This snapshot provides a selection of the most interesting ASA adjudications from April. It provides a summary of some of the key issues considered in the adjudications, which we consider you may find useful. For example, this month's highlights include: the inappropriate lure of gambling advertisements, some interesting challenges in relation to Kellogg's dietary claims, consideration of mobile phone networks' use of the term "unlimited" and "free", and the ASA's decision to refer Ryanair to the OFT for repeatedly breach of the Code over the last two years.

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This article provides a selection of the most interesting ASA adjudications from April. They provide a summary only of some of the key issues considered in the adjudications, which we consider you may find useful. For example, this month's highlights include: the inappropriate lure of gambling advertisements, some interesting challenges in relation to Kellogg's dietary claims, consideration of mobile phone networks' use of the term "unlimited" and "free" the ASA's decision to refer Ryanair to the OFT for repeatedly breach of the Code over the last two years.

Click here to view the ASA Adjudications Snapshot for March 2008.

Gambling

OIGE CG Ltd t/a InterCasino, 23 April 2008 (appeal to youth culture)

Paddy Power plc, 23 April 2008 (linking gambling to seduction and image improvement)

Abstract Games Ltd t/a Mediaprom, 30 April 2008 (scratch card terms clarity of postal entry route and distinction between gifts and prizes)

Food

Arla Foods Ltd, 23 April 2008 ("Lactose-free" claims)

Kellogg Company of GB Ltd t/a Kellogg's, 23 April 2008 (offensiveness)

Kellogg Company of GB Ltd t/a Kellogg's, 23 April 2008 (dietary claims Coco Pops)

Kellogg Company of GB Ltd t/a Kellogg's, 30 April 2008 (dietary claims Special K)

Other

Ryanair Ltd, 9 April 2008 (substantiation of claim - referral to the OFT)

Orange Personal Communications Services Ltd, 30 April 2008 (meaning of "unlimited" and use of "free")

Gambling

1. OIGE CG Ltd t/a InterCasino, 23 April 2008

In this TV ad, two people of restricted growth were featured, dressed in dice costumes and wearing safety goggles and helmets, surveying the area around them from the top of a hill; a voice-over commentated in a mock Japanese game show style. The two characters rolled down the hill, crashing into a wall at the bottom of the hill, imitating a giant game of craps. Text stated, "over 18s [sic] only WIN" on the bottom of the screen. Three similar ads were also shown where the characters were dressed in cherry costumes (mimicking fruit from a fruit machine) and had their bodies painted with playing card patterns.

Complaint / Decision

Monitoring staff at the ASA challenged whether the ads (a) were of particular appeal to children and young persons, especially by reflecting or being associated with youth culture (b) featured characters behaving in an adolescent, juvenile or loutish way.

Both complaints were upheld: The ASA considered that the slapstick humour, sound effects and the comedic voice-over were juvenile and their tone and style were extremely similar to the types of programmes that had particular appeal to children and young persons. The ASA also considered that the way the people of restricted growth had been used in the ads was likely to increase the ads' appeal to children and young persons. Further, the ASA considered that the action of the characters (rolling down a hill while dressed in giant dice costumes), was seeking to imitate the commonplace childhood game of children rolling down a hill. Consequently the ad was in breach of the rules.

2. Paddy Power plc, 23 April 2008


A national press ad showed a short man in the back of a stretch limousine with two glamorous-looking women, holding a glass of champagne and a cigar. Text stated, "Who says you can't make money being short? Financial Spread Betting lets you bet on falling (going short) as well as rising share prices (going long)&".

Complaint / Decision

The complainant challenged whether the ad (a) irresponsibly linked gambling to seduction, sexual success and enhanced attractiveness and (b) implied that gambling could improve self-image or self-esteem or was a way to gain control, superiority, recognition or admiration.

