UK: ASA Adjudications Snapshot - April 2010

Last Updated: 1 June 2010
Article by Susan Barty and Susie Carr

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

This month, the ASA gave particular consideration to the importance of imagery in providing context for claims made in ads and gave consideration to the circumstances in which comparative claims should be construed as unfair.

FOOD AND DRINK

1. Kellogg Marketing and Sales Company (UK) Ltd t/a Kellogg's, 7 April 2010 (high sugar snacks advertised in small quantities not in breach)

HEALTH AND BEAUTY

2. Tesco Ireland Ltd t/a Tesco Diets, 28 April 2010 (details of weight loss regime omitted)

3. Equafleece Ltd, 14 April 2010 (claim to "guard against" arthritis likely to mislead)

COMPARATIVE ADS

4. Virgin Media Ltd, 7 April 2010 (comparison against Sky product not in breach)

5. Celotex Insulation Ltd, 21 April 2010 (unfair comparison claim as to efficacy of product)

6. Superdrug Stores plc, 14 April 2010 ("get it first" claim likely to mislead)

OTHER

7. Euro Disney Association SCA t/a Disneyland Paris, 28 April 2010 (definition of "kids" in "kids go free" claim)

8. Associated Newspapers Ltd t/a Daily Mail, 7 April 2010 ("free with" claim)

NON-COMMERCIAL

9. Department for Transport, 14 April 2010 (car emissions claim not in breach)

10. Department for Children, Schools and Families, 21 April 2010 (distressing ad targeted at adults)

To view the article in full, please see below:



Full Article

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

This month, the ASA gave particular consideration to the importance of imagery in providing context for claims made in ads and gave consideration to the circumstances in which comparative claims should be construed as unfair.

FOOD AND DRINK

1. Kellogg Marketing and Sales Company (UK) Ltd t/a Kellogg's, 7 April 2010 (high sugar snacks advertised in small quantities not in breach)

HEALTH AND BEAUTY

2. Tesco Ireland Ltd t/a Tesco Diets, 28 April 2010 (details of weight loss regime omitted)

3. Equafleece Ltd, 14 April 2010 (claim to "guard against" arthritis likely to mislead)

COMPARATIVE ADS

4. Virgin Media Ltd, 7 April 2010 (comparison against Sky product not in breach)

5. Celotex Insulation Ltd, 21 April 2010 (unfair comparison claim as to efficacy of product)

6. Superdrug Stores plc, 14 April 2010 ("get it first" claim likely to mislead)

OTHER

7. Euro Disney Association SCA t/a Disneyland Paris, 28 April 2010 (definition of "kids" in "kids go free" claim)

8. Associated Newspapers Ltd t/a Daily Mail, 7 April 2010 ("free with" claim)

NON-COMMERCIAL

9. Department for Transport, 14 April 2010 (car emissions claim not in breach)

10. Department for Children, Schools and Families, 21 April 2010 (distressing ad targeted at adults)

FOOD AND DRINK

1. Kellogg Marketing and Sales Company (UK) Ltd t/a Kellogg's, 7 April 2010

A poster for Coco Pops featured a picture of the cartoon character Coco the monkey dressed in school uniform. The ad stated "Ever thought of Coco Pops after school?"

Complaint/ decision

Twenty-six complainants challenged whether the ad was irresponsible, because they believed it directly targeted school children and encouraged them to eat a snack that was high in sugar. Some of those complainants also complained because they believed it encouraged children to eat two bowls of breakfast cereal a day.

The ASA rejected both of the complaints. The ASA noted the cartoon-nature of the ad and accepted that: (a) the ad was clearly targeted at children; and (b) that the product was classed as high in sugar according to Food Standards Agency (FSA) guidance because it contained 34 g of sugar per 100 g. However, the ASA found that, due to a lack of guidance as to what could be classed as 'high' in sugar in smaller quantities, and as it was feasible that a bowl of Coco Pops could replace an after-school snack as opposed to creating a new snack, the ad was not in breach of the Code.

Second, the ASA found that it was unlikely that readers would infer from the ad that it was appropriate to eat two bowls of Coco Pops a day, nor could the ad be seen as encouraging excessive consumption or encouraging unhealthy dietary practice in children.

In this case, the advertiser was able to rely on its robust evidence and the fact that there is a lack of guidance on what constitutes 'high' amounts of sugar in small quantities. However, advertisers should continue to be careful not to imply in their ads that HFSS products should be eaten in excessive amounts, or constitute 'additional' meals or snacks. Further, advertisers should ensure that their products are not advertised in a manner which could be seen to promote an unbalanced or unhealthy diet.

