UK: ASA Adjudications Snapshot – July 2010

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

This month, the ASA gave particular consideration to the targeting and nature of adverts when assessing whether adverts could cause harm or offence. A number of the adjudications highlight the importance the ASA places on humour and imagery of adverts, and the style and nature of the depictions when assessing the risk of causing serious harm or widespread offence to consumers.

Click here to view the snapshot in full.

FOOD AND DRINK

1. Pepsico International, 14 July 2010 (Pepsi Max advert considered too fantastical to cause harm or offence)

2. Tesco Stores Limited, 21 July 2010 (considered the claim "Fresh bread. Baked from scratch in our in store bakery" misleading)

HEALTH AND BEAUTY

3. L'Oreal (UK) Limited, 7 July 2010 (TV advert for skin cream found the claim "inspired by the science of genes" not to be misleading)

4. Simply Organic, 28 July 2010 (considered that claims "Simply Organic" and "Naturally Organic" were likely to mislead)

5. Healthy Bowels Company Limited, 21 July 2010 (product-specific evidence required to support health claims)

OTHER

6. Virgin Media Ltd, 28 July 2010 (considered the claims" For a one-off set up fee of £49" and "No monthly fee" misleading)

7. Wonga.com Ltd, 14 July 2010 (TV advert for loan company trivialised the nature and implications of the product)

8. Paddy Power plc, 21 July 2010 (TV advert found not to be offensive when referring to or involving people with a disability)

9. ASDA Stores Ltd, 14 July 2010 (TV advert breached Code by presenting rights given to consumers in law as distinctive features of the adverts offer)

10. BMW (UK) Ltd, 28 July 2010
("green claims" considered to be misleading)

NON-COMMERCIAL

11. Telegraph Media Group t/a The Daily Telegraph, 21 July 2010 (definition of "free" considered)

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Full Article

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

This month, the ASA gave particular consideration to the targeting and nature of adverts when assessing whether adverts could cause harm or offence. A number of the adjudications highlight the importance the ASA places on humour and imagery of adverts, and the style and nature of the depictions when assessing the risk of causing serious harm or widespread offence to consumers.

FOOD AND DRINK

1. Pepsico International, 14 July 2010
(Pepsi Max advert considered too fantastical to cause harm or offence)

2. Tesco Stores Limited, 21 July 2010 (considered the claim "Fresh bread. Baked from scratch in our in store bakery" misleading)

HEALTH AND BEAUTY

3. L'Oreal (UK) Limited, 7 July 2010
(TV advert for skin cream found the claim "inspired by the science of genes" not to be misleading)

4. Simply Organic, 28 July 2010 (considered that claims "Simply Organic" and "Naturally Organic" were likely to mislead)

5. Healthy Bowels Company Limited, 21 July 2010 (product-specific evidence required to support health claims)

OTHER

6. Virgin Media Ltd, 28 July 2010
(considered the claims" For a one-off set up fee of £49" and "No monthly fee" misleading)

7. Wonga.com Ltd, 14 July 2010 (TV advert for loan company trivialised the nature and implications of the product)

8. Paddy Power plc, 21 July 2010 (TV advert found not to be offensive when referring to or involving people with a disability)

9. ASDA Stores Ltd, 14 July 2010 (TV advert breached Code by presenting rights given to consumers in law as distinctive features of the adverts offer)

10. BMW (UK) Ltd, 28 July 2010
("green claims" considered to be misleading)

NON-COMMERCIAL

11.
Telegraph Media Group t/a The Daily Telegraph, 21 July 2010 (definition of "free" considered)

FOOD AND DRINK

1. Pepsico International, 14 July 2010


A TV and Video on Demand (VOD) advert for Pepsi Max showed a woman and a man sitting near each other at a bar. A breaking news story then played on the bar's TV and a reporter said "I can now officially confirm that a huge asteroid is on a collision course with Earth and will destroy all life". The reporter then said "Reach out to someone, anyone who's near, show them you love them. Don't be alone". The woman and the man then looked at each other for a moment before she ran towards him and they kissed as they fell to the floor. The advert then cut to the bar's kitchen where the barman and the reporter from the TV were shown in a fake news studio. They were revealed to be friends of the man from the bar as he walked in. The "reporter" asked him "And?", the man replied "Thank you guys, I love you". Music played and all three men were then shown dancing and drinking the product. On-screen text stated "MAX IT!" above a product shot.