Both complaints were upheld: The ASA concluded that, by showing the man between two glamorous women in the context of a direct reference to making money through financial spread betting, the ad irresponsibly linked gambling with sexual success and enhanced attractiveness. The ASA also concluded the ad suggested the man's "shortcoming" had been overcome by the wealth he had acquired through gambling and therefore that gambling was a way to improve self-esteem or gain recognition or admiration. On this basis, the ad was found to be in breach of the Code and irresponsible.

3. Abstract Games Ltd t/a Mediaprom, 30 April 2008

A scratch card stated "Reveal 4x £ symbols and you can claim the Nissan Qashqai or a cash amount See ticket back for details". Text on the back of the scratch card stated "Reveal 4x £ symbols and you have won a Nissan Qashqai or a great cash amount! &call the Claims Hotline on 0906 661 3813* or claim by mobile, text the word DAILY to 84142** alternatively see rules for postal entries.

If you reveal 4 identical symbols you are instantly guaranteed a minimum cash amount of £5 and you may have also hit the jackpot of a brand new Nissan Qashqai." Small print stated "To claim by post write to the claim address including 30p for return postage requesting a Claim Number&No purchase necessary."

Complaint / Decision

Several complaints were made. The two most interesting points of the adjudication were as follows:

The ASA considered that the £5 cash was available to the vast majority of people who revealed four symbols and, as such, this should have been distinguished clearly from the actual prizes consumers had the opportunity to win. The ASA concluded that the scratch card was in breach of the Code as it did not distinguish between gifts and prizes.

The second point, which was also upheld, was that the text about postal entries did not make sufficiently clear that it related to a no purchase route for obtaining a claim number. The CAP Copy Advice team had provided earlier advice to Mediaprom stating that the no purchase route needed to be clearer, but Mediaprom had ignored their suggested changes. As a result of several separate breaches of the Codes, CAP were told by the ASA to inform its media members of the issues with Mediaprom.

Food

4. Arla Foods Ltd, 23 April 2008

A TV ad, for Lactofree milk, stated "Lactofree, the full taste of real milk, just without the lactose". Text on the packaging stated "with less than 0.05%" lactose.

Complaint / Decision

Two viewers claimed that the ad was misleading and potentially harmful, because they considered that the product contained 0.05% lactose.

Complaint not upheld: The advertiser produced UK-accredited tests, which it had undertaken, to demonstrate that Lactofree contained 0% lactose but at a detection level of 0.05%. The ASA understood that it was generally accepted that the lowest amount of lactose that could trigger symptoms in an individual who was lactose intolerant was 5g. Lactofree was well below the 5g margin and was therefore unlikely to have any effect on someone who suffered from lactose intolerance the ASA concluded that the ad was unlikely to mislead or cause harm to viewers.

5. Kellogg Company of GB Ltd t/a Kellogg's, 23 April 2008

A TV ad for a cereal bar was set in a doctor's surgery. A young man (who appeared to be a patient) said to an older man dressed in a doctor's coat "I get these weird feelings around eleven and four". The person appearing to be a doctor replied "Ah,& Cakey-pangs. You need oveny-bakey-cakeyness. I suggest you eat this Nutri-Grain". He then added "Now take off your trousers". The alarmed 'patient' asked "You're not a real doctor are you?" he replied "No. I'm a baker" as he put an oven glove on his hand.

Complaint / Decision

The most notable complaint was made by 42 complainants. They challenged whether the ad was offensive because it suggested the sexual abuse of younger people by authority figures.

Complaint not upheld: The patient character in the ad was clearly an adult and the ASA considered that he did not appear to be threatened by the "doctor", who was presented as a surreal, eccentric figure rather than as a powerful or authoritative figure. The ASA concluded that, whilst some viewers might find the ad distasteful, most would understand that the ad was light-hearted in tone and was attempting to be humorous.

6. Kellogg Company of GB Ltd t/a Kellogg's, 23 April 2008

The TV ad showed two children returning home from school. The girl said "I'm glad we're home" and the boy responded "Yeah, food would be an idea." The children then reached for a box of Coco Pops and each ate a bowl with milk. The voice-over stated "If you're looking for an after school snack Coco Pops and cold milk make perfect partners&Coco Pops and milk are a bowl full of chocolately fun even after school".

