.

This month the ASA considered a number of offensiveness complaints against adverts. However, although the ASA acknowledged that these might be distasteful to some consumers, it considered the advertiser's intention and, in many cases, the light-hearted overall impression of the advert when making its decisions. A number of the adjudications also address the complex issue of pricing, which has been considered recently by the OFT.

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HEALTH AND BEAUTY

1. Beiersdorf UK Ltd, 10 November 2010 (the relationship between the advertised product and the quoted survey was not sufficiently clear)

2. Coty UK Ltd, 17 November 2010 (the ASA concluded that an advert that might be considered distasteful by some was unlikely to cause widespread offence, but should be targeted appropriately)

3. Coty UK Ltd t/a Rimmel London, 24 November 2010 (advertisers should be clear about the effects obtainable from use of a product alone)

RETAIL

(a price promise alone did not substantiate a "lowest price" claim)

5. Dreams plc, 17 November 2010 (the ASA concluded that a banner advert did not give sufficient information about a time-limited offer or a claim based on future selling prices)

6. Camerabox Ltd, 3 November 2010 (the advertiser did not provide evidence that a product was actually available at the advertised price, as opposed to at a higher price)

7. Waterstones Booksellers Ltd, 3 November 2010 (a retailer cannot rely on consumers understanding industry accepted jargon and must make clear which goods are excluded from a promotion)

LEISURE

10 November 2010 (small print in an advert offering a free product contradicted, rather than clarified, the headline claim)

OTHER

9. Wells & Youngs Brewing Company Ltd, 17 November 2010 (the themes of alcohol and sexual success in an advert were sufficiently distinct and the advert was therefore not irresponsible)

10. Ryanair Ltd, 17 November 2010 (the ASA did not uphold complaints in relation to offensiveness and substantiation, although it did not consider two of the three forms of evidence submitted by the advertiser to be sufficient)

11. American Apparel (UK) Ltd, 24 November 2010 (the ASA considered the stylised nature of the advert and the publication in which it appeared)

12. Nissan Motor (GB) Ltd, 17 November 2010 (the ASA considered the intention of the advert and how likely consumers were to make the association with a potentially offensive message)

13. Invicta Gas Ltd, 24 November 2010 (a light-hearted advert was acceptable to the ASA, notwithstanding that it played on a stereotype relating to women)

14. Asda Financial Services Ltd, 3 November 2010 (a disclaimer should not contradict information given elsewhere in the advert and should not confuse or mislead consumers)

NON-COMMERCIAL

15. ITV Broadcasting Ltd t/a UTV, 10 November 2010 (the ASA weighed up the message of the advert and its target audience with the likelihood of causing distress to children)

HEALTH AND BEAUTY

A cinema advert for face cream showed a woman moisturising her face. The voice-over stated "So it's no surprise that 37% of women feel more attractive now than they did ten years ago". On-screen text carried the same claim. Superimposed text stated "37% of 12,267 women interviewed".

Complaint/Decision

One complainant challenged whether the advert was misleading because it was unclear whether the claim related to the results of a survey of women generally, or a survey of those who had used the face cream.

The ASA upheld the complaint. It considered that the claim would be understood by consumers to mean that 37% of women interviewed felt more attractive because they used the advertised face cream. However, the participants had been asked whether they felt more attractive than ten years earlier in general terms, rather than in relation to the advertised product. The ASA considered that the advert was ambiguous in its presentation of the relationship between the survey and the advertised product. Accordingly it concluded that the advert could be confusing and therefore was misleading.

This is the second month in a row in which a Beiersdorf UK Ltd advert has been considered by the ASA, although in October the relevant complaint was not upheld by the ASA. This decision reminds advertisers of the risk of implied claims and, in particular, that they must take care to present statistics in a clear and understandable manner so as to avoid misleading consumers. In doing so it is important to ensure that the relationship between any survey results or statements in the advert and the claims being made are clear.

