This article provides a selection of the most interesting ASA adjudications from August and a summary of the key issues considered in those adjudications.
This month the ASA considered complaints about time periods for promotions, underage appeal and the promotion of alcohol by under 25 year olds. In addition, the ASA dealt with geographical origin and absolute claims. There was also a particular focus on pricing issues, a subject which was addressed in a number of the adjudications.
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ADJUDICATIONS
FOOD AND DRINK
1. Cell Drinks, 3 August 2011 (the ASA clamps
down on under 25 year olds promoting alcohol, despite the fact that
they were not shown consuming the products)
2. Heineken UK Limited, 31 August 2011 (The ASA
considers geographical origin claims)
3. Birds Eye Limited, 17 August 2011 (Claims about
the vitamin content of frozen vegetables are considered to
constitute nutrition claims, although it is clear that there is no
implication that the freezing process adds additional vitamins to
the food)
COMPUTERS AND TELECOMS
4. Mazuma Mobile Ltd, 31 August 2011 (considers
how adverts can appeal to younger people and the difficulties of
verifying parental consent)
5. Motorola Mobility UK Limited, 24 August 2011
(considers the substantiation requirements for "number
one" claims)
HOUSEHOLD
6. Marcandi Limited, 10 August 2011 (considers
whether an online auction complies with the provisions of the
Gambling Act 2005 and how savings claims should be demonstrated to
ensure that they include all costs to the purchaser)
7. HPAS Ltd, 24 August 2011 (claims to an offer
only being valid for a week were acceptable in circumstances where
there was a clear two week period in between the offers)
8. B&Q Ltd, 31 August 2011 (Considers the
circumstances in which it is acceptable to not specify an end date
for a promotion)
ENERGY
9. Npower Limited, 24 August 2011 (any
important qualifications to offers or eligibility requirements
needed in order to take them up should be clearly stated)
10. Danfoss Heat Pumps UK Ltd, 31 August 2011
(absolute claims require advertisers to demonstrate that the
benefits claimed apply in all circumstances)
MOTORING
11. drive the deal.com, 10 August 2011 (Advertisers are entitled to refer to current events in advertising materials, provided that they do not exploit such events)
OTHER
12. Commonwealth College of Business Management London
Limited, 17 August 2011 (This decision shows how images of
landmarks can be persuasive as to the overall impression conveyed
by the advert in terms of location of the service)
13. Pricing Practices (various)
(a look at a number of adjudications from this month concerning
pricing practices).
FOOD AND DRINK
1. Cell Drinks, 3 August 2011
Three advertisements appeared on YouTube to promote an alcoholic
drink, Cell Drink. The adverts centred on demonstrating the Cell
Drink's "zero spillage" feature. The first advert
included images of Tim Shieff, a champion free-runner, free-running
and jumping over buildings and performing back flips without
spilling the drink. The other two adverts featured a man dressed as
a rocker, dancing and spilling his drink and a woman dressed up as
a raver, dancing and spilling her drink.
Complaint / Decision
Three complainants challenged the first advert and the advert
featuring the woman on the basis that the people featured appeared
to be under 25 years old (Tim Shieff was 23 years old). The first
advert was also challenged on the basis that it was irresponsible
because it associated alcohol with bravado and dangerous behaviour
and because it implied that the product could enhance physical
capabilities. All three adverts were challenged on the basis that
they appealed to under 18s.
All complaints were upheld by the ASA, except for the complaint
that the advert implied that the product would enhance physical
capabilities.
Although it was acknowledged that Tim Shieff was only 23 years old,
Cell Drinks relied upon the Portman Group Guidelines which suggest
that it is acceptable to show someone over 18, but under 25, in a
promotion for alcohol, provided that they are not shown in a
context associated with drinking. They pointed out that there was
no indication that Tim had been drinking, or was intending to drink
alcohol, particularly because he was not shown in an environment
where alcohol was being consumed. The ASA acknowledged that Tim was
not shown to be drinking in the advert, however, they concluded
that his free-running abilities and athletic skill would be
"heavily associated" with the product and its promotion.
