UK: ASA Adjudications Snapshot - June 2010

Last Updated: 2 August 2010
Article by Susan Barty and Stuart Helmer

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

This month, the ASA gave particular consideration to the importance of substantiating claims, especially when making claims of an absolute nature. Interestingly, a common theme this month has been that edgier and riskier ads, which may potentially be construed as offensive by some, have been more leniently dealt with by the ASA. The approach adopted by the ASA in these cases has focused on considering the ads' context and style, along with the usual considerations of the advertiser's medium and target audience.

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

This month, the ASA gave particular consideration to the importance of substantiating claims, especially when making claims of an absolute nature. Interestingly, a common theme this month has been that edgier and riskier ads, which may potentially be construed as offensive by some, have been more leniently dealt with by the ASA. The approach adopted by the ASA in these cases has focused on considering the ads' context and style, along with the usual considerations of the advertiser's medium and target audience.

FOOD AND DRINK

1.    Red Bull Company Ltd, 23 June 2010  (Red Bull ad considered 'whimsical' and unlikely to cause harm or offence)

2.    Miller Brands (UK) Ltd, 30 June 2010 (alcohol ad unlikely to appeal to youth culture or promote drink driving)

3.    Burger King Ltd, 2 June 2010 (ads which do not feature explicit swearing are unlikely to cause harm or offence)

HEALTH AND BEAUTY

4.    L'Oreal (UK) Ltd, 2 June 2010 (shampoo ad featuring natural hair extensions found not to be misleading) 

5.    Vitabiotics Ltd, 30 June 2010 (claims referring to medicinal conditions must be substantiated with robust and verifiable evidence)

COMPARATIVE ADS

 6.    Scottish Power Energy Retail Ltd, 16 June 2010 (the claim "Your bills are falling" found to be misleading)

7.    Tesco Stores Ltd, 30 June 2010 (comparative ads between Supermarkets require clear and substantiated statements of fact)

8.    Costa Ltd, 16 June 2010  (comparative ad sufficiently substantiated so not found to be misleading) 

OTHER

9.    Vodafone Ltd, 16 June 2010 (the claim "can guarantee mobile signal" found likely to mislead) 

10.    Diesel (London) Ltd, 30 June 2010 (inappropriately targeted ads featuring provocative images) 

NON-COMMERCIAL

11.    Department of Health t/a NHS, 2 June 2010  (health warnings against alcohol found not to be misleading) 

12.    Lush Retail Ltd, 16 June 2010  (ads and sales promotion campaigns against hunting unlikely to provoke violence) 

FOOD AND DRINK

1.    Red Bull Company Ltd, 23 June 2010

A video on demand (VOD) ad, for the energy drink Red Bull, appeared on Demand Five during the programmes 'Neighbours', 'Home and Away' and 'The Mentalist'. The ad was in the style of a cartoon and showed a young boy feeding pigs Red Bull by pouring two cans of it into their trough. He walked into a house and said "Please mum, I really really want to go to the Gentlemen's Club." His mother replied "When pigs fly young man." She then exclaimed "Oh my!" as pigs with wings flew past the kitchen window. The ad ended with the young boy watching a woman in fishnet stockings who danced on a podium and draped her feather boa over him. A voice-over stated "Red Bull gives you wings."

Complaint/Decision

The complainant challenged whether the ad was irresponsible and offensive because it showed a young child in a sexual situation.

The ASA did not uphold the complaint. The ASA understood that, according to the information provided by Demand Five, 'Neighbours,' 'Home and Away' and 'The Mentalist' were not of particular appeal to children. The ASA considered that children were therefore unlikely to watch those same programmes on VOD and it would therefore be unlikely that children would have seen the ad.

The ASA also considered that although the notion of a child asking to go to a Gentleman's Club, and then apparently attending one, was incongruous and slightly unsettling, the cartoon depiction and 'flying pigs' scenario rendered the ad unrealistic and too 'whimsical' to cause mental or moral harm to children. 

The ASA concluded that although the creative idea might be seen as a dubious one by some, the ad was unlikely to be seen as irresponsible or to cause serious harm or widespread offence.

This decision highlights the readiness of the ASA to take a pragmatic approach on the question of serious harm or widespread offence and, in particular, the readiness to take into account the comical and animated nature of ads when deciding whether such ads could cause harm or offence.  It was also relevant in this decision that the ads only appeared on VOD services, which, in the ASA's opinion, was a factor in deciding whether children would be exposed to the ad. 

2.    Miller Brands (UK) Ltd, 30 June 2010

A poster for beer showed a Vespa scooter and a bottle of Peroni beer. The web address "peroniitaly.com" was included next to the bottle of beer and "drinkaware.co.uk" was stated in the bottom corner of the ad.