2. Coty UK Ltd, 17 November 2010

A television advert for perfume showed the singer Beyoncé lying naked in a room. Further shots in the advert showed the singer wearing a revealing red dress and touching her neck and chest, leaning against a window moving her hand down her neck and breast, and dancing seductively. The advert showed images of her chest, back and thighs.

Complaint/Decision

14 viewers complained about the advert on the basis that it was offensive and/or that it was unsuitable for broadcast when children might be watching.

The ASA noted that there was no explicit sexual content and that Beyoncé was not shown fully naked in the advert. Whilst the ASA noted that the advert was sexually suggestive and therefore might be distasteful to some, it concluded that, in the context of perfume marketing, the advert was not likely to cause serious or widespread offence. In respect of the second challenge, the ASA noted that Clearcast had given the advert an ex-kids restriction, so that it would not be shown in or around children's programmes. However, several of the complainants indicated that their children had seen the advert. The ASA considered that the singer's body movements and the camera's focus on shots of her dress falling away to partially expose her breasts created "a sexually provocative ad". It therefore upheld this complaint and considered that the advert should not have been shown before 7.30 pm.

This adjudication, which also received press coverage including on the BBC website, highlights the importance of appropriate targeting of adverts and the need to ensure that young children are not exposed to unsuitable imagery. The adjudication is also an example, further to the recent decisions in October in relation to MTV Networks Europe t/a Viva and Sony Europe Ltd, of the ASA not upholding an offensiveness complaint, even where it acknowledges that the advert in question might be distasteful to some.

3. Coty UK Ltd t/a Rimmel London, 24 November 2010

This adjudication concerns two magazine adverts and one television advert for a mascara which featured a dial with three settings for users to achieve different eyelash effects. The two magazine adverts showed three images of a model's eye, each showing progressively longer, more prominent eyelashes. In each of the adverts, vertical small print text stated "shot with lash inserts".

The television advert showed close-ups shots of the model's eyes with her eyelashes appearing to increase in length with each look. On screen text stated "shot with lash inserts".

Complaint/Decision

One complainant challenged whether the adverts were misleading because the differing effect in each image was achieved by using an increasing number and length of lash inserts, which exaggerated the effect achievable from use of the mascara alone. The ASA also challenged whether the small print disclaimer in the two magazine adverts was sufficiently clear.

The ASA upheld both of the complaints. Although the advertiser had indicated that lash inserts were used in the shots, it had not made clear to consumers that lash inserts of different lengths had been used. In its response to the ASA, the advertiser had submitted a scientific digital image analysis study showing that increasing the mascara's dial settings could deliver increased eyelash volume. However, this study was only based on five subjects and the ASA expressed concern that the sample was very small. Notwithstanding that the ASA understood the effect of the product would vary depending on the user's eyelashes, it considered that the advertiser had not submitted sufficient evidence to show that the visual representations in the adverts were achievable solely through use of the product.

In respect of the disclaimer, the ASA concluded that it was not prominent enough to capture readers' attention and therefore the information contained in the small print was not sufficiently clear.

This adjudication serves as a reminder to advertisers that they should take care if using effects that are likely to "distort the visual representation of the effect achievable from the use of the product alone". The decision will be particularly relevant to health and beauty companies, who frequently use such products as hair or eyelash extensions in their adverts. Further, advertisers must ensure that any disclaimers are appropriate, and are displayed with sufficient prominence. Mascara adverts have regularly attracted complaints on the basis of misleadingness as a result of the use of lash inserts, where, generally the ASA has accepted adverts provided disclaimers were included to make clear lash inserts had been used. For example, most recently, in May 2010 a similar complaint about a L'Oreal advert was not upheld, as the ASA concluded the advertiser had made sufficiently clear to consumers that lash inserts had been used. In this case, although a disclaimer had been used, the ASA was concerned that consumers would still be misled as to the effect of the mascara. The decision is also interesting as it shows the ASA's concern over a study based on only 5 subjects.