Combined with the significant role that he played in the advert and
the fact that he was only 23, the ASA found the advert in breach of
the Code.
The ASA took a similar approach in upholding the complaint that the
advert was irresponsible, because although Tim was not drinking
alcohol, they found that the advert made a strong association
between the alcoholic drink and the extreme and daring activities
portrayed.
In relation to the advert featuring the woman, since the woman, who
played a significant role in the advert where her actions were
heavily associated with drinking alcohol, and since she was only 24
when the advert was filmed, the ASA concluded that this advert also
breached the Code. This was despite the arguments put forward by
Cell Drink that the woman was not shown to be drinking alcohol and
was dressed in late '80's / early '90's attire,
designed to appeal to an older audience.
The ASA found that all three adverts appealed to under 18s. They
considered that, despite the fact that there were some restrictions
in place to prevent young people accessing the advert, the
free-running and hip hop soundtrack and the concept that the drink
was "made for the dance floor" would appeal particularly
to young people. In relation to the other two adverts, the ASA
considered that the images of comical stereotypes and the
"tongue-in-cheek" approach would also have particular
appeal to young people.
In contrast, the ASA did not uphold the complaint that the advert
misleadingly implied that the product could enhance physical
capabilities. The ASA considered that viewers would not assume that
Tim Sheiff's ability to free-run was the result of consuming a
Cell Drink.
This decision demonstrates the ASA's strict approach towards
adverts for alcoholic products that feature individuals who are
under 25, particularly where they play a significant role in the
advert and if the adverts show characters engaging in activities
that may particularly appeal to younger viewers. The ASA took a
stricter approach than that applied by the Portland Group in these
circumstances, where, although the actors in the advert were not
shown to be consuming the drink, the context of the advert was
found to create a strong association between the characters and the
alcohol.
This decision is also not surprising in the context of a previous
adjudication relating to
Miller Genuine Draft beer where the ASA considered the antics
of a roller skater, who performed a series of tricks while roller
skating, was likely to appeal strongly to under 18's.
2. Heineken UK Limited, 31 August 2011
This decision concerned a national press advert featuring a picture
of a glass of Kronenbourg 1664 with text stating "The French
are famous for many things, hurrying isn't one of them. So
naturally a beer from Strasbourg, Eastern France is made rather
slowly. From a patient approach to hop growing, to the delicate
handling of the drying procedure, not one part of the brewing
process is rushed...."
Complaint / Decision
A complainant challenged whether the advert was misleading
because it implied that Kronenbourg 1664 is brewed in France,
whereas it is actually brewed in the UK.
The complaint was upheld.
Heineken argued that the advert was merely highlighting the
heritage of the beer, which was originally brewed in France and had
the taste and strength of a lager from continental Europe. They
also pointed out that the product was made using a variety of hops
which were imported from, and unique to, the Strasbourg region.
Heineken argued that consumers would distinguish between the
provenance of the product and the location in which it was brewed.
However, the ASA considered that the text of the advert implied
that the product was brewed in France. The advert was therefore
misleading.
Although in many ways this is not a surprising decision, it is
somewhat difficult to reconcile with another decision this month
concerning a TV advert for a car (MG Motor UK
Limited, 31 August 2011) which stated that the car was
"Designed and engineered in Britain". In that complaint
the ASA concluded that the advert was not misleading, despite the
fact that the majority of the manufacturing took place in China and
only the final assembly was performed in the UK. It was considered
significant that the cars were manufactured to the design
specifications of the UK team. The ASA considered that the average
consumer would not infer from the words "engineered" and
"designed" that the car was manufactured in Britain.
3. Birds Eye Limited, 17 August 2011
This decision concerned a national press advert for Birds Eye
Frozen vegetables which stated "30% more vitamins than fresh
vegetables*" and in smaller vertical text, "*D J Favell
Study 1998 Ref Vit C IFR Extra 2010."
Complaint / Decision
Five complainants challenged whether the claim "30% more
vitamins than fresh vegetables" (1) was misleading and could
be substantiated, and four challenged whether (2) it misleadingly
implied that the freezing process boosted the amount of vitamins
present in the vegetables.
