UK: ASA Adjudications Snapshot - May 2010

Last Updated: 29 June 2010
Article by Susan Barty, Stuart Helmer and Lucy Kilshaw

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

This month, the ASA gave particular consideration to the importance of evidential requirements when making claims of any nature, and gave consideration to the circumstances in which claims and offers of prizes made in promotions would be construed as unfair and misleading.

Full Article

FOOD AND DRINK

1. WIV Wein International AG, 5 May 2010 (alcohol promotion inappropriately targeted)

HEALTH AND BEAUTY

2. L'Oreal (UK) Ltd, 12 May 2010 ("up to 80% longer lashes" and post production enhancement not a misleading claim)

3. Revlon International Corporation, 12 May 2010 ("massive volume and remarkable definition" and post production enhancement)

COMPARATIVE ADS

4. British Sky Broadcasting Ltd, 5 May 2010 (comparison claim by Sky not in breach)

OTHER

5. Intercontinental Hotels Group plc t/a Priority Club, 5 May 2010 ("2 for 1" prize not misleading)

6. Eurotunnel, 26 May 2010 (wide-ranging claims likely to mislead)

7. Louis Vuitton UK Ltd, 26 May 2010 (imagery and claims found to be misleading)

NON-COMMERCIAL

8. St Judes Hospitals and Clinic, 5 May 2010 (IVF treatment, offered as a prize, found to be misleading)

To view the article in full, please see below:



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

This month, the ASA gave particular consideration to the importance of evidential requirements when making claims of any nature, and gave consideration to the circumstances in which claims and offers of prizes made in promotions would be construed as unfair and misleading.

FOOD AND DRINK

1. WIV Wein International AG, 5 May 2010 (alcohol promotion inappropriately targeted)

HEALTH AND BEAUTY

2. L'Oreal (UK) Ltd, 12 May 2010 ("up to 80% longer lashes" and post production enhancement not a misleading claim)

3. Revlon International Corporation, 12 May 2010 ("massive volume and remarkable definition" and post production enhancement)

COMPARATIVE ADS

4. British Sky Broadcasting Ltd, 5 May 2010 (comparison claim by Sky not in breach)

OTHER

5. Intercontinental Hotels Group plc t/a Priority Club, 5 May 2010 ("2 for 1" prize not misleading)

6. Eurotunnel, 26 May 2010 (wide-ranging claims likely to mislead)

7. Louis Vuitton UK Ltd, 26 May 2010 (imagery and claims found to be misleading)

NON-COMMERCIAL

8. St Judes Hospitals and Clinic, 5 May 2010 (IVF treatment, offered as a prize, found to be misleading)

FOOD AND DRINK

1. WIV Wein International AG, 5 May 2010

A direct mailing, from WIV, stated "...At the present time we are conducting a representative consumer survey regarding "International Wines"...Please take three minutes of your time...A freepost envelope is enclosed for your completed survey..." A tick-box list of questions was provided, which asked, for example, "Which age bracket do you fall into? Under 30 years, 30-50 years or over 50 years", "Which wines do you prefer?" and "How often do you drink wine?" At the end of the questionnaire, text stated, "Please enter your phone number(s) to arrange delivery of gift". Further text stated, "Our "thank you" gift for your participating is this... Digital tabletop WEATHER STATION & ALARM CLOCK together with a sampling of 6 selected high quality wines...free of charge and without any obligation to you. As we are sure you enjoy wine we recommend that you take up our free offer..."

Complaint/decision

The complainant challenged whether the mailing was appropriately targeted, as it had been received by her son, aged 17years.

The ASA upheld the complaint. The ASA noted the Code required marketers to take all necessary steps to ensure that marketing communications were suitable for those targeted and that marketing communications for alcoholic drinks should not be directed at people under the age of 18 through the selections of media, style of presentation, content or context in which they appear. The ASA acknowledged that the complainant's son has been sent the mailing in good faith based on the purchase history of his household. The ASA were concerned however, that the mailing, which related specifically to alcohol purchase and consumption, was targeted at a person under the age of 18, and considered that WIV should have taken further steps to ensure that the database list for the mailing did not include persons under that age.

The adjudication highlights the importance for advertisers appropriately to target their audience, in particular to ensure that recipients of alcohol related purchase and consumption products are not targeted to any one under the age of 18.