RETAIL

A national press advert featured the headline "DOUBLE DISCOUNT" and stated "Britain's lowest prices... And that's a promise..." The advert included the text "Kids' Beds FROM ONLY £129" and contained small print stating "See full details of the Dreams Price Promise in store..."

Complaint/Decision

Argos challenged whether the claim "Britain's lowest prices... And that's a promise..." was misleading because it sold several products at lower prices. The ASA also challenged whether the advert was misleading on the basis that it used a price promise as the basis for a lowest price claim.

The ASA upheld both challenges. It noted that "Britain's lowest prices... And that's a promise..." related only to specific products sold by the advertiser, i.e. a comparison between specific beds sold by Dreams plc and its competitors. However the ASA considered that consumers would understand the claim to mean that there were no children's beds available in competitors' stores for less than £129. The ASA concluded that the claim was not clear and that it had not seen evidence that the advertiser offered Britain's lowest prices; the ASA therefore considered that the advert was likely to mislead. Further, the ASA did not consider that offering a price promise alone justified a "lowest price" claim. It noted that it had not seen evidence that the advertiser carried out the necessary price monitoring and adjustment to justify such a claim, and accordingly it concluded that the advert was also likely to be misleading in this respect.

This adjudication offers guidance as to relationship between price promises and "lowest price" claims and indicates the type of evidence that the ASA will require in order to reconcile such claims. Interestingly, even though the advertiser promised to refund the difference in price plus £10 to any customer who found the same product (or a product by the same manufacturer with similar specifications) cheaper in a competitor's store, the ASA did not consider that this alone justified a "lowest price" claim.

5. Dreams plc, 17 November 2010

A website promotion contained a rotating banner ad stating "...CELEBRATE & SAVE - 1/2 PRICE OR LESS" and "FINAL DAYS TO SAVE". Text on the website stated "it's the final days to celebrate and save with hundreds of beds half price".

Complaint/Decision

Argos challenged the advert on three grounds. First, it considered that the claim "hundreds of beds half price" was misleading, because approximately 70 beds were available at half price or less. Secondly, Argos challenged the advert on the basis that the savings advertised were based on future selling prices. Finally, Argos considered that the claim "FINAL DAYS TO SAVE" was misleading because no closing date was stated on the banner and it had appeared for more than seven days.

In relation to the first complaint, the ASA noted that a range of 68 beds was available on the advertiser's website. However, it considered that the claim in the advert related to the total number of beds that were available at half price, as opposed to the number of different beds in the advertiser's range. The advertiser had provided evidence that over one thousand beds were in stock at half price and accordingly the ASA did not consider that the advert was misleading on this point.

The ASA did, however, uphold the second and third complaints by Argos. Although the BIS (formerly BERR) Pricing Practices Guide allows savings claims to be made against future prices (sections 1.3.3 and 1.3.4) the ASA considered that the advert did not contain the other information required by consumers when deciding whether to make a purchase (for example how long the offer would be running and when prices would increase). The omission of this information led the ASA to conclude that the advert was misleading. With regard to the third complaint by Argos, the ASA noted that the advertiser had not demonstrated that, for circumstances beyond its reasonable control, the closing date of the offer needed to be extended. Although the closing date appeared in the terms and conditions on the advertiser's website, it did not appear in the main body of the advert; accordingly the ASA considered that consumers had not been given all of the information necessary for them to make a purchasing decision.

This, the second adjudication in respect of this advertiser this month and the fourth in 2010, was published prior to the OFT's study on Advertising of Prices. However, the OFT has indicated that time-limited offers have great potential to mislead consumers; indeed making false statements that products are only available for a limited time is a prohibited "always unfair" practice under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Where time-limited offers are genuine, advertisers must ensure that consumers are given all the information necessary for them to make their purchasing decision.

6. Camerabox Ltd, 3 November 2010

An online advert featured the claim "Olympus E-PL1 Kit £399.99", together with a photograph of the product. The advert featured a click-through labelled "Go".