HEALTH AND BEAUTY

2. Tesco Ireland Ltd t/a Tesco Diets, 28 April 2010

A leaflet for Tesco's "Weight Loss Retreats" pictured a group of women on one page and stated "Average of 2 inches off waist size" and "Up to 1 stone 2lbs loss, an average weight loss of 4.5 lbs". A second page provided information about the weight loss scheme and stated "Meet some of our success stories! Read their stories and watch their videos at www.tescodiet.com/guarantee". A man and a woman were pictured and text stated "Deane lost 4 ½stone" and "Karl lost 3 ½stone". Small print stated "Based on a starting BMI of 26 or more."

Complaint/ decision

The complainant challenged whether the ad appeared to be offering weight loss methods to obese people in an inappropriate manner.

The ASA upheld the complaint. The ASA considered that the claim "Deane lost 4 ½ stone" and "Karl lost 3 ½ stone" implied it was likely they had been obese before their weight loss, due to the amount of weight lost. The ASA noted Tesco's evidence which showed that Karl and Deane had lost the weight over an 18-month period, and that such information was available on its website. However, it found the ad to be in breach as that information had not been included in the ad itself.

The adjudication highlights the importance of advertisers including properly detailed information in their ads when making weight loss claims, particularly where large amounts of weight are purported to have been lost. In particular, details as to the time period over which the weight was lost must be included in the ad, and it is not sufficient for the reader to be able to access such information from a different source.

3. Equafleece Ltd, 14 April 2010

A press ad for jumpers for dogs stated "POLARTEC fleeces from EQUAFLEECE - the quickest way of drying off your dog and guarding against arthritis after a hard day's work."

Complaint/ decision

The complainant challenged whether the claim "guarding against arthritis" could be substantiated. In responding to the complaint, Equafleece said it had supplied dog fleeces to various customers, including veterinary surgeons, all of whom attested to the products warming properties. Further, Equafleece maintained that the ad claimed the fleece would "guard against" arthritis and did not state or imply it could prevent the disease. It said that the dictionary definition of "guard" meant "to take careful action in order to try to prevent something from happening", and argued that the dog fleeces were a precaution that could minimise the risk of developing arthritis.

The ASA upheld the complaint, considering that implicit in the definition of "guard against" was the notion of taking a preventative measure. In this regard, the ASA noted the articles sent by Equafleece suggested that dogs already suffering from arthritis might experience less pain and stiffness in their joints if kept warm, but noted they did not state that keeping joints warm would prevent arthritis. The ASA considered that readers were likely to infer from the claim that wearing the fleece could prevent dogs developing arthritis, which was a claim that had not been substantiated.

This adjudication provides useful guidance as to the ASA's interpretation of claims which purport to 'guard against' the onset of certain conditions. The decision shows that where such claims are made, whether for humans or animals, robust evidence should be provided which can show that the product actually has preventative qualities, as opposed to merely precautionary qualities.

COMPARATIVE ADS

4. Virgin Media Ltd, 7 April 2010

A mailing for Virgin Media consisted of a letter headed "If you could get better than Sky, for less than Sky, why wouldn't you?" and a brochure entitled "Why settle for a dish when you can have the whole menu?".

Complaint/ decision

British Sky Broadcasting (Sky) complained on three grounds, one of which on the basis that the claim contained within the brochure, "Better still, our V+HD Box lets you record two channels while you watch a third (sorry Sky). And you can store up to 80 hours of programmes" misleadingly implied that the Sky+ HD box was unable to store up to 80 hours of programmes. The two other complaints made by Sky were on the basis that certain claims made by Virgin in its marketing materials were misleading.

The ASA rejected all three of the complaints. In respect of the first complaint, the ASA noted that it was clear from the wording in the mailing that two separate claims were being made. The ASA considered that readers were likely to understand the first was a comparison claim between the number of recordable channels on the two services, and that the second was simply a supplementary claim about the amount of storage hours on Virgins V+HD box, rather than a comparison with the storage on a Sky+HD box. On this basis, the ad was unlikely to mislead readers.

This decision represents the latest in the long line of complaints made between Virgin and Sky, and provides useful guidance as to in what circumstances comparisons can be made between products without being in breach of the Code. Although the decision, particularly on the first complaint, was not surprising, in the light of the ongoing challenges between these advertisers it is possibly somewhat surprising that Sky chose to make such a narrow complaint on the comparative issues.

Advertisers should ensure that where comparative claims are made, these should be clearly separated from claims which relate solely to their own products, so as to prevent those claims from being viewed as misleading.

5. Celotex Insulation Ltd, 21 April 2010

Celotex advertised in a magazine ad in a trade publication and a catalogue which promoted insulation. The magazine ad was headed "Celotex is the only PIR insulation that achieves a BRE Green Guide rating of A+...Being the only provider of PIR insulation to have achieved these standards Celotex products can uniquely help optimise sustainable building solutions." The catalogue was headed "Celotex Sustainability and The Road to Zero Carbon" and compared Celotex against typical PIR insulation.

Complaint/ decision

The complainant challenged the ads on various grounds, one of these being on the basis that the claims made in the magazine ad implied that other PIR companies had a lower BRE Green Guide rating than Celotex, when in fact Celotex was the only PIR company with a BRE rating at all. Further, the complainant challenged whether Celotex's claim of its product producing "zero carbon" could be substantiated.

The ASA upheld all but one of the complaints. In respect of the claim that Celotex was the only PIR insulation to have been awarded an A+ rating, the ASA acknowledged the evidence submitted by Celotex which proved this point. However, the ASA found that the wording of the claim in the ad implied other companies had been assessed but had not reached the A+ standard, which had not been the case. Therefore, the ad was likely to mislead, and was found to be in breach of the Code.

In respect of the "zero carbon" complaint, the ASA rejected the complaint, and found that the claim was not in breach of the Code. In its reasoning, the ASA referred to the imagery used by Celotex in its ad which showed a road featuring several key milestones and target dates for housing reductions in CO2. Further text in the ad had satisfactorily explained how reductions in CO2 leading to "zero carbon" new build homes by 2016 formed part of "The Code for Sustainable Homes". For these reasons, the ASA found that the ad was not misleading.

This adjudication serves to remind advertisers to exercise caution when making claims about their products which may be implied as providing unfair comparisons with other products. This is particularly so where such products have not been assessed against equal criteria in the ad.

The adjudication also highlights the value of advertisers using imagery in their ads to provide context for headline claims.

6. Superdrug Stores plc, 14 April 2010

A press ad for L'Oreal Youth Code stated "Get it first ... only at Superdrug."

Complaint/ decision

Boots challenged whether the claims "Get it first" and "only at Superdrug" were misleading, because the product was not available exclusively at Superdrug and was sold by other retailers.

Superdrug said they were the first retailer to stock the three L'Oreal Youth Code products featured in the ad. They explained that the ad was placed on 22 and 23 January 2010 and that no other retailer sold the product until 24 January 2010; they therefore believed it was accurate to claim that consumers could "Get it first" at Superdrug. Superdrug refuted the challenge that the ad claimed it was exclusively available at their stores because they believed it was implicit in the claim "Get it First" that other retailers would sell the product in future.

The ASA considered that the ad made clear that the L'Oreal products were available first at Superdrug, and viewed that readers would understand from the word "first" that other retailers would subsequently sell the product. The ASA did not consider it likely that readers would infer from the ad that Superdrug stocked the products on an exclusive basis.

However, the ASA upheld the complaint, on the basis that it had evidence that Boots had actually started to sell the products on 23 January 2010. Therefore, although the claim "Get it first ... only at Superdrug" was correct and unlikely to mislead when the ad was placed on 22 January, because the products were available at Boots when it appeared on 23 January, it was likely to be misleading.

Advertisers should always ensure that up-to-date and verifiable research is carried out, particularly before making claims which make reference to competitors' products and/or sales information.

OTHER

7. Euro Disney Association SCA t/a Disneyland Paris, 28 April 2010

A TV ad showed a series of rides at Disneyland Paris. The voice-over stated "Hop over to the magic of Disneyland Paris and meet all your family's favourite characters. From January 3 to April 1 enjoy two nights, three days from only £150 per adult in a Disney hotel. Plus all kids go free ...". The text "all kids go free" appeared in gold on the screen. On-screen text stated "One paying adult per room. Kids under 12."

Complaint/ decision

The complainant challenged whether the ad was misleading, because they believed the claim "All kids go free" was contradicted by the on-screen text "kids under 12".

Euro Disney argued that the ad had clearly stated on screen that children had to be under the age of 12 to be eligible for the offer and also invited the viewer to check full terms and conditions on their website. Further, it argued that it was common in the airline industry to define children as 2 to 11 years of age and attached examples. Clearcast also commented that, although they felt confident "all kids" was consistent with the travel and holiday industry's classification of a child, they had, nonetheless, requested that the advertiser include the qualifying text "kids under 12" for clarity.

The ASA upheld the complaint. Although it noted the travel and holiday industry generally defined "kids" as younger children aged 2 to 11, the ASA considered the average viewer might not hold such a specific definition, and the claim "All kids go free" was contradicted rather than clarified by the claim "kids under 12". As such, the ad was misleading.

This adjudication is somewhat surprising given that Euro Disney and Clearcast had provided evidence of the relevant industry standard definition of "kids", and had taken precautionary steps to provide qualifications in the ad itself to make clear the terms of the offer to the public. Advertisers should make very clear the exact terms of any offers, particularly any restrictions, and avoid using terms which could give rise to ambiguity.

8. Associated Newspapers Ltd t/a Daily Mail, 7 April 2010

A front-page flash on the Daily Mail stated "Free With Tomorrows Mail - Poirot - Free DVD".

Complaint/ decision

Two readers complained that the flash was misleading because it did not make clear that the DVD would not be included with the newspaper, but had to be collected from either Tesco or WH Smith.

The ASA upheld the complaint, finding that the front-page flash had implied that the DVD would be included "with" the following day's newspaper. The ASA noted the fact that consumers could also claim the DVD by using the coupon inside the promotional issue of the newspaper, but did not consider that this option removed the expectation that the disc would be inside the next day's newspaper.

Advertisers should avoid using "free with" claims where the 'free' item is not physically accompanying the purchased product, but instead needs to be collected from a store or sent off for.

NON-COMMERCIAL

9. Department for Transport, 14 April 2010

A TV ad for the Act on CO2 campaign showed an image of what appeared to be an industrial chimney emitting pollution into the atmosphere. The shot opened to reveal the chimney was, in fact, a car exhaust emitting fumes. The voice-over stated "Scientists say rising CO2 emissions are causing our climate to change. In the UK, over 40% of these emissions are caused by the things we do as individuals. Car travel is the single biggest contributor to this." The on-screen text stated "UK Government data, 2009". The voice-over went on to say "But together we can begin to make a difference by driving 5 miles less a week".

Complaint/ decision

Fifty-two viewers challenged whether the claim that car emissions were the "single biggest contributor" to human-produced CO2 emissions, could be substantiated. Two viewers challenged whether the claim could be substantiated because they believed that emissions from livestock were greater.

The ASA rejected both of the complaints. In respect of the first complaint, the ASA noted that the DfT had satisfactorily qualified its claim by referring only to emissions caused by individuals' actions, as opposed to commercial or industrial causes. In this regard, the ASA found that the DfT's evidence was reliable in evidencing that of these actions, car travel was indeed the biggest sole contributor.

In respect of the second complaint, the ASA found that the DfT had made it sufficiently clear that the emissions referred to in the ad related solely to the actions of individuals, as opposed to "the contribution made by human beings as a whole through industrial production or rearing of livestock".

Green issues are always likely to attract particular attention and be subject to scrutiny. This decision follows on from last month's adjudication on the Department of Transport's Act on CO2 campaign, which received over 950 complaints ( click here to view last month's Law-Now on this adjudication). Although the campaign continues to receive a large number of complaints and has received negative publicity from some areas, the ASA has thus far only found two of the DfT's ads to be in breach of its code, and only to a limited extent.

This adjudication highlights the importance of making appropriately qualified claims. Advertisers should seek robust and reliable sources of evidence before making claims, particularly those which relate to environmental issues. Advertisers should also be aware of the provisions of the new CAP Code (to come into force in September 2010), which sets out, amongst other things, when such environmental claims can be made and the evidence required to substantiate those claims.

10. Department for Children, Schools and Families, 21 April 2010

Two TV ads, for the 'Why Let Drink Decide?' campaign, both ended with a voice-over that stated "The sooner we talk to our kids about alcohol, the less chance that drink will start making decisions for them. Why let drink decide?". They showed children, who spoke about future experiences which included: drinking alcohol, having sex, taking drugs and having fights.

Complaint/ decision

The ASA received 27 complaints, on the basis that: (a) the ads were likely to cause serious or widespread offence, in particular because they showed children discussing adult topics; and (b) because the ads could cause harm or distress to children who might be watching.

The ASA rejected both of the complaints. In respect of the first complaint, the ASA found that adult viewers were likely to understand the seriousness of the message that the ads presented, and that the content was unlikely to be seen as disproportionate to the seriousness of the message. In respect of the second complaint, the ASA noted that the ad had been cleared by Clearcast with a post-9 pm timing restriction, and considered that the restriction was sufficient to help prevent the ad being seen by young children, for whom those direct references might be unsuitable.

The decision serves to remind advertisers of the benefits of targeting ads carefully, particularly where the ads contain content which might be considered distressing for children. It is also one in a line of adjudications which show the ASA taking a more lenient approach to non-commercial ads which have an important social message (for example the ASA's March 2010 adjudication on a DfT ad which was not deemed to be in breach of the Code even though it contained potentially distressing scenes – click here to view our March Law-Now).

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 28/05/2010.

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