Complaint/decision

The ASA received 49 complaints, challenging whether the advert was harmful because it condoned deception as a means of obtaining sex, condoned rape and promoted casual sex. The advert was also challenged for being offensive because it was believed the advert was sexist, portraying women as sex objects and men as sexual predators.

The ASA rejected the complaints. The ASA considered the advert to be too fantastical to be imitated by viewers. The ASA also noted that the men in the advert did not use physical coercion and the woman had chosen to run to the man. The ASA considered that the woman was shown to take the initiative in the encounter rather than being depicted as intimidated or acting against her will. The ASA therefore concluded the advert was not harmful in the manner suggested by the complaints.

In addition, the ASA noted that serious coercion or violence was not used, threatened or implied. The men were depicted as comic rather predatory. It was also noted that the woman was not depicted as any less intelligent than the other patrons, and therefore the ASA did not consider the advert was sexist towards either her or women in general.

This shows that advertisers should be aware of the risk of complaints being made with adverts involving even a light sexual reference. However, even though these adverts can attract relatively high numbers of complaints the ASA will generally take a balanced approach in its adjudications.

2. Tesco Stores Ltd, 21 July 2010

A press advert stated "Fresh bread. Baked from scratch in our in store bakery. Using 100% British flour. So every single loaf is genuinely British ... Born and bread".

Complaint/decision

The complainant challenged whether the advert misleading implied that bread was "Baked from scratch" in all stores, whereas the complainant understood only 480 Tesco stores baked bread.

The ASA upheld the complaint. The ASA considered the claim "Fresh bread. Baked from scratch in our in store bakery. Using 100% British flour. So every single loaf is genuinely British ... Born and bread" was likely to be interpreted as meaning that all Tesco strores with an in-store bakery baked their loaves from scratch. Although most Tesco stores had a bakery facility, the ASA understood that only 504 stores baked bread "from scratch", and the claim was therefore misleading.

The decision warns advertisers to be careful when making somewhat general claims about their products, ensuring claims are not so widely construed as to mislead consumers.

HEALTH AND BEAUTY

3. L'Oreal (UK) Limited, 7 July 2010

A TV advert for a skin cream opened with the on-screen text "Inspired by the science of genes". A male voice-over stated "Inspired by the science of genes, L'Oreal unlocks Youth Code. Discover our first cream enriched with patented pro-gen technology".

Complaint/decision

Four complainants challenged whether the claim "Inspired by the science of genes" was misleading because it implied the product had a basis in genetic science.

The ASA noted that as the claim "Inspired by the science of genes" referred to L'Oreal's previous research rather than a claim that the cream re-awakened skins youthfulness, viewers would understand the claim to mean that L'Oreal had incorporated ingredients into the cream to help improve skin condition, rather than it meaning it had a proven basis in genetic science. The ASA concluded the claim "inspired by the science of genes" was therefore not misleading in the context of the advert.

Although the ASA did not consider the claim in this advert to be misleading, it is significant to note that, had the advert referred to benefits of the cream which were based on genetic science, the ASA would have required verifiable scientific evidence to substantiate such claims.

4. Simply Organic, 28 July 2010

A magazine advert for organic hair products called Simply Organic was headlined "Naturally Organic ... Simply!" and included a logo which stated "Simply Organic".

Complaint/decision

The complainant objected whether the claims "Simply Organic" and "Naturally Organic" were misleading because they implied they met an independent organic standard.

The ASA upheld the complaint. It considered that readers would understand the claims "Simply Organic" and "Naturally Organic" to mean the "Simply Organic" product range met an independently defined organic standard. The ASA understood that there was no UK standard for organic hair products and did not consider that it had been given sufficient documentation by Simply Organic to show that the advertised product range was certified organic by an independently defined or an established US standard, which was relied upon by the advertisers. The ASA therefore considered the claims "Simply Organic" and "Naturally Organic" misleading.

This adjudication serves to remind advertisers of the importance of accurately labelling products to avoid misleading consumers. Terms such as "organic" are always strictly construed by the ASA. Advertisers using words and labels referring to the "organic" nature of any product should always therefore ensure that the claim is adequatley substantiated or that the prodcut is certified as organic so as to avoid misleading consumers.