Complaint/Decision

One complainant challenged whether the advert and the price were misleading because when the click-through was followed, the item was for sale at a higher price only.

The ASA upheld the complaint, as the advertiser did not provide evidence that the product was actually available at the advertised price.

This advert is an example of bait advertising, which is an "always unfair" practice prohibited by the CPRs (regulation 3 and Schedule 1). Bait pricing has recently been examined by the OFT, who expressed concern that this practice has a detrimental effect on consumers. Advertisers must ensure that they have made a reasonable estimate of demand for the advertised product, in accordance with the provisions of section 3 of the Code.

7. Waterstones Booksellers Ltd, 3 November 2010

A point-of-sale promotion in-store stated "... All fiction paperbacks are 3 for 2... All fiction, crime and science fiction paperbacks are now 3 for 2".

Complaint/Decision

The complainant tried to buy children's fiction using the offer, but was told that this was excluded. Accordingly he challenged whether the advert was misleading because it stated that the promotion applied to all fiction.

In its response to the ASA, the advertiser indicated that it was industry practice for bookstores to categorise children's fiction separately from fiction, both in sales figures and in-store. However, the ASA noted that some children's fiction books had "3 for 2" stickers on them. It also considered the increasing adult readership of children's titles such as the Harry Potter series. Accordingly the ASA concluded that consumers might not recognise the distinction between adult's and children's fiction. Further, certain children's books might also fall into the categories listed in the promotion, such as crime. The ASA decided that "all fiction" was misleading, as consumers would expect the offer to apply to children's fiction and it was not clear that this genre was excluded.

Similar to the Waitrose adjudication in October, this decision reminds advertisers that they cannot rely on industry-accepted jargon, which may not be understood by consumers. Advertisers must therefore make clear any exceptions to, or conditions of, promotions, even where these would be obvious to purchasers with knowledge of the relevant industry. Although not specifically the subject of this decision, the OFT, in its recent review of pricing practices, has given guidance on the use of volume offers, and ways in which retailers can minimise their risk of facing enforcement action.

LEISURE

A leaflet stated "£40 6 weeks membership starts 1st July". Text underneath stated "Plus receive a DW SPORTS Gift Pack (Worth £40)*". The asterisk led to text at the foot of the leaflet which read "Gift packs are for any member converting on day one of Get active to a full membership..."

Complaint/Decision

One complainant challenged whether the headline claim implied that the gift pack offer was included in the six-week membership offer.

The ASA considered that, although the conditions stated that the gift pack was available when membership was converted from the Get Active offer to full membership, the wording "Plus receive a DW SPORTS Gift Pack (Worth £40)*" implied that the gift pack was offered in addition to the six-week membership offer. As consumers were required to sign up to full membership to receive the gift pack (meaning they were no longer eligible for the six-week membership offer), the ASA considered that the small print contradicted, rather than clarified, the main claim in the advert and was misleading; the complaint was upheld.

This advert serves as a reminder that advertisers must take care not to use small print in a contradictory way and should ensure that any disclaimers clarify the claims made in the main advert, rather than confuse consumers. The use of "free" claims has been examined by the OFT in their recent study, which offers guidance to advertisers about when the OFT is less likely to take enforcement action.

OTHER

A cinema ad for beer showed a man getting off a boat on an island and meeting two women. The three people travelled round the island together and appeared very close; the man seemed to have a romantic relationship with one of the women. In several scenes the three people drank beer together and at the end of the advert the man got back on the boat with a bottle of beer in his hand. A close up of a bottle of beer was featured, with text stating "Good times never end if there's something to remind you of them".

Complaint/Decision

The ASA received two complaints that the advert linked alcohol to sexual success.

The ASA did not uphold the complaints. It noted that the advert was lengthy, with only some of the scenes depicting alcohol consumption. The ASA considered that alcohol tended to be featured in group scenes (such as a beach party); however, alcohol was not depicted as essential to the success of any occasion. In the romantic scenes little or no alcohol was featured. In avoiding showing alcohol or consumption of beer in the romantic scenes, the ASA considered that advert avoided directly linking alcohol and sexual success. The ASA also noted the tone of the advert and considered that the beer brand would be associated with a pleasant and memorable holiday atmosphere.