The first complaint was upheld. Birds Eye provided details of two
studies to substantiate the claim and said that a constant message
in their advertising for many years was that the freezing process
stopped the deterioration of food and worked on the premise that
most consumers would understand that all vegetables started to
deteriorate from the moment they were harvested.
The ASA was concerned that vitamin C levels had been the sole
marker used in the study, despite the fact that the ASA understood
that it was an appropriate marker. They considered that the study
did not take into account the other vitamins that would be present
in the vegetables and the adverts did not make sufficiently clear
that vitamin C was the sole basis for the claim, which they thought
was likely to be interpreted as referring to all vitamins. The ASA
considered that, without clarification, the advert implied that
fresh vegetables always had at least 30% less vitamins than the
frozen equivalent, regardless of how they were stored or when they
were consumed. Therefore it was considered misleading.
In addition, the ASA considered that the claim would be interpreted
by consumers to mean that frozen vegetables were beneficial because
of the amount of vitamins they contained compared to fresh
vegetables. As a result, they considered this to be a comparative
nutrition claim that was not permitted under the European
regulation on Nutrition and Health Claims (EC regulation 1924/2006)
because the comparison did not compare food in the same category.
It was also not a permitted nutrition claim because fresh
vegetables had a composition which allowed them to bear a
nutritional claim, in particular that they were a source of vitamin
C.
In contrast, the second complaint was not upheld. The ASA
considered that the text featured in one of the adverts: "Our
vegetables are picked and frozen within hours so they retain more
vitamins than fresh vegetables" made clear that the higher
vitamin content in the frozen vegetables was due to the retention
rather than the addition of vitamins during the freezing process.
Although this was not explicit in the other advert, the ASA
considered that most consumers would understand that the freezing
process did not add vitamins, but rather prevented their
deterioration.
This decision, which has interpreted the claim as a nutritional
claim, rather than a processing claim, seems somewhat harsh,
particularly with respect to the restriction on comparing fresh
with frozen food, in circumstances where Birds Eye has recently
stepped up its campaigns to promote frozen vegetables as a cheaper
and more available way for consumers to eat their five-a-day. Birds
Eye had identified in the advert the study which supported the
claim and also referenced the Birds Eye website which contained the
information about the study. Birds Eye have, not surprisingly,
challenged the sense in the findings. Indeed, Birds Eye CEO Martin
Glenn has branded the ruling "ridiculous". Birds Eye have
also vowed to find "new and legally robust ways" to
promote the health qualities of frozen vegetables.
COMPUTERS AND TELECOMS
4. Mazuma Mobile Ltd, 31 August 2011
This adjudication concerned a TV advert for a mobile phone
recycling company. The advert featured a teenage girl and boy
dancing to a jingle about trading in mobile phones for cash. The
actors were seen holding a laptop and a fan-shaped wad of £5
notes. Text on screen stated "We'll pay up to
£150.00" "payment by cheque or bank
transfer".
Complaint / Decision
Thirteen complainants challenged whether the advert was
irresponsible because it could mislead children into thinking they
could trade in phones for cash, whereas, in fact, they needed
parental consent to do so.
The complaint was upheld.
Mazuma Mobile Ltd thought that the advert made sufficiently clear
that it was aimed at adults because of the look and feel of the
advert, the actors featured were, in fact, both over 18 years old,
the advert indicated that a bank account was required to use the
service and under 18's could only use the service if they had
parental consent.
However, the ASA considered that despite their actual age, the
actors used were styled to make them look younger. In addition, the
music was catchy and repetitive and the actors were dancing in an
immature fashion, hence it was likely to have a strong appeal to
children. The advert had also been shown on a children's
channel at a time when a large number of children would have been
watching. Although the ASA considered that the advert might have a
stronger appeal to adults, these factors meant that it still had a
strong appeal to children.
The ASA also considered that because the advert showed the actors
holding wads of cash, and there was actually no firm requirement
for the respondent to hold a bank account in order to use the
service (as the user could opt for payment in Argos vouchers
instead), it was not clear that the service was aimed at
adults.
In addition, given that only 10% of customers received £150
or more, the ASA considered that the advert exaggerated the
benefits of the service and as such children would be given
unrealistic expectations about how much cash they could get for
their old mobile phones.
The decision also highlighted a common problem with online services
requiring parental consent. Although this was a requirement of
using the service, Mazuma was unable to verify that genuine consent
had been obtained. The ASA found the offer by Mazuma to include
on-screen text stating that parental or guardian consent was
required for under-18s would be insufficient to alter the
overwhelming impression given by the advert, which was that
children could readily use the service. As a result, the ASA
concluded that the advert was irresponsible.
Marketers should be aware that the mere fact of using actors of the
relevant age is not necessarily sufficient to prevent their being
any appeal to children if the overall image portrayed makes the
actors seem younger.
5. Motorola Mobility UK Limited, 24 August
2011
A television advert for the Motorola Atrix mobile phone, stated
"The world's most powerful smartphone".
Complaint / Decision
Two complainants challenged whether this claim was
misleading because they believed that the Samsung Galaxy S Iii9100
had a more powerful processor.
The complaint was upheld.
In Motorola's response, they stated that when the phone was
docked into a unique HD dock or standalone LapdockTM, it was
capable of powering a full desktop browser, including support for
cloud-based computing and virtual Windows desktop via a Citrix
account.
The ASA took the view that viewers would understand the claim,
"most powerful smartphone" to mean that the phone, in
isolation, was the most powerful smartphone. The fact that, as
demonstrated by Motorola, it had advanced features when used with
other accessories was not sufficient.
Motorola had demonstrated that their phone had various features
including computer-like speed, the web-top solution, 1GB of RAM and
battery life. The ASA considered that, although these features
described the performance and capability of the product, they did
not necessarily make it "powerful". Although, the ASA
acknowledged that the phone had a more powerful battery than all
known competitors, the ASA considered that consumers would
understand "powerful" in the context of a smartphone to
mean that the product had, among other features, a faster processor
than any other smartphone. Since the Motorola Atrix did not have
the fastest processor, the advert was found to be misleading.
This adjudication highlights the risks associated with making
"number one" claims, without having robust comparative
evidence to support them.
HOUSEHOLD
6. Marcandi Limited, 10 August 2011
This decision concerns adverts for online auction site, Madbid.com,
which made various statements as to the savings that could be made,
in particular "an average of 80% off high street prices of
RRPs." Examples of products that could be bid for and the
savings made were shown, for example a picture of a MacBook Air was
shown with text "Sold £47" and in crossed out text
"RRP £1,149". The press advert also made the claim
that Mad-bid was "not a game of chance but one of skill".
The TV adverts included on-screen text "Cost of bids
excluded."
Complaint / Decision
One complainant challenged whether the 80% average savings
claim could be substantiated and whether the claim that the game
was a game of skill was misleading. In addition complainants
challenged whether the prices shown included the cost of the
winner's bids and whether the adverts made clear that
Madbid.com was a paid for auction site with a cost associated with
each bid.
All of the complaints were upheld.
The ASA considered that consumers would interpret the 80% average
savings claim as applying to all Madbid auctions. They were not
persuaded by the limited evidence provided by Madbid to
substantiate this, in particular there were only a few examples
provided and the RRPs quoted were only typed, they did not
demonstrate where the products were sold at the listed RRPs. In
addition, many of the entries related to Madbid credits which were
only sold by Madbid and could only be used to make further bids on
the site. Therefore, the ASA consider that the savings claims did
not show how customers could achieve a comparative saving on
products that were generally available. The ASA considered that
items that were only sold by Madbid could not be used as the basis
for a savings claim in an advert referring to savings on RRPs and
high street prices.
In relation to the question of whether use of the site involved
sufficient skill so as not to fall foul of the unlawful lottery
provisions in the Gambling Act 2005 (by being based solely on
chance), the ASA considered that the auctions did not appear to be
wholly dependent on chance. However, the ASA also noted that the
winning scenarios in the Madbid adverts involved disproportionately
low bids and that, in these circumstances, the auction could also
depend on other factors such as the number of participants and
their spending behaviour. Therefore, the ASA considered that the
claim that the game relied on skill not chance was
misleading.