5. The Healthy Bowels Company Ltd, 21 July 2010

A magazine advert for a fibre supplement stated "Healthy bowels? ... taking Lepicol, a totally natural product, with its combination of gentle plant fibres, probiotic cultures and prebiotics, can make it easier to keep your bowels healthy".

Complaint/decision

The complainant challenged whether the claim "Lepicol...can make it easier to keep your bowels healthy" could be substantiated, and whether the claim "Lepicol, a totally natural product" breached the Code because it implied it was effective merely because it was natural.

The ASA upheld the first challenge, regarding the claim that "Lepicol...can make it easier to keep your bowels healthy" as it expected to see product-specific evidence to support the claim. The ASA had not seen evidence to demonstate that the specific composition of Lepicol could improve or maintain bowel health and therefore concluded the claim "Lepicol...can make it easier to keep your bowels healthy" had not been substantiated and was therefore likely to mislead.

However, the ASA did not uphold the second complaint regarding the claim "Lepicol, a totally natural product". There was no actual challenge to the claim that the product was natural, only as to whether it was effective because it was natural. The ASA considered that the advert did not go so far as to suggest that Lepicol was efficacious simply because it was natural. Therefore the advert had not breached the Code on that point.

This decision shows the need for advertisers to produce product-specific evidence to support health claims linked to their product. However, it is interesting to consider this advert and decision with the "Simply Organic" decision above. "Natural" is a term that also needs to be used by advertisers with care, as it is likely to be open to challenge, particularly where claims suggest that products are made with 100% natural ingredients. Both decisions highlight the need to take care when using these sorts of terms.

OTHER

6. Virgin Media Ltd, 28 July 2010

Two press adverts and one TV advert for Virgin Media (VM) HD TV. The first and second press adverts stated in the headline "World Cup in Amazing HD. No monthly fee". The body copy stated "For a one-off set up fee of £49, you can enjoy the excitement of the World Cup on ITV1 and BBC HD with no extra monthly cost". The footnote stated "No monthly fee for HD channels when you subscribe to any TV package. Standard installation fee (£35) remains payable".

The TV advert showed a family watching TV. The on-screen text stated "Usual monthly costs apply. Install fee £49 standard setup. HD ready TV required". The voice-over went on to state "With Virgin Media you get amazing HD for no extra monthly fee" and on-screen text appeared that stated "Amazing HD, No monthly fee".

Complaint/decision

The complainants, including BSkyB, challenged the claims, " For a one-off set up fee of £49" and "No monthly fee" which they considered to be misleading because they omitted to mention important qualifications.

The ASA upheld the complaints. The ASA noted that marketers often placed their installation fee within the small print and considered that in most cases that was likely to be acceptable. However, because the overall message of the advert was that consumers could receive HD channels for little cost, and the advert referred to a set-up fee that consumers could infer was the only applicable charge, the ASA considered the existence of an additional installation fee contradicted the main message and was therefore likely to mislead.

The ASA also considered the claim "No monthly fee" implied there would be no monthly cost to receive HD channles, which was not the case because customers were required to pay a monthly subscription cost for the TV package. In the absence of further clarification, the qualifying text "no monthly cost" contradicted the overall claim "No monthly fee", and gave the impression that there was no cost obligation over and above the set-up fee of £49. The ASA therefore concluded the claim "No monthly fees" in all three adverts was likely to mislead.

The decision shows the importance the ASA places on the overall message of the advert. Advertisers should ensure that qualifications made to claims, in the small text, do not contradict the main claims being made and the overall message of the advert, so as to mislead the consumer.

7. Wonga.com Ltd, 14 July 2010

A TV advert, for a loan company, showed a man who spoke as two different characters. He said "I need to borrow seventy pounds today. Of course, I could ask my bank ... "; laughter played in the background. He continued " ... I can help, just visit my website. Blimey, where did you come from? I'm always here. And you are? ... Wonga.com money made simple ... ". Text on screen stated "£70 for 5 days = £9.22. Total repayable £79.22...fast and flexible loans @ Wonga.com".

Complaint/decision

The ASA received 63 complaints about this particular advert. Viewers challenged whether the light-hearted presentation of the advert was likely to mislead vulnerable viewers about the nature and implications of the product. The ASA also challenged whether the advert complied with the Consumer Credit (Advertisements) Regulations 2004 and the Consumer Credit Act 1974.