This decision is interesting because the ASA considered that the themes of alcohol and sexual success were sufficiently distinct to avoid a breach of the Code. Although there were romantic scenes and scenes featuring nudity, the ASA considered these to be "in keeping with acceptable standard and not so strong as to directly link alcohol consumption with sexual success" and, by not featuring alcohol consumption in the romantic scenes, the advertiser had avoided creating a direct link between alcohol and sexual success. Alcohol companies, who often use social scenes in their adverts, should ensure that alcohol is portrayed as a separate theme to any sexual or social success depicted in the advert. Nonetheless, this is an area that attracts complaints and advertisers of alcohol products must remain cautious, even in light of this adjudication.

10. Ryanair Ltd, 17 November 2010

A national press advert was headlined "HERE'S EASYJET'S NEW HEAD OF PUNCTUALITY" and featured a picture of Zimbabwean President Robert Mugabe. The advert included three press cuttings, two of which stated "EasyJet less punctual than Air Zimbabwe'". The advert also contained text stating "...EASYJET CAN'T MATCH OUR PRICES, OR OUR PUNCTUALITY EITHER!"

Complaint/Decision

The advert attracted complaints from 20 members of the public, who believed that the image of Robert Mugabe in the advert was offensive and trivialised the Zimbabwean political situation. One complainant also objected to the claim "EASYJET CAN'T MATCH OUR PRICES, OR OUR PUNCTUALITY EITHER" because he understood that the comparison data in the advert supporting this only related to one study at one airport.

In respect of the first challenge, the ASA noted that the advert did not actually refer to the Zimbabwean political situation. The ASA considered that the advert referred to Air Zimbabwe and Robert Mugabe was a recognisable Zimbabwean. It concluded that, although the use of the image might be seen as tasteless by some, the advert was unlikely to cause serious or widespread offence; the complaints were not upheld.

In respect of the second challenge, the ASA noted that the advert referred to a comparison based on departures at Gatwick Airport in June 2010 and showed that more of Ryanair's flights departed on time than easyJet's. Nevertheless, the Ryanair claim "EASYJET CAN'T MATCH OUR...PUNCTUALITY..." was not qualified and might be interpreted as an absolute claim. The ASA did not consider that the data from Gatwick in June 2010 was sufficient to substantiate this. In its response to the ASA, Ryanair also provided evidence of weekly data captured since 2006 comparing Ryanair and easyJet's punctuality. Although this showed that Ryanair was more punctual than easyJet, the study did not define "punctuality", and data for easyJet had not been collected since April 2009. The ASA therefore did not consider that this was meaningful data to substantiate the claim. However, Ryanair also submitted a document, sourced from the UK Civil Aviation Authority, which compared various airlines' punctuality at UK reporting airlines each week since 2007. This showed that Ryanair had a consistently higher proportion of punctual flights than easyJet since 2007. The ASA noted that this evidence was based on "recent information from an industry recognised source" and related to both arrivals and departures from UK reporting airports. Accordingly this evidence was sufficient to substantiate the claim and the ASA found that the advert was not misleading in this respect.

This decision is another example of the ASA accepting an advert that might be regarded as tasteless. Further, it is a useful reminder that advertisers should provide as much "meaningful" evidence as possible to substantiate their claims. In this instance, it appeared that Ryanair were originally basing their claim on the June 2010 Gatwick data. It is likely that, had the advertiser not supplied the third study, the second complaint would have been upheld. Evidence should be from a reliable source, up-to-date and contain sufficient definitions to ensure that it actually substantiates the claim being made. This is the latest in a series of complaints about Ryanair; the SA upheld a complaint about a Ryanair advert as recently as October.