Complaint / Decision

Viewers challenged whether the ad encouraged a harmful dietary practice by encouraging parents to feed their children a product that was high in sugar as a snack. They also complained that it implied that it was appropriate for children to eat two bowls of Coco Pops a day.

Complaint not upheld: The ASA took the view that the ad neither implied excessive consumption nor that Coco Pops would necessarily be eaten for breakfast and also as a snack. The ASA noted that on-screen text had stated "As part of a healthy balanced diet and active lifestyle". The ASA did not consider that it was irresponsible to suggest that the product could be eaten as a snack as part of a balanced diet.

7. Kellogg Company of GB Ltd t/a Kellogg's, 30 April 2008

A TV ad, for Special K included the voiceover: "Jeans a bit tight since Christmas? Then take the Special K Slimmer Jeans Challenge. Two bowls, two meals, two weeks." Smaller on-screen text stated "Challenge can help slimming or weight control as part of a calorie controlled balanced diet & active lifestyle."

Complaint / Decision

The complaint was similar to that made in connection with the Coco Pops complaint above. A viewer considered that the ad was harmful and irresponsible because it encouraged consumption of Special K twice a day and unhealthy "quick-fix" dietary practices.

Complaint not upheld: The ASA considered that the ad was promoting a "kick-start" diet rather than long term healthy eating plan, which was to be combined with a balanced third meal. As such, it was concluded that the ad was unlikely to cause harm or promote excessive consumption, and did not disparage good dietary practice.

Other

8. Ryanair Ltd, 9 April 2008

A national press ad, for Ryanair, stated "January sale 2 million seats from £10 one way, taxes & charges included travel Monday - Sunday ...".

Complaint / Decision

The complainant, who attempted to purchase a flight in the sale but could not find any discounted flights for travel on Fridays or Sundays, challenged whether the advertised seats were available Monday to Sunday.

Complaint upheld: Ryanair were unable to demonstrate to the ASA that the £10 flights were available for travel every day of the week in sufficient quantities to ensure a reasonable prospect of readers obtaining a flight at the headline price on the advertised days.

Over the past two years there have been many Ryanair ads which have breached the CAP Codes. As a result, the ASA have taken the rare step of referring Ryanair to the Office of Fair Trading for further action. In its decision, the ASA referred to Ryanair as having an "&unwillingness and apparent inability to comply with the Code rules on misleadingness&".

9. Orange Personal Communications Services Ltd, 30 April 2008

Various advertisements for Orange mobile referred to an offer for "unlimited free texts" with voice over/text stating that a Fair Usage Policy ("FUP") applies and that it required Top-ups of £30 a month.

Complaint / Decision

T Mobile and other complainants challenged (i) the use of the claim "unlimited" in connection with a fair usage policy (ii) the claim "free texts" as customers had to top-up with £30 each month to be eligible for the free texts and (iii) the claims "unlimited" and the statement "good things should never end" on the basis that they encouraged consumers to make heavy use of their free texts, thereby increasing the possibility of falling outside the FUP.

None of the complaints were upheld. The ASA was satisfied that that the FUP was fair and affected only unusual users who used in excess of 3000 texts per month. It considered that it was sufficient for Orange to qualify the claim "unlimited" with a reference to the existence of the FUP. Second, because customers could use the £30 top-up on call charges and still receive the text offer, and because the price of the top-up (£30) had not been inflated to take account of the promotional free texts, the ASA considered that use of the term free was not misleading. Finally, the ASA considered the evidence that, since the promotion had been introduced, the number of customers breaching the FUP limit had risen but concluded that those customers remained only a very small proportion of the total number of Orange's "unlimited" text customers. As such, the claims were held not to encourage customers to exceed the FUP.

Click here to access the ASA's helpful note on Price claims in Telecommunications marketing.

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 20/05/2008.