In relation to the third complaint, Madbid said that they had
changed the prices quoted to include the cost of the winning bids.
However, in relation to two of the adverts, the ASA considered that
the prices quoted did not represent the full price paid by the
winners, therefore they were misleading.
In relation to the fourth complaint, the ASA accepted that it was
clear that the advert was for an auction site and that viewers were
likely to understand the nature of the service. However, they found
that the text "cost of bids excluded" was not sufficient
to make clear that there was a cost associated with each bid. The
ASA considered that the cost associated with each bid was a
significant condition and therefore it should have been made
clearer in the adverts.
This decision makes clear the fine line between permitted
competitions and unlawful lotteries. In addition, it serves as a
reminder that RRPs, or similar, should not be used as the basis of
a comparison which is not genuine, or if it differs significantly
from the price at which the product is generally sold. Robust
evidence is needed to substantiate the basis of RRP figures on
which comparison or savings claims are based. The decision also
makes clear that all costs involved in purchasing a product should
be clearly set out.
7. HPAS Ltd t/a Safestyle UK, 24 August 2011
This decision concerned a radio advert for a promotion on double
glazing included a voice-over stating, "but it's only this
week... This week only, hurry, hurry..."
Complaint / Decision
One listener complained that the advert was misleading because it
implied the offer was only available for one week, whereas he
understood that the advert had appeared for longer than a
week.
The complaint not upheld. The ASA considered that the clear two
week period in between the offers, which were both limited to a
week only meant that the advert was not misleading because the
offers were both available for "one week only" at the
time when the advert appeared.
This decision gives an indication of how advertisers may be able to
run consecutive time-limited offers, provided there is a sufficient
break period between them. Nevertheless, special care should be
taken to ensure that any such practices also comply with the
Consumer Protection from Unfair Trading Regulations 2008 and do not
constitute misleading pricing practices, see the study issued last year by the OFT.
8. B&Q Ltd, 31 August 2011
This decision concerned a brochure for a kitchen sales promotion
stating "kitchens Price Guide Valid from Tuesday 1st
March...", with references to 25% off.
Complaint / Decision
A complainant challenged the advert was misleading because
it did not state an end date for the promotion.
The complaint was upheld.
The CAP Code permits a promotion to be offered without including a
closing date, however, the ASA noted that this was subject to the
proviso that consumers are not disadvantaged as a result. Also,
although the promotion lasted for five weeks, at the time the
advert aired B&Q did not know how long it would run for.
The ASA considered the closing date to be "material
information" that was likely to affect a consumer's
decision on whether to make a purchase from B&Q. This is in
line with the provisions of the Consumer Protection from Unfair
Trading Regulations 2008, where, in relation to misleading acts or
omissions, it is necessary to consider whether the omission is such
that it causes, or is likely to cause, the average consumer to take
a transactional decision he would not have taken otherwise. The ASA
considered that the reference to "see online or ask in-store
for more details" was likely to be seen as referring to
further details about the promotion and was not sufficiently clear
in alerting consumers to the fact that they would need to check to
find out about a closing date. The omitted material in this
instance disadvantaged the consumers and was therefore
misleading.
The ASA noted that a closing date for sales promotions should be
included when known and when not known, prominent qualifying text
that directed consumers how to find out more information about the
closing date should be provided.
Similarly, in the adjudication Moresand Ltd t/a Crystal
Travel (31 August 2011) a promotion for flights which was
stated as being "for limited period", but provided no end
date for the promotion, was considered by the ASA to be misleading
because the travel period during which flights must be taken was a
significant factor which would influence a consumer's decision
about whether to purchase the flights.
In addition, another complaint, concerning an advert for discounted
Saga Holidays (Acromas Holidays Ltd t/a Saga
Holidays, 31 August 2011) was upheld due to lack of
availability. Despite the disclaimers ("Current fares shown
are the lowest available at the time of going to print. Fares are
subject to availability and change"), the ASA considered, in
particular the reference to "Current fares", was likely
to be interpreted as suggesting that the cited price, which was
discounted by the maximum 35%, was generally available. The ASA
stated that an approach that implied the maximum discounted price
was the currently available price should not be used for
advertising material that had a long shelf life or where it was the
case that the price was not "current" by the time the
brochure was received by many consumers.
ENERGY
9. Npower Limited, 24 August 2011
An email and a website for the energy provider, Npower Limited,
stated "... if you don't already pay for your gas and
electricity by Direct debit you could be missing out on a saving of
up to £100 per year" with further text stating
"Dual Fuel Direct Debit Discount Dual Fuel
£100".
Complaint / Decision
The complainant challenged whether the claims were
misleading because the advert did not make clear that the dual fuel
discount was not available to customers on certain tariffs.
The complaint was upheld.
Npower stated that customers on the particular tariff referenced in
the complaint were able to take advantage of the discount. However,
those customers would lose their equivalent top up discount when
they switched to direct debit so they not see an additional
benefit. The ASA considered that this important qualification to
the discount offered should have been made clear in the adverts. As
a result, the ASA found that the adverts were misleading.
This decision is a good example of the need to ensure that any
important qualifications to any offer are clearly stated so that
customers are not misled as to their eligibility for such an offer
or as to the scope of the offer made.
10. Danfoss Heat Pumps UK Ltd, 31 August
2011
This decision concerned a website for heat pumps which made various
claims about the benefits of heat pump technology compared to other
more conventional energy sources.
Complaint / Decision
The complainant challenged whether a number of claims,
including:
"considerable savings in energy bills compared to conventional
systems";
"for every 1 unit of electricity used, up to 4 units of heat
are produced";
"energy efficiency average 400% across the year compared to
boilers that are typically 70-95%"; and
"cost effective".
were capable of substantiation and whether they were
misleading.
All complaints were upheld.
The ASA considered the claim "considerable savings in energy
bills compared to conventional systems" to be an absolute
claim. The evidence showed that savings would vary, and depended on
many factors. Therefore, because the claim implied that all
customers would see substantial savings, and this was not the case,
the ASA considered that the claim was misleading.
In relation to the second claim, the ASA considered that, because
they had not seen robust evidence relating to the whole system, the
claim gave a misleading impression of the likely achievable energy
output of the products working in the home.
The comparison of energy efficiencies with boilers was not
substantiated because the estimates of efficiency of boilers were
based on tests in domestic conditions, whereas the test on the heat
pump unit was not run under comparable conditions.
In relation to the fourth claim, although the ASA noted that the
full claim stated "cost effective passive and active cooling
available", they considered that consumers would understand it
to be a general claim that heat pumps were cost effective. Because
the ASA had not seen sufficient evidence of this, they concluded
that the claim had not been substantiated and was misleading.
Complaints against similar claims which were the subject of another
adjudication this month (ACS Renewable Solutions
Ltd, 3 August 2011), including the absolute claim
"reduce your Winter Fuel Bills by 40%", were also upheld.
The ASA considered that the five customer studies and particular
set models used were not necessarily representative of homes
generally and therefore were not a suitable basis on which to
calculate possible savings for all customers.
Advertisers should ensure that evidence used to substantiate claims
is based on fair testing and a sensible methodology. Once again,
absolute claims need a higher level of substantiation and, as such,
advertisers should be prepared to demonstrate that the benefits
claimed apply in all circumstances.
MOTORING
11. drivethedeal.com, 10 August 2011
This decision concerns an email headed "Japanese Tsunami cuts
car production. Car prices are set to rise due to lower levels of
car production. Our clients should order now to beat the impending
price increases."
Complaint / Decision
The complainant challenged whether (1) the claim that car prices
were about to rise as a result of the Japanese tsunami was
misleading and could be substantiated and (2) the email was
offensive because it used a recent tragic event to advertise the
service.
Neither of the complaints were upheld.
Drivethedeal provided evidence to show that dealerships that they
used were decreasing the discounts offered due to the shortage in
supply of cars and components as a result of the tsunami. This
issue had also been reported in press articles. The ASA considered
that this evidence sufficiently substantiated the claim and that
consumers would interpret the claim to refer to general increases
in car prices.