11. American Apparel (UK) Ltd, 24 November 2010

An advert in Time Out Magazine showed a girl wearing white underwear and over-the-knee grey socks. She was posing leaning against a wall standing on her tiptoes with her feet crossed and her back arched, with her head facing the camera. The accompanying text read "Lingerie".

Complaint/Decision

One complainant considered that the model looked like a child and therefore objected that the advert was offensive and irresponsible because it featured a young girl wearing underwear and standing in a provocative pose.

The ASA did not uphold this complaint and acknowledged that the model was over the age of 18 when the photograph was taken. The ASA considered that the pose was representative of the "stylised postures familiar within the fashion industry". It therefore concluded that the pose was not unduly provocative and that the image was unlikely to cause serious or widespread readers of the publication.

This adjudication is interesting because the ASA specifically considered and referred to the publication in which the advert appeared, as well as the stylised nature of adverts of this type when reaching its decision.

12. Nissan Motor (GB) Ltd, 17 November 2010

This adjudication concerns two adverts. First, a poster advert for a car featured the headline text "DEUTSCHLAND DEUTSCHLAND ÜBER RATED" and contained text comparing the acceleration times for models of Audi, BMW, Porsche and Nissan cars. An internet advert showed a car speeding across the screen and featured a similar comparison of acceleration times and the same headline text.

Complaint/Decision

The adverts attracted 32 complaints. Most of the complainants objected that the adverts were offensive because the headline text was a play on words on a verse of the German National Anthem, which was associated with Nazis. Eight complainants also considered that the poster advert was racist towards Germans. Further, the ASA challenged the advert because it considered that acceleration claims were the predominant message of the advert and that the moving image in the second advert implied excessive speed.

The ASA noted that the advert intended to challenge the assumption that German sports cars outclassed other manufacturer's cars and that therefore German cars were "over-rated". Although the ASA understood that the relevant line from the German National Anthem had been adopted by the Nazis, it considered that in the context of the advert most consumers would not make this association and would interpret the headline text as per the intention of the advertiser. The ASA did acknowledge that some people would find the use of the phrase distasteful, but concluded that the advert in its entirety was unlikely to be interpreted as referring to Nazi Germany. Accordingly the ASA did not uphold the offensiveness complaints. It also did not consider that the second advert was racist towards German people, and concluded that the most consumers would interpret the headline text as relating to German sports cars, not to the German nation as a whole.

Both of the ASA's own challenges were upheld. The ASA considered that the acceleration claim was the "predominant message" of the advert and accordingly that the advert breached the Motoring sections of the CAP Code. The ASA noted that the internet advert was stylised, but considered that that the image of a car moving across the screen leaving a trail of red light behind it, together with the featured acceleration speeds, gave the impression of excessive speed and therefore was a breach of the Code.

This decision is interesting because the ASA considered the intention of the advert and the potentially offensive message, but also looked at how likely consumers were to make the offensive association. The light-hearted nature of the advert was also taken into account.

13. Invicta Gas Ltd, 24 November 2010

A regional press advert stated "SCRAP YOUR OLD BOILER NOW! GET £300 FOR YOUR OLD BOILER AT INVICA GAS" and featured a picture of an elderly, unsmiling woman.

Complaint/Decision

Three people complained that the advert was offensive because the image of the woman with the reference to an "old boiler" was ageist, sexist and demeaning to women.

The ASA did not uphold the complaint. It acknowledged that the advert relied on an "out-dated" stereotype of older women. Although some might find the advert distasteful, the ASA considered that the advert was likely to be seen as "a light-hearted use of an archaic stereotype".

This adjudication follows the view taken by the ASA in respect of the Nissan advert above. Although it appears that the ASA will give consideration to the light-hearted intentions of advertisers, offensiveness in advertising is still an area attracting large numbers of complaints and advertisers should take care when playing on stereo-types.

14. Asda Financial Services Ltd, 3 November 2010

A TV advert featured a woman talking about Asda Over 50's Life Cover. She said "It costs from £5 a month.... And because it's Asda I can always make sure that I'd never pay more for cover than it'll pay out... So I'll never be out of pocket". On-screen text stated "Capped premiums from £14.59. Unless you cap your premiums you must keep paying for life, and may pay more than you get out..."

Complaint/Decision

Three complainants challenged whether the advert misleadingly implied that customers paying the £5 monthly premium would never pay more than the policy paid out. However, as shown by the on-screen text, the capped premium amount was actually £14.59.

The ASA upheld this complaint; although the on-screen text appeared before and during the voice-over statement, the ASA considered that most consumers would interpret the statement "I can always make sure that I'd never pay more for cover than it'll pay out" in light of the previous reference to the £5 premium. The ASA noted that the woman's statement was a continuous monologue referring both to the £5 premium, and to her not paying in more than the policy would pay out. The ASA also considered that "And because it's Asda" would be interpreted as meaning that the woman was reassured because the insurance was provided by Asda, not because of a particular feature of a selected product. The ASA concluded that the disclaimer information in the on-screen text contradicted, rather than clarified the headline claim.

This decision, like that in relation to Dave Whelan Sports Ltd above [INSERT LINK TO DAVE WHELAN SECTION OF TEXT AT NUMBER 8 ABOVE], highlights that advertisers must word disclaimers and small print carefully, so as to avoid confusing consumers or contradicting information given elsewhere in the advert.

NON-COMMERCIAL

15. ITV Broadcasting Ltd t/a UTV, 10 November 2010

A Department of the Environment TV advert showed a young boy laughing and playing in a garden. The next scene showed a young man celebrating after scoring a goal during a football match and then having a pint of beer with friends in a bar. The same man was then shown driving home. The man then took his eyes off the road briefly. The car's tyre clipped the kerb, causing the car to spin across the road, hit an oncoming car and then flip over a fence into the young boy's garden, crushing the child. The boy's sister, also in the garden, was shown screaming. The advert then showed the driver climbing from the car, with blood on his face, and the young boy's father, picking up his son and sobbing. On-screen text and a voice-over stated "NEVER EVER DRINK & DRIVE. Could YOU live with the shame? ...". The advert carried a post-9pm Clearcast scheduling restriction.

Complaint/Decision

One viewer saw the advert at 8.26pm during ITV's coverage of a World Cup game between Germany and Australia. The viewed complained that the advert was distressing (especially for children), and was inappropriately scheduled.

In its response to the ASA, ITV pointed out that UTV has a separate Ofcom Licence from ITV and therefore is able to operate discretionary judgment as to advertising, notwithstanding the Clearcast restriction (of which it had been made aware).

The ASA acknowledged that the advert was "hard-hitting and disturbing in its depiction of serious injury or death to a child and a father's depiction of consequent grief", and noted that it was not until the end of the advert that the road safety message became apparent. Nevertheless, the ASA considered that adult viewers (at whom the advert was targeted) would interpret the scenes as important in addressing the issue of drink-driving; accordingly the ASA concluded that the advert's intention to deter drink-drivers, which could save lives, justified the shocking nature of the scenes. Although the ASA noted that the advert would be distressing for anyone who had directly been affected by drink-driving, it did not consider that the advert was likely to cause widespread distress to adult viewers.

The ASA did, however, consider that children were likely to be distressed by the advert and its depiction of a distressed young girl and father. UTV indicated that showing the advert during a World Cup game meant that it was likely to be seen by more adults at risk of drink-driving. The ASA noted that according to viewing figures, a small proportion of children watched the World Cup game in question, and therefore the number of children potentially distressed by the advert was low (indeed they had received no complaints of children actually having been distressed by it). The ASA concluded that the advert had not breached the BCAP Code, because the scheduling had allowed the advert to reach its target audience while avoiding children to "a reasonable extent".

This is an interesting decision, because, notwithstanding a scheduling restriction to the contrary, a broadcaster was allowed to show an advert when children might be watching television. The ASA considered that the serious, non-commercial message of the advert justified the risk of causing distress.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 23/12/2010.