Complaint/Decision

The complainant challenged whether the ad was irresponsible, because it linked alcohol with youth culture and could promote drink driving.

The ASA did not uphold the complaint. The ASA noted that the Vespa was not moving, the bottle of beer was not open and no one was shown to be drinking. The ASA did not consider that the appeal of the Vespa was especially linked to youth culture, and noted that the Peroni Bottle and moped were presented in isolation as symbols of classic Italian design. It therefore concluded that the ad did not link alcohol with youth culture or promote drink driving.

This adjudication highlights the reasoning employed by the ASA when considering whether artistic visuals glamorise or promote alcohol.  Although the message in this ad could have been construed as one which promoted or condoned drink driving, the ASA took a pragmatic view in light of the stylised approach used by Miller Brands.

3.    Burger King Ltd, 2 June 2010

Three posters showed various images of Burger King's products, next to text such as "King tasty",  "King delicious" and "King great".  An internet audio ad, played on the music streaming site Spotify featured a conversation between a traffic warden and a motorist. The motorist said "Oh officer don't give us a ticket, I was just getting some king lunch." The traffic warden said "I can see that and it looks king good." The ad continued with several references to the word "king" being made. A voice-over then described the burger being advertised and stated "King tasty."

Complaint/Decision

The ASA received 52 complaints on the basis that the use of "king" in the ads was a reference to a swear word, and that the ads were unsuitable for children to see.

The ASA did not uphold any of the complaints. The ASA noted that although some readers might infer that the phrase "king" represented a swear word, the posters did not feature any explicit bad language and therefore the ads were unlikely to cause harm to children.  With reference to the ad on Spotify, the ASA noted that although some listeners might find the ad to be in poor taste, the ASA appreciated the ad was a comic scenario directed to an adult listenership. The ASA noted that Spotify was a subscription service and Spotify targeted ads according to the age of its users; as such, the Burger King ad was only delivered to users who were registered as being 18 or over. As such, the ASA concluded that the ad was unlikely to cause serious or widespread offence or harm to children.

This adjudication highlights the need for advertisers to avoid explicit references to swear words or offensive images, but also reflects the readiness of the ASA to accept ads where only subtle, adult-based humour is used, particularly where the ads are carefully targeted. As these ads did not explicitly or directly feature swear words, and as the images used were only available to adults on a registered service, the ASA held that the ads were unlikely to cause harm to children or widespread offence.

HEALTH AND BEAUTY

4.    L'Oreal (UK) Ltd, 2 June 2010

A TV ad, two posters and a magazine ad for hair care products, featured Cheryl Cole. In the TV ad she stated "Weak, limp, lifeless; it's time our hair got a life". The voice-over stated "New L'Oreal Elvive Full Restore five with pro-keratin for five top hair problems. It targets weak, limp, lifeless, dull and straw-like hair". Text on screen stated "Styled with some natural hair extensions".

Complaint/Decision

The ASA received 40 complaints, challenging whether the TV ads, poster campaign and magazine ad had misleadingly exaggerated the benefits of the products, and whether the TV ad was misleading as the product was not suitable for use with hair extensions.

The ASA rejected the complaints. The ASA considered that most consumers would interpret the ad to mean that the product would have an effect on the look and feel of hair that was weak, limp, lifeless, dull or straw-like. However, consumers were likely to understand that individual results would vary according to their own hair type. The ASA also noted that the text "Styled with some natural hair extensions" was sufficient to prevent viewers from being misled into believing that, just by using the product, they would replicate the fullness of Cheryl Cole's hair.

Interestingly, at the end of 2009 the ASA was widely reported as having rejected 13 complaints about a similar advert in a previous campaign for the same product featuring Cheryl Cole, on the basis that the on-screen disclaimer (which, similarly, stated that Ms Cole used hair extensions) was sufficiently clear and legible. 

Although the ASA has, on this occasion, decided to revisit this line of complaint and adjudicate upon the matter, its reasoning in deciding to reject the complaints remains consistent.  Advertisers should ensure that, where ads exaggerate the benefits or effects of products, such ads must contain sufficiently clear and legible on-screen qualifications, in order that claims are not automatically considered misleading.  The on-screen qualification in this advert was considered sufficiently clear.

5.    Vitabiotics Ltd, 30 June 2010

A national press ad for vitamin supplements stated "Diabetone comprehensive nutritional support for people with diabetes shown to help maintain well being in UK nutritional research".