The ASA acknowledged that advertisers are entitled to refer to
current news events in their adverts, provided that they do not
exploit events for their own economic benefit. In this case, the
advertiser merely made a factual reference to the tsunami, without
further comment. Although the ASA acknowledged that reference to
the tsunami was likely to be seen as tasteless and insensitive by
some, in this context such reference was "unlikely to cause
serious or widespread offence".
This adjudication provides helpful guidance for advertisers
referring to recent news events in their advertisements. In
particular, referring to an event can be permitted as long as the
reference is proportionate to the claim it supports. Such
references are also only likely to be an issue if the reference is
likely to upset a wider section of the community as a whole, the
ASA takes the approach that it "can't please
everyone". Also of note is the idea that marketers may be able
to rely on press articles as evidence to substantiate advertising
claims.
OTHER
12. Commonwealth College of Business Management London
Limited, 17 August 2011
This decision concerned advertisements in a local magazine and on a
website encouraging students to study at the college. These adverts
included images of central London landmarks, such as Big Ben and
Tower Bridge. The website also included statements like "the
opportunity for you to study in one or the most incredible places
in the world – the City of London.... the opportunity of
spending part of your life in one of the most historic, developed
and powerful cities in the world." and included a section
dedicated to life in London.
Complaint / Decision
Two complainants challenged whether the adverts were misleading
because (1) they implied that the college was located in, or near
to central London; and (2) the photograph included implied that the
whole building was part of the college campus, instead of just one
floor.
The complaints were upheld, except that the first complaint was not
upheld in relation to the local magazine on the basis that it was
only distributed to the areas surrounding the college, so the ASA
concluded that the readers would be familiar with the location of
the college (the address of which was printed on the bottom of the
magazine) and as such would not be misled as to its location.
In contrast, the numerous references on the website to living and
studying in the City of London and the numerous pictures of central
London landmarks would create a strong impression that the college
was located in central London, particularly with international
students who would not necessarily be familiar with the geography
of London, and would expect the college to be located more
centrally. Therefore, the ASA considered that the advert gave a
misleading impression of the location of the college.
In addition, the description of the picture of the building as a
"campus" combined with the many references to the college
campus misleadingly implied that the college occupied the whole
building. To avoid any risk of misleading advertising, marketers
should take care not to use pictures that are unrepresentative of
the location of a particular service.
This can be compared to another adjudication this month concerning
reference to locations (Jet2.com, 3 August 2011).
In that decision, the ASA did not uphold a complaint that the use
of a photo of a beach scene for a "Summer Flight Sale"
where discounted flights were only available at the quoted price to
three European cities (not beach destinations) was misleading,
because they considered that readers would understand the
advertisement to relate to the "summer" period of travel,
rather than the specific destinations. This decision was probably
helped by the fact that the advertiser was able to show that there
were flights available to beach destinations and the "from
price" price for these flights was also listed in the
advert.
13. Pricing Practices (various)
This month the ASA adjudicated on a variety of complaints
concerning price listings and comparisons from a range of
advertisers advertising on a range of mediums. According to the BIS Pricing Practices Guide, it is recommended
that a comparison with an advertiser's own previous price
should, in general, be with the immediately previous price for that
product and, where the comparison is with an earlier price, the
basis of that comparison should be made clear. The Guide also
recommends that previous prices used in comparisons should have
been available for 28 consecutive days.
In Ebuyer UK Ltd (10 August 2011), a complaint
about a website advert for an IPad2 tablet PC which featured the
price £665 scored through and text stating "save
£16.00, now £649.00" was upheld on the basis that
it was misleading, because the product had only been available at
the higher price for five days and therefore had not been
advertised at the higher price for a reasonable amount of time. In
addition, the number of products sold during the initial period was
significantly below the number of products sold at the lower price.
The ASA considered that readers would understand from the advert
that the prices displayed were the initial prices at which EBuyer
had sold the product for a significant period immediately preceding
the price reduction. If this were not the case, information
concerning the period during which the initial price had been
offered should have been included. The ASA also noted that the
initial price of £665 which Ebuyer sold the product at was
actually higher than the RRP of £559 used by the
manufacturer's recommended retailers. Advertisers should not
display new prices as a price reduction unless the product had been
sold at the previous price in sufficient numbers and over a
sufficient period.