HEALTH AND BEAUTY

2. L'Oreal (UK) Ltd, 12 May 2010

A magazine advert for L'Oreal Double Extension mascara showed a close-up of Freida Pinto's face along with the text "Inside a spectacular mascara the RENEWAL LASH SERUM...Multiplied lash effect, up to 80% longer looking lashes". The small print stated, "Freida's eyes styled with lash inserts for an even lash line and intensified with Double Extension Renewal Serum inside".

Complaint/decision

The complainant challenged whether the image of the eyelashes misleadingly exaggerated the effect that could be achieved when using the product. The ASA also added its own challenge as to whether the claim "up to 80% longer-looking lashes" could be sustained.

The ASA rejected both challenges. The ASA noted that lash inserts had been used but understood that they were no longer than the natural lash length of the model. The ASA also considered that post-production techniques had not been used to alter the length of the lashes and therefore concluded that the use of false lashes alone did not accentuate the appearance of the lash length.

The ASA acknowledged the disclaimer, "Freida's eyes styled with lash inserts for an even lash line and intensified with Double Extension Renewal Serum inside", made clear to readers that individual lash inserts had been used. The use of lash inserts, which were of the same length as natural lashes, to create an even lash line did not exaggerate the effect of the product to make lashes appear longer, and therefore concluded that the advert was unlikely to mislead on that point.

The ASA also noted that consumer testing and digital analysis studies carried out and submitted by L'Oreal demonstrated that a significant proportion of participant's lashes had shown an increase of 80% or more in their visible length. The ASA therefore concluded the phrase; "up to" had been used appropriately to convey that "up to 80%" was the maximum visible lengthening effect a consumer could expect to achieve.

3. Revlon International Corporation, 12 May 2010

A similar decision was reached by ASA in regard to a complaint made against Revlon International Corporation, (12 May 2010). The TV advert for mascara, featuring the actress Jessica Alba, stated "A revolutionary 2-in-1 applicator that combines a thickening brush with separating combs, for massive volume and remarkable definition". The ad went on to illustrate the application of mascara and showed a sequence of close-ups of the eye area. On-screen text stated "Filmed with lash inserts and enhanced post production".

The ASA noted the evidence sent by Revlon demonstrated that the product increased lash volume and definition and therefore considered that the claims "remarkable definition" and "massive volume" had been supported by evidence. Also viewers had been informed that post production techniques had been used. The ASA therefore considered the ad did not exaggerate the effect of the product and concluded the ad was unlikely to mislead.

These are the two latest complaints in a number of similar complaints about mascara dating back at least as long ago as 2002, when the ASA were somewhat more lenient, finding an image not to be misleading, where three or four false eyelashes were added "to fill in gaps and to make Kate Moss' eyes more even".

Both these adjudications provide useful guidance as to ASA's current treatment of claims which purport to "lengthen" and "thicken" eyelashes and as to the importance of an on-screen text. The decisions highlight that claims are not automatically considered misleading with the use of lash inserts and post production enhancement; provided viewers are made aware, and where such claims are made, consumer tests and evidence must be shown to support the claim. Advertisers should, nevertheless, take care that an on-screen text is accurate and appropriate for the claims made and for the visual image.

COMPARATIVE ADS

4. British Sky Broadcasting Ltd, 5 May 2010

An in-store sales promotion for Sky+ High Definition (HD) TV showed a number of clips, including sports, movies and programmes, using a split-screen format. The right-hand side of the screen was labelled "Sky+HD – TV in High Definition" and the left-hand side was labelled "Comparable to terrestrial TV". A dividing vertical line was swept from left to right across the screen comparing the difference in image sharpness. Each clip was separated by text, which stated "High Definition – Now it's for everyone...." And a voice-over, which stated "We've reduced the price of our Sky TV box when you buy an HD ready TV..."

Complaint/decision

Two complaints were received, challenging whether the left-hand side demonstration properly reflected the quality of terrestrial TV or whether the comparison misleadingly exaggerated the difference in image quality.

The ASA rejected the complaint. The ASA took expert advice from Ofcom for a technical analysis of the content of the sales promotion demonstration disc. Ofcom said the HD portion of the screen was a valid representation of the picture quality likely to be achieved by an HD service delivered by satellite. They considered that the standard definition (SD) side of the screen, was likely to reflect the experience of terrestrial viewers in general.

The ASA understood from Ofcom that the quality of the SD side of the screen was representative of the experience of terrestrial SD TV households in general. Therefore the ASA concluded that the comparison between terrestrial SD and Sky HD was fair and unlikely to give a misleading impression about the image quality of Sky+HD.