Complaint/Decision

The complainant objected that the ad, as well as the name of the product, implied that taking the product could improve the health of diabetes sufferers.

The ASA upheld the complaint. The ASA noted the ad referred to diabetes, a serious medical condition, for which suitably qualified medical advice should be sought, and treatment carried out under the supervision of a doctor. The ASA was also concerned with the name of the product, Diabetone, as it implied the product was a treatment for diabetes.

The ASA considered that the summary of clinical trials provided was not sufficient to substantiate the claims in the ad, as they did not detail the methodologies used or provide sufficient information to show that the participants in the trials were otherwise healthy diabetics. Furthermore, the evidence provided did not examine the collective effect of the ingredients that were contained within the product. The ASA concluded that Vitabiotics had not substantiated that the product could maintain the physiological or psychological well being of people with type-2 Diabetes and could further discourage essential treatment.

This adjudication serves to remind advertisers of the importance of substantiating their claims with robust and verifiable evidence, especially when dealing with medical or pharmaceutical products. It is also important for advertisers to remember that the name of the product, as well as the way in which is it advertised, may be deemed to mislead.

COMPARATIVE ADS

6.     Scottish Power Energy Retail Ltd, 16 June 2010

A press ad for Scottish Power stated in the headline claim "Your bills are falling.*" The body copy stated "At ScottishPower we want you to feel warm all year round. That's why we're lowering our gas bills on average by 8%.* So now you can start warming to the idea of saving some money. Don't be left out in the cold, call us today". The asterisk in the headline claim linked to a footnote that stated "...*The 8% cut is based on our standard variable published offline gas bills at annual usage of 20,500kWh and is a rounded average across all supply areas and across Monthly Direct Debit, Standard Quarterly Cash/Cheque, Weekly and Prepayment methods."

Complaint/Decision

British Gas challenged whether the claim "Your bills are falling" was misleading, because it implied that all customers' bills would benefit from lower prices, which was not the case.

The ASA upheld the complaint. It considered that the claim "Your bills are falling" was an absolute claim that implied that all customers' bills were falling as a result of the changes in gas prices. The claim implied all customers would realise a saving, which was not the case, and therefore the ASA considered that the basis of the claim warranted an explanation within the headline claim. As no such explanation was contained within the headline claim, the ASA concluded that the ad was likely to mislead. 

This adjudication highlights the importance of advertisers taking care when making absolute claims, and ensuring that such claims are substantiated. If the claim requires qualification by some fact or circumstance, and such qualifications are not contained within the headline claim, then the advertisers run the risk of the claim breaching the Code.

7.    Tesco Stores Ltd, 30 June 2010

National press and TV ads by Tesco promoted a price comparison between products in their stores and in Asda supermarkets. The national press ad was headed "This Week's Results" and featured a stack of green Asda shopping baskets and a taller stack of blue Tesco shopping baskets. White text in a red circle over the green baskets stated "658,000 baskets cheaper". The red circle over the blue shopping baskets stated "1,117,000 baskets cheaper". Further text stated, "On Monday, when we compared prices with Asda, shopping was cheaper for more than a million Tesco customers. We compare every product our customers buy that we can match with an equivalent at Asda. This means we include more than half of everything our customers buy".

Complaint/Decision

Asda Stores Ltd (Asda) challenged whether the claims " ... we include more than half of everything our customers buy"" and the on-screen text "Equivalent products compared, covering over half of our customers purchases" were misleading because Tesco listed over 31,000 lines on Tesco.com, but only matched around 12,000 of those lines with Asda.

The ASA noted that the headline claim was "This Week's Results...1,117,000 baskets cheaper" and that the layout of the ad was not clear. With regards to the claim "This means we include more than half of everything our customers buy", the ASA held that, as it was not clear whether Tesco was comparing half of the contents of each basket, half the total purchases or half of the lines they stocked, the claim was ambiguous and therefore misleading. Further, as there were no criteria in place to set out what proportion of the contents of each basket needed to be matched in order for the basket to be included, the ASA considered that the references to baskets and the images of baskets were misleading.

This adjudication in the long-running battle between Asda and Tesco highlights to supermarkets and advertisers in general the requirement to provide clear and substantiated statements of fact when undertaking any comparative advertising campaign. It must be clear to consumers what is being compared with what, and how the comparison is measured.