Similarly, in Buy It Direct Ltd, t/a
appliancesDirect.co.uk (3 August 2011), a complaint was
upheld against a website advert for a cooker, priced at
£3,064.97, which featured the text "Was £3,370.19
You save £305.22". The advertiser said the product had
been advertised at the higher price and their system populated
prices automatically. However, since the ASA was unable to verify
if or when the product had been sold at £3,370.19, it
considered the "was" price of £3,370.19 and saving
price of £305.22 had not been substantiated and therefore the
claim was misleading.
An example of a complaint that was not upheld is the decision in
The Carphone Warehouse Ltd t/a Best Buy (3 August
2011). This concerned a regional press advert with text stating
"Model:32KV500 Freeview, USB input ... NOW
£199.99". The text "was £399.99*" was
crossed through. Footnoted text at the bottom of the advert stated
"*Previous price valid in-store only from 8/10/10 -
11/12/10". The ASA accepted evidence that the TV had been
priced at £399.99, albeit for less than 28 consecutive days
in each instance, in store for a period of 47 consecutive days
during October and December 2010 and in February 2011, and online
for two periods in October and November 2010. In addition, the ASA
considered that the qualifying text clearly identified the basis of
the price comparison and therefore the advert was considered not to
be misleading.
The ASA have also reviewed complaints in relation to the
substantiation of "RRP" price comparisons, which issue
featured significantly in the OFT's study on price framing at the end of
last year.
In Home Shopping Selections Ltd (24 August 2011),
the RRP used could not be substantiated (the screen shot provided
featured a different product retailing at a different price). In
the same adjudication, the advert was found to be misleading on the
basis that the prices quoted did not include compulsory postage and
insurance cost. It is an always unfair practice under the Consumer
Protection from Unfair Trading Regulations 2008 for a product to be
described as "free" when the consumer has to pay anything
other than the unavoidable cost of responding to the commercial
practice.
Another issue with RRPs is that they should not be used for goods
that only the advertiser supplies. In Made.com Design
Ltd (10 August 2011), complaints about an advert
identifying "high street price" and using this to compare
with the advertiser's sale price was upheld on the basis that
the advertised products were not available on the high street. The
ASA acknowledged that benchmarking with an identical product was
not always possible, noting that in these circumstances, the
benchmarking should be done against substantially equivalent
products. In this case, the ASA considered that the advertised
products differed in several respects from the benchmarking
products. In addition, the ASA considered that readers would infer
from the comparisons to high street prices that Made.com was
cheaper than all high street retailers for each advertised product
by the amounts shown, or that the price advantage claimed by
comparison to the "high street price" was indicative of
the likely saving for the customer by buying from Made.com.
However, they noted that the benchmarking information had been
taken from only one high street retailer. Therefore, the ASA
considered these claims to be misleading. Interestingly, one of the
complainants was a branch of Trading Standards.
This was also addressed in Paul Simon Curtains (London) UK
Ltd (17 August 2011), in which a claim for "50% off
RRP prices" was found to be misleading because the products
were unique to the retailer and not sold elsewhere. The ASA noted
that the BIS Pricing Practices Guide stated that marketers should
not use an RRP or similar comparator for goods that only they
supplied.
In Dreams PLC (24 August 2011), a complaint
against a promotion being described as the advertiser's
"biggest ever sale" was not upheld because the advertiser
was able to show that the sale contained more stock and more ranges
of furniture at sale prices than in their previous biggest sale.
The complainant also challenged whether the prices were genuine
sale prices because the advertiser was continually advertising a
sale. The ASA noted the 2010 BIS Pricing Practices Guide stated
that a price used as a basis for comparison should be the most
recent price available for 28 or more consecutive days, that
comparisons should not be made with prices last offered more than
six months ago and, in the case of after-sale prices, sale items
should be offered at these prices for a period of at least 28
consecutive days in the three months after the end of the
promotional period. The ASA therefore considered it acceptable that
some of the price comparisons in the wider sale were based on
future prices rather than previous prices.
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 29/09/2011.