The decision serves as a useful reminder to advertisers that where comparative claims are made, valid and verifiable research should be carried out so as to prevent these claims from being viewed as misleading.

OTHER

5. Intercontinental Hotels Group plc t/a Priority Club, 5 May 2010

A scratch card was headlined "Walt Disney World and Holiday Inn invite you to join in the magic ..."and stated "Simply scratch off the panel below and enter your code at http://www.holidayinngreenroom.co.uk/disney by 28th February 2010 to see if you've won one of these great prizes: ...250 x 2 nights for the price of 1 at IHG hotels". Text below stated "Your code is: N4XXXXX3. Free prize draw: for your chance to win a dream holiday for the entire family ... simply visit www.holidayinngreenroom.co.uk/disney ". Overleaf, the ad stated "Your key to unlock a dream holiday in Walt Disney World ... and 100's [sic] of other fantastic prizes. Full terms and conditions available on www.holidayinngreenroom.co.uk/disney ".

Complaint/decision

The complainant, who was given the scratch card after staying at the Holiday Inn and who won the prize "2 nights for the price of 1 at IHG hotels" with his scratch card code, challenged whether the ad was misleading, because it described the discount as a prize, when he believed the offer was also available to anyone who went to the website that he was directed to, and not just those people who had won the prize with their scratch card.

The ASA rejected the complaint. The ASA understood that the advertisers had presented the "2 for 1" discount prize to 250 winners only and therefore considered that the "2 for 1" offer was a prize, despite the fact that other internet users might have been able to claim the "2 for 1" discount by accessing the weblink. The ASA also noted that winners of the "2 for 1" prize had still been able to claim their prize and concluded that as the prize winners had not been materially affected by the disclosure of the web link the advert was unlikely to mislead.

In this case the advertiser was able to show that the "2 for 1" prize was a legitimate promotion for winners who held the scratch cards. However advertisers should continue to be careful as to how they market promotions when using web links, which could be accessed by the general public.

6. Eurotunnel, 26 May 2010

A sales promotion sent by e-mail, for Eurotunnel services, was headlined "France in just 35 minutes" and stated " ... Whatever the weather ...".

Complaint/decision

The complainant, who was one of those who had been stranded for hours in December 2009 due to heavy snow, challenged whether the claims: "France in just 35 minutes" and "Whatever the weather" were misleading and could be substantiated.

The ASA rejected the first complaint. The ASA considered that consumers would not expect the claim "France in just 35 minutes" to mean that every single journey took precisely 35 minutes, but that most journeys, day and night, took 35 minutes and that crossings exceeding that time were rare. The ASA received evidence which showed that just over 80% of all crossings between 1 August 2009 and 31 January 2010 took 35 minutes or less, and the average time for all crossings during that period was 34.52 minutes. Of the journeys exceeding 35 minutes in that period, a substantial proportion took only 36 minutes. The ASA therefore considered that was reasonable and sufficient to substantiate the claim "France in just 35 minutes".

The ASA upheld the second complaint. The ASA considered that the claim "whatever the weather" was likely to be seen as more wide-ranging than the claim "France in just 35 minutes" and suggested that any type of weather, including heavy snow and other unusual or exceptional conditions, would not affect the travel experience by causing delays or increased journey times. It seemed that was not the case, because adverse weather conditions such as snow could, and indeed did in December 2009, affect the length of the journey and cause the service to be suspended. The ASA noted Eurostar was a separate company from Eurotunnel, and that conditions on the roads had contributed to the delays for Eurotunnel passengers in December 2009, but considered that the absolute claim "whatever the weather" could not be made if, in order for it to be true, Eurotunnel were dependent on other companies and infrastructure functioning normally in bad weather, because they had no control over that. The ASA also considered that the conditions of December 2009 could not be placed, as Eurotunnel had argued in their response, in the same bracket of exceptional weather as a hurricane or tsunami and it could not be assumed that they would never be repeated. It was therefore possible that the weather would again affect Eurotunnel journeys in future. The ASA concluded that the claim had not been substantiated and was misleading.

This adjudication highlights the importance of advertisers of being able to substantiate any claims made with factual evidence, particularly where there is a real risk of complaints by disaffected consumers in particular circumstances. Claims that are wide-ranging are more likely to be found misleading as there is a greater risk that the claim cannot be substantiated by evidence, given how widely consumers can read into and rely on the claim being made.

7. Louis Vuitton, 26 May 2010

Two national press ads for Louis Vuitton:

a. The first ad featured a photograph of a woman stitching the handle of a handbag. Text underneath stated "THE SEAMSTRESS WITH LINEN THREAD AND BEESWAX. A needle, linen thread, beeswax and infinite patience protect each overstitch from humidity and the passage of time. One could say that a Louis Vuitton bag is a collection of details. But with so much attention lavished on every one, should we only call them details?"

b. The second ad featured a photograph of a woman creating the folds of a wallet. Text underneath stated "THE YOUNG WOMAN AND THE TINY FOLDS. In everything from Louis Vuitton, there are elements that cannot be fully explained. What secret little gestures do our craftsmen discretely pass on? How do we blend innate skill and inherent prowess? Or how can five tiny folds lengthen the life of a wallet? Let's allow these mysteries to hang in the air. Time will provide the answers".

Complaint/decision

Three complainants challenged whether the ads misleadingly implied that Louis Vuitton products were made by hand. The ASA upheld complaints against both adverts. The ASA considered that consumers would interpret the image of a woman using a needle and thread to stitch the handle of a bag in ad (a), alongside the claim "... infinite patience protects each overstitch ... One could say that a Louis Vuitton bag is a collection of fine details. But with so much attention lavished on every one, should we only call them details?" to mean that Louis Vuitton bags were hand stitched.

The ASA also considered that the image of a woman handcrafting a wallet using a basic manual tool in ad (b), alongside the claim "In everything from Louis Vuitton, there are elements that cannot be fully explained. What secret little gestures do our craftsmen discreetly pass on? How do we blend innate skill and inherent prowess" would be understood by consumers to mean that Louis Vuitton products were handcrafted, throughout most or all of the entire production process. The ASA had not seen documentation that detailed the entire production process for Louis Vuitton products or that showed the proportion of their manufacture that was carried out was by hand or by machine. As the ASA had not seen evidence that demonstrated the extent to which Louis Vuitton products were made by hand, it was concluded that the ads were misleading.

Louis Vuitton responded to the complaint, explaining that the images were posed by models and styled, but emphasising the craftsmanship involved in making their accessories and that the manufacturing process was not automated.

The ASA accepted that the images were stylised interpretations and that various handcrafting techniques were used. However, the ASA were concerned that they had not seen documentation that detailed the entire production process used (explained by Louis Vuitton on the basis that traditional skills were passed on and not documented). On this basis, the ASA upheld the complaint and found the ad to be misleading. This adjudication appears somewhat harsh in the circumstances, but highlights the importance of being able to substantiate, with verifiable evidence, images and implied claims communicated to consumers.

NON-COMMERCIAL

8. St Jude's Hospitals and Clinic, 5 May 2010

A prize draw advertised on the Internet, run by St Jude's Hospitals & Clinic, offered a free cycle of fertility treatment as a prize. The internet ad was headlined "Free fertility treatment at St Jude's" and stated " ... 'Three couples were today being offered the change [sic] of IVF treatment worth more than £13,000 for free by a Wolverhampton clinic ... Couples are asked to write into the clinic and explain why they should have IVF treatment. Three names will be drawn at random on December 12.' I [sic] you would like to be considered, please provide us with the following: Name and date of birth of each partner Contact address Telephone number Copy of one form of identification, for each partner ... Information can be provided by emailing us at ... Alternatively, you may write to us using the address on the contact page".

Complaint/decision

The complainant, who said she won the treatment but was later told she could not have the prize, thought the draw was misleading, because it did not make clear the terms and conditions attached to the prize.

The ASA upheld the complaint. The ASA considered that the requirement to attend an appointment to assess clinical suitability for IVF treatment was a significant condition which ought to have been made clear in the online prize draw details. The closing date for entries should also have been included.

In addition to the online details not stating the closing date or the requirement to attend an appointment to assess clinical suitability for IVF treatment, the ASA also understood that no terms and conditions were available for entrants to access at the time of entering the draw, or at any subsequent point. The ASA concluded that no terms and conditions had been officially drawn up. As a result the ASA considered that the prize draw and advert for it were likely to mislead and disappoint participants.

The decision on this somewhat unusual prize draw highlights the importance to advertisers running promotions and competitions to have a set of clear terms and conditions, available to all participants, and to ensure that significant conditions are included in any advertisements for a prize draw or other promotion.

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 28/06/2010.

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