The ASA upheld both grounds of complaints. The ASA noted that the tone of the advert, which included light-hearted background music, colourful imagery, laughter related to the concept of obtaining a loan from a bank and a seemingly casual conversation gave the general impression that the service offered was a trivial one. The ASA considered in particular the statements "Wonga.com money made simple", was likely to be interpreted to mean that the solution to money problems was a simple one; and the advert suggested the decision to take the loan did not need to be carefully considered. On this basis, the ASA concluded that the light-hearted tone of the advert was likely to mislead about the nature and implications of the product.

The ASA also found that the typical APR stated in the advert should have been given greater prominence than the spoken statement and on-screen text "£70 for 5 days = £9.22. Total repayable £79.22..."

This decision shows the ASA taking into consideration the subject matter as well as its audience when evaluating the nature and style of the advert, and as to what is appropriate and as to whether it might mislead. In this case the ASA considered that the overall style of the advert trivialised the nature of the debt service being offered.

8. Paddy Power plc, 21 July 2010

A TV advert for a bookmaker showed a game of football being played by two teams of blindfolded men, using a ball which had a bell inside it. The advert opened with a shot of a kitbag marked "Blind Wanderers FC". One player kicked the ball off the pitch and a cat, wearing a bell on its collar, ran on to the pitch and ran across it, with its bell ringing... one of the men was shown taking a kick and a thud and loud meow were then heard, although no contact between the player and the cat was shown on screen. A man in a suit appeared on the pitch, patted the shoulder of the player who had taken the kick and said "Paddy Power can't get Tiddles back, there's nothing we can do about that, but we can get you your money back with our money-back specials" and handed the player some bank notes. The man looked upwards...there was a shot of the cat walking along the brach of a tree, meowing.

Complaint/decision

Paddy Power are well known for producing entertaining, but at times potentially controversial adverts. However, in this instance the ASA received over 1000 complaints. Over 200 viewers objected that the advert was offensive to blind people, and over 1000 viewers objected that the advert was offensive and harmful because it might encourage cruelty to animals. Adverts featuring animals in this way are always liable to receive complaints.

The ASA rejected all complaints on both counts. In the first instance the ASA acknowledged that it was not offensive or disrespectful in itself to create an advert referring to or involving people with a disability. Paddy Power were able to produce a letter from the Manager of the England Blind Football team who supported the advert. Indeed all the players were blind footballers and a number of them represented the England team. The ASA concluded that most viewers would interpret the advert as a humorous depiction of a fictional situation. The ASA considered it was unlikely to be seen by most viewers as malicious or to imply that blind people were likely to cause harm to animals whilst playing football.

The ASA also noted the advert was not aimed at children and not shown in and around children's programmes. The nature of the advert was surreal and improbable and the action did not directly show any footballers making contact with the cat and ultimately (and probably importantly) the cat was clearly and deliberately shown to be unharmed. Therefore the ASA considered it unlikely that it would encourage or condone cruelty to animals, and therefore unlikely to cause widespread harm or offence.

9. ASDA Stores Ltd, 14 July 2010

A TV advert, for the clothing range George at ASDA. The voice-over stated "At George, we know what makes a difference; the quality and feel of the fabric, the stylish cut, the stitching, colours that stay colourful, extensive testing and the finer details. And that's why, at George, we now offer a one hundred day quality guarantee on all our clothes, so you can enjoy quality that lasts." Further on-screen text stated "From 8th March. Retain proof of purchase". The final shot showed a circle logo with the words "100 DAY QUALITY GUARANTEE. George" written inside it.

Complaint/decision

A viewer objected that the claim "... at George we now offer a one hundred day quality guarantee on all our products" was misleading, because they believed that under the Sale of Goods Act consumers had more time to return items that were not of an acceptable quality.

The ASA upheld the complaint, despite the advertiser's assurance that the 100-day guarantee was designed to provide enhanced rights beyond a consumer's statutory entitlement. The ASA understood that consumer protection legislation (the Sale of Goods Act as amended by the Sale and Supply of Goods Act) required sold goods to be of satisfactory quality and, under that legislation, a consumer had six years to bring an action for breach of contract. We also understood that, for the first six months, if a consumer complained the quality was not satisfactory, the onus was on the seller.

The ASA concluded the advert was likely to mislead by giving the impression consumers only had 100-days in which to return faulty products, when that was not the case. The decision warns advertisers that presenting rights given to consumers as distinctive features of the advertiser's offer may, in fact, be a breach of the Code, and that words should clearly explain where rights are being enhanced as a result of any such guarantee and should make clear that the customer's statutory rights are not affected.