8.    Costa Ltd, 16 June 2010

A poster, and a press ad for Costa coffee contained the claim  "7 out of 10 coffee lovers prefer Costa". Smaller print below stated "In head-to-head taste tests, 7 out of 10 coffee lovers preferred Costa cappuccino to Starbucks". A cup of coffee carrying Costa branding was shown. Text below stated "We Make It Better". Small print at the bottom of the poster said "Source ... In blind head-to-head taste tests between Costa's cappuccino and a cappuccino from Starbucks or Caffe Nero 70% of respondents who identified themselves as 'Coffee Lovers' preferred Costa cappuccino. Total sample size of coffee lovers = 174. For more information please visit www.costa.co.uk".

Complaint/Decision

Starbucks challenged whether the headline claim "7 out of 10 coffee lovers prefer Costa" in the ad was misleading, because they believed it implied a preference for all Costa products over those of their competitors when it referred only to cappuccinos. They considered that the qualifying claim "... 7 out of 10 coffee lovers preferred Costa cappuccino to Starbucks" was insufficiently prominent and contradicted rather than qualified the headline claim. Further, Starbucks challenged whether the ads, and in particular the headline claims, were misleading, because they believed the survey methodology on which the claims were based was flawed.

The ASA rejected the complaints. The ASA understood that the CAP Copy Advice team had advised that it would be acceptable for the headline claim not to refer to the fact that the preference related to cappuccinos specifically, as long as that was made clear in the qualifying text in the body of the ad. The ASA also noted the small print was clear and of a suitable size.

The ASA noted Starbucks' concern that the headline and qualifying claims were based on two different sets of results from the survey; those relating to participants who identified themselves as Starbucks drinkers and those relating to participants who identified themselves as 'coffee lovers'. In relation to the survey claims, the ASA took expert advice that had noted that the results of the survey were statistically significant and that the sample size was adequate.

The ASA also noted the qualifying claim "7 out of 10 coffee lovers prefer Costa cappuccino to Starbucks" was based on a different set of results from the survey. The ASA considered therefore that the relationship between the headline and the qualifying claim was unclear and was concerned that the presentation of the two claims could be confusing for consumers.  The ASA did note that the expert had concerns that there were weaknesses in the amount of reported detail on the methods used, and that, consequently, some of the information provided about the methodology had to be taken on trust. Nevertheless, because the results of the survey did support the claim that "Starbucks drinkers prefer Costa", the ASA concluded the headline claim was not misleading.

Even though the CAP Copy Advice team had advised on the advert, it would of course have been open for the ASA to reach a different conclusion.  Nevertheless, this is an example where the qualifying text did not contradict the main claim.

This adjudication provides useful guidance on what constitutes a suitable sample group and suitable 'fair test' conditions in relation to comparative claims. It is also interesting that, in the decision, the ASA accepted that the presentation of the claims could be considered confusing, but nonetheless did not uphold the complaint. This suggests that even where a claim may potentially be considered confusing, the ASA will not uphold a complaint if it is provided with sufficiently robust evidence to support the headline claim.

OTHER

9.    Vodafone Ltd, 16 June 2010

A poster for Vodafone showed someone leaning out of a window to get reception on their mobile phone. The ad stated "Only Vodafone can guarantee mobile signal in your home. Get Sure Signal at Vodafone.co.uk/suresignal".

Complaint/Decision

T-Mobile, O2 and two complainants objected that the ad was misleading because it did not make clear that broadband and a 3G handset were required to use Sure Signal. Further complaints challenged whether the claim "can guarantee mobile signal" could be substantiated and whether the ad was misleading because it implied Vodafone was superior to other networks, was capable of guaranteeing coverage to all customers, and did not make clear a particular product was being promoted.

The complaints were partly upheld. The ASA considered that the omission of a statement that a 3G handset and broadband were required to use Vodafone's Sure Signal (VSS) was likely to mislead. It also considered that the claim to "guarantee" a signal was unsubstantiated and likely to mislead, as Vodafone could not control the availability and performance of the broadband connection. The ASA also considered that Vodafone did not make it clear that it was advertising a new product, and that customers could mistake the VSS product to be a general superiority claim about Vodafone's ability to provide a signal to all customers in comparison to other networks; therefore it was likely to mislead. Furthermore the ad did not make clear it was a new product, therefore customers could be misled into thinking that the benefit of "guaranteed" signal was an inclusive feature of the Vodafone network available to all customers.

The adjudication shows the importance of advertisers making clear whether a product or service being advertised is a new product or line, and to state whether any additional features are required for its performance and/or delivery. It also signifies the dangers of making absolute claims, when in fact they are qualified by certain conditions. 

10.    Diesel, 30 June 2010

Two posters, a Dazed and Confused magazine ad and a Grazia magazine ad for a clothing company featured various provocative images alongside the headline "Smart may have the brains. But stupid has the balls. Be stupid. Diesel." For example, one poster featured an image of a woman standing outdoors in a bikini. The woman was shown holding open her bikini bottoms with one hand and taking a photograph of her genitals with the other.  Another poster featured an image of a woman on a stepladder who was lifting her top and exposing her breasts to a security camera.

Complaint/Decision

The ASA received 33 complaints on the basis that the ads were unsuitable for children, offensive and encouraged anti-social behaviour. The ASA partly upheld the complaints. The ASA acknowledged that none of the ads showed full frontal nudity but considered that both posters contained sexual undertones. The ASA noted that both posters appeared in an untargeted medium that was difficult to avoid, and were therefore likely to be seen by children. Further, the ASA considered that both posters could cause widespread offence, and that images of young women photographing their genitalia and exposing their breasts were unsuitable to be displayed on posters.

With respect to the magazine ads, the ASA concluded that the ads were unlikely to cause offence or be seen by children as the publications were aimed specifically at adults. However, as the images in the ads appeared realistic, the ASA considered the image portrayed a socially challenging action that might appeal to the younger consumer, encouraging irresponsible or anti-social behaviour.

This adjudication serves as a useful reminder to advertisers to target their audience carefully and appropriately, in particular to ensure that anything with sexual or violent undertones is not targeted towards individuals under the age of 18.  Advertisers should also ensure that their ads comply with the 'social responsibility' provisions of the CAP/ BCAP codes, particularly in light of the ASA's focus on this area in the revised codes.

NON-COMMERCIAL

11.    Department of Health t/a NHS, 2 June 2010 

A TV ad for a National Health Service (NHS) alcohol awareness campaign featured two women sharing a bottle of wine. One woman was shown as semi-translucent so her internal organs and skeleton were visible. The voice-over stated "If you're a woman drinking two large glasses of wine or more a day, you could be putting your health at risk ... you're three times more likely to get mouth cancer." On-screen text stated "Women drinking 40g+ of alcohol/day. Source: Department of Health analysis of 'Corrao, 1999'".

Complaint/Decision

Two complainants challenged whether the claim "you're three times more likely to get mouth cancer" could be substantiated.

The ASA rejected the complaints. The ASA noted that meta-analysis was used to support the claims made in the ad, and did not object to the use of meta-analysis so long as the review itself was robust and relevant and its conclusion reflected in the ad. The ASA noted that the study provided showed that the relative risk of developing mouth cancer had indeed increased by three times following wine consumption, and that this figure had a 95% confidence level. The ASA considered, therefore, that there was medical consensus on the causal link between high alcohol consumption and the risk of developing mouth cancer. The ASA also noted that the ad was phrased conditionally; "If you're a woman drinking two large glasses of wine or more a day, you could be putting your health at risk ... you're three times more likely to get mouth cancer", which the ASA considered was appropriate within the context of assessing the relative risk of developing cancer.

The ASA can at times be regarded to be taking a less rigid approach  where adverts are considered for the public benefit, particularly on health and safety issues.  Nevertheless, this adjudication serves to remind advertisers of the importance of using robust evidence to verify claims made, and phrasing claims conditionally where necessary so as to prevent claims from misleading consumers.

12.    Lush Retail, 16 June 2010

A leaflet and postcard distributed in Lush stores, and an online sales promotion, contained various information about the hunting ban and the Hunt Saboteurs Association (HSA), and contained headlines such as " Hunting Ban, what hunting ban?", and  "The hunts are still at it! The foxes still need your help!"   The leaflet and online sales promotion also contained the text "If you want to get involved in direct action..." and "...the hunt sabs take direct action to save animals...".

Complaint/Decision

The ASA received 129 complaints on the grounds that the leaflet and online sales promotion were irresponsible, because the claims promoted direct action against hunting and were likely to provoke violence.

The ASA rejected the complaints. It noted that the leaflet and online sales promotion invited consumers to become involved in direct action by joining the HSA by either supporting them financially or by becoming a hunt saboteur. They noted there were no descriptions of violent acts in the ads and that the ads referred to using "peaceful means to protect wild animals" and "non-violent means to protect hunted animals" respectively. The ASA did not therefore consider that the ads suggested that violence would be used to achieve the HSA's aims or that such acts would be required when joining or supporting the HSA. Therefore, the ASA concluded that the ads did not condone, or were likely to provoke, violence.

The adjudication is particularly interesting both because of the high volume of complaints it received, and also because of the ASA's focus on issues of social responsibility which appears as a core theme in the new CAP/ BCAP codes.  Advertisers should ensure that their ads cannot be construed as encouraging or condoning any form of anti-social behaviour.

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 30 July 2010.

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From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.