10. BMW (UK) Ltd, 28 July 2010

A press advert for BMV stated "100% Joy 0% Emissions". The advert went on to state "The BMW Concept ActiveE is the first BMW to be powered purely by electricity ... Thanks to its electrifying performance and zero CO2 emissions when driving, the ActiveE redefines BMW EfficientDynamics".

Complaint/decision

The complainant challenged whether the claims "0% Emissions" and "zero CO2 when driving" were misleading.

The ASA upheld the complaint. The ASA understood that the BMW Concept ActiveE was a concept car that needed to be powered by electricity to operate. The vehicle was only able to operate because it had been charged with electricity which would result in the production of emissions, contrary to the claim "0% Emissions".

The ASA considered the inclusion of the phrase "when driving" was contradictory to the overall 0% emission claims and the impression that the cars use would not result in the production of emissions. The ASA therefore concluded that both claims were likely to mislead.

BWM (UK) Ltd also received a similar challenge in relation to another advert (ASA adjudication 21 July 2010). The complainant challenged whether BMW's use of the phrase "Efficient Dynamics" alongside the quoted figure (C02 emissions 210g/km) was misleading as it implied that C02 emissions levels of 210 g/km were low when in fact that emission rate was relatively high. The ASA acknowledged that, based on evidence submitted the particular car being advertised had lower C02 emissions than previous models and lower emissions than five other vehicles in the same category. However the ASA considered an emission rate of 210 g/km was relatively high for any car, and therefore concluded the advert was likely to mislead without further qualification.

This decision serves to remind advertisers to be especially careful when making environmental claims, particularly when advertising high performance cars, ensuring that claims are accurate and qualified when necessary.

NON- COMMERCIAL

11. Telegraph Media Group t/a The Daily Telegraph, 21 July 2010

A front-page flash on the Sunday Telegraph stated "Free Inside Dr Who Audiobook read by David Tennant". Further details about the promotion inside the paper stated "Free Audiobook tomorrow Part 2 read by David Tennant... Pick up at WH Smith or we can post you the whole set*".

The terms and conditions to the promotion, stated "This week, you can complete your collection with a new, free Doctor Who audiobook... Cut out the coupon every day and present it at your nearest WH Smith high street store to claim that day's free audiobook. Alternatively, we can post you the whole set ... Fill in any one of the coupons printed until Friday, and send it along with payment of £12.99 (inc postage)...".

Complaint/decision

The ASA received two complaints. One complainant challenged whether the front-page flash on the Sunday Telegraph was misleading, because it did not make clear that the audiobook came in two parts and that part two would be included in Monday's paper. Another complainant challenged whether the claim that the audiobooks were "free" was misleading, because customers who did not live near a WH Smith store would have to pay £12.99 to receive the audiobooks by post.

The ASA upheld both complaints. The ASA considered that the front-page flash "Free Inside Dr Who Audiobook implied that a complete audiobook was available inside the newspaper. The ASA understood, however, that the claim related to the first part of the story only and that the second part was redeemable at WH Smith the following day. As that significant qualification to the offer was not made clear to readers at the point at which they were introduced to the offer, the front-page flash was misleading.

The ASA considered that the claim "Pick up your free Doctor Who audiobook today. Pick up from WH Smith or we can post it to you" would be understood by consumers to mean that the audiobooks themselves were free regardless of whether they chose to collect them in store or by post.

The ASA noted the CAP Code stated that an offer should be described as free only if consumers paid no more than the minimum unavoidable cost of responding to the promotion, such as the current public rates of postage or the cost of any travel involved in collecting the offer. The ASA noted that they had not seen evidence that demonstrated that £12.99 represented the minimum cost of postage for the audiobooks, and also noted the terms and conditions to the offer stated "... Fill in any one of the coupons printed until Friday, and send it along with payment of £12.99 (inc postage) ...", which they understood to mean that the £12.99 fee included a charge for the cost of the audiobooks themselves. The ASA therefore considered that the audiobooks were not free to those consumers who took up the offer through the postal route. As the audiobooks were not free to all respondents, the ASA concluded that the claim that the audiobooks were "free" was misleading.

The adjudcation is useful as it provides guidance to advertisers when using the word "free" when presenting promotional offers to its readers and/or viewers.

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 19 August 2010

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You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions