UK: ASA Adjudications Snapshot - February 2011

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

This month the ASA adjudicated upon a number of key issues including "number one" and other comparative claims, online sales promotions and competitions and advertisements which may offend or make reference to particularly sensitive subject matter.

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Full Article

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

This month the ASA adjudicated upon a number of key issues including "number one" and other comparative claims, online sales promotions and competitions and advertisements which may offend or make reference to particularly sensitive subject matter.

ADJUDICATIONS

LEISURE

  1. Fox Mobile Distribution GmbH, 23 February 2011 (advertisements that touched on terrorist themes deemed unlikely to cause serious or widespread offence)
  2. MyCityDeal Ltd t/a Groupon UK, 9 February 2011 (the words 'up to' must be included in advertisements which offer products at prices which are subject to variation)
  3. ESPN Ltd, 16 February 2011 (advertisement showing a woman hitting a man with a pair of trainers outside of scheduling restrictions deemed not in breach)
  4. News Group Newspapers Ltd, 9 February 2011 (changes made to an internet competition promotion after launch deemed unfair, despite changes being published on advertiser's website)

HEALTH AND BEAUTY

  1. Healthspan Ltd, 23 February 2011 (brand names deemed not misleading on the basis of clear disclaimer wording which made clear the purpose and benefits of the products)
  2. YSL Beaute Ltd, 2 February 2011 (an actress's actions in a TV advert simulated drug use, and was therefore deemed 'irresponsible and unacceptable for broadcast')
  3. Seven Seas Ltd, 2 February 2011 (there must be sufficient substantiation behind advertisements claiming that medical products will be medically beneficial to the purchaser)

RETAIL

  1. ASDA Stores Ltd, 2 February 2011 (guidance on the 'overall impression of the advert' in relation to price comparison claims)
  2. Post Office Ltd, 16 February 2011 (claim of being the "UK's number one travel money provider" was not misleading)

OTHER

  1. Bargain Booze Ltd, 16 February 2011 (advertisement which offered one year's worth of free alcohol not in breach, despite being targeted at students)
  2. Moneysupermarket.com Ltd, 2 February 2011 (comparative claim misleading on the basis of out-of-date and insufficient evidence, despite being given clearance by Clearcast)
  3. HomeForm Group Ltd, 2 February 2011 (discounted prices advertised deemed not to be genuine and incompatible with BERR Pricing Practices Guide)

LEISURE

1. Fox Mobile Distribution GmbH, 23 February 2011

This adjudication concerned an advert on YouTube for ringtones that featured the comic Jeff Dunham with his ventriloquist dummy, "Achmed, the Dead Terrorist" which included the words "Silence! I kill you", "Stop touching me" and "Knock, knock.  Who's there? Me.  I kill you".  A viewer challenged whether the ad was offensive because he believed it was racist towards Muslims.

Complaint/Decision

The complaint was not upheld.  The ASA decided that although some people may be offended by the character and the comedy theme of terrorism: (1) the character's head dress could not be identified as being the clothing of any particular religion, (2) the text used in the advert was unlikely to be taken seriously by viewers, (3) the advert was an accurate representation of the product, and (4) the advertisement did not contain direct reference to terrorism or to Muslims.

This adjudication highlights that, even where advertisements contain potentially distasteful or sensitive subject matter, the ASA may be willing to take a lenient approach provided that the content of the advertisement accurately reflects the nature of the product.

2. MyCityDeal Ltd t/a Groupon UK, 9 February 2011

MyCityDeal stated on its website "Today's deal: £24 instead of £92 for a four course meal for two, a bottle of wine or two pints of any alcoholic or soft drink at the multi award winning, Waggon and Horses – Save 74%".

Complaint/Decision

One person complained that the advert was misleading because he believed that the saving that could be made by accepting this offer was overstated.

Groupon UK informed the ASA that it calculated the offer price on the basis of the most expensive items available in exchange for the voucher, and stated that they had followed a previous ASA adjudication on a similar case (which had suggested that the fine print could state the most expensive items available from the menu) when formulating this offer.

The ASA upheld the complaint on the basis that the advertisement was misleading.  The ASA noted that, since customers were able to choose items on the menu that were of different prices, and that some items may not be available on any particular day, the total cost of the meal would not always reach the £92 mentioned in the advert.  Therefore, the 74% saving would not always be achieved by customers.  The words 'up to' should have been placed before the reference to the amount to be discounted, and the advert should have made clear that the projected saving was based on the most expensive items on the menu. 

This adjudication reminds advertisers to ensure that they include detailed and accurate information relating to the basis of any promotions, particularly where certain discounts may not always be available to all consumers.

3. ESPN Ltd, 16 February 2011

This adjudication concerned a TV advertisement for the footwear store Foot Locker UK Ltd, that featured a man attempting to guess the makes of different trainers as a woman hit him with them across his backside.  The text used in the advert was "Foot Locker.  It's a sneaker thing".

Complaint/Decision

A complaint was made by a viewer that the advertisement should not have been scheduled to be shown at 11am, as it was inappropriate and distressing for children.

The ASA rejected the complaint.  It considered that the advert did not contain a realistic and disturbing portrayal of violence, and therefore it would not have an adverse effect on child viewers.  Although the ASA acknowledged that the advert was not suitable for very young children to see, it noted from audience data that general viewing figures (for all viewers) were very low at that time of day, and that the likelihood of young children viewing the advert was very low.

Of particular interest to advertisers is the fact that even though the ASA noted that ESPN had not adhered to Clearcast's post-7:30pm scheduling restriction when broadcasting this advert, the ASA did not find the timing of the broadcast to be unacceptable.  However, whilst this adjudication reflects a somewhat lenient approach adopted by the ASA, the case was considered and decided on the basis of its own specific facts.  Advertisers should be careful, therefore, not to ignore scheduling restrictions on this basis.

4. News Group Newspapers Ltd t/a The Sun, 9 February 2011

The ASA reviewed an internet sales promotion concerning a prize competition, for which entrants were asked to submit a video or photo of their favourite rollercoaster moment for the chance to win a holiday.

Complaint/Decision

Two complaints were made to the ASA that the prize promotion was unfairly administered because the number of finalists that were chosen (fourteen) did not reflect the number stated in the terms and conditions (five).

The ASA decided that posting the amendments to the terms and conditions on the competition website alone did not provide sufficient notice of the changes to the participants who had already submitted an entry.  The ASA therefore upheld the complaint, because it considered that such entrants would be disappointed to find that more finalists would be selected, as their chances of winning would be reduced.  As such, there was a disparity between the criteria used at each stage of the competition process.

Although the ASA has made it clear that the use of the competition/offer website alone would be insufficient for the purposes of notifying consumers of changes, it is not clear what advertising approach would be acceptable for these purposes.  Advertisers should be wary of making changes to the terms of any promotional competitions, or indeed offers, after the entry/offer period has commenced. 

HEALTH AND BEAUTY

5.  Healthspan Ltd, 23 February 2011

This adjudication concerns an advertisement for nutritional supplements in a mail order catalogue, which promoted products such as "Optiflex Glucosamine®", "Heart Synergex®" and "Brain Synergex®", and included descriptions relating to each product.

Complaint/Decision

A complaint was made on the grounds that product efficacy was suggested in the names of the products, which caused the adverts to be misleading, and that the adverts for "Heart Synergex®" and "Brain Synergex®" might discourage readers from obtaining medical treatment where necessary.

The ASA did not uphold the complaint.  Healthspan had, following advice from CAP, included disclaimers in its advertisement for Optiflex Glucosamine® that stated "Not clinically proven to optimise flexibility". Copy Advice found that the word "Synergex" does not imply efficacy, and Healthspan had included an accompanying statement in the catalogue which alluded to the fact that Healthspan products were supplementary to necessary medical advice.

This adjudication shows the value to advertisers of including clear disclaimer wording, particularly in cases where product names are featured which could otherwise mislead consumers as to the benefits of such products.

6. YSL Beaute Ltd t/a Yves Saint Laurent Parfums, 2 February 2011

The ASA reviewed a TV advert for Belle D'Opium perfume which featured a woman dancing and then running her finger along the inside of her arm from her elbow to her wrist.  The camera angle then changed to show her lying on the floor, whilst the words "I am your addiction, I am Belle D'Opium. The new fragrance by Yves St Laurent" are spoken.

Complaint/Decision

The ASA received thirteen complaints about this advert, citing it as being irresponsible and that its simulation of drug use was offensive.

The ASA upheld the complaints.  It considered that the woman's movements in the advert, which was apparently choreographed to show that the perfume was powerful and intense, and were suggestive of the addictive qualities of drugs such as opium.  It also decided that the running of the woman's finger down her arm could be viewed as a simulation of the injection of drugs, and the fast scenes at the end of the advert before the woman's body seized up simulated the effect of drugs on the body.

This adjudication shows the sensitivity of the ASA to issues such as drug use, and that even stylised portrayal of images may risk an adverse adjudication in this controversial area.

7. Seven Seas Limited, 2 February 2011

The ASA reviewed a newspaper advert for Seven Seas JointCare Opti-Release, which began with "Want smooth working joints throughout the day*?" and included an image of a woman running with parts of her joints glowing.  Also included in the advert was the text "Try new Seven Seas JointCare Opti-Release for a sustained release of glucosamine that's in rhythm with your body", together with a picture of the product and smaller text stating "*Glucosamine occurs naturally in the body where it plays a role in the smooth working of the joints and helps maintain connective tissues.  Seven Seas JointCare OptiRelease is one of a number of products including Seven Seas Joint Care Sport with Omega 3".

Complaint/Decision

It was complained that the advert was misleading because it implied that the efficacy of the product to improve joint health and mobility could not be substantiated.

The ASA upheld the complaint.  Seven Seas argued that the text used in the advert was an abbreviation of the text which CAP had approved, "Glucosamine occurs naturally in the body where it plays a role in the smooth working of the joints and helps maintain connective tissues". However, the ASA considered it had not seen sufficient proof that glucosamine could help maintain healthy joints or aid joint mobility.  Moreover, the heading of the advert implied that Seven Seas JointCare Opti-Release improved health and mobility, and the small print in the advertisement was not enough to prevent consumers from being misled.

This adjudication can be contrasted with the Healthspan advert, where disclaimer wording was considered by the ASA to be sufficient to prevent the marketing claims from being misleading.

RETAIL

8. ASDA Stores Ltd, 2 February 2011

Asda ran a number of television and newspaper advertisements to promote its "Price GUARANTEE", each containing a footnote/on-screen text stating that the data used for the guarantee was from mysupermaket.co.uk and other independent data.  It was also stated that conditions and exclusions applied, and that comparisons had been made against stores such as Tesco and Morrisons.

Complaint/Decision

This adjudication is another in a series of complaints concerning a "basket of goods" comparison.  A number of complaints were made on the basis that the "ASDA Price Guarantee" in the advertisements was misleading and could not be substantiated.

In general, the complaints were that some of the adverts were misleading because they suggested that Asda was generally cheaper than the other supermarkets, when they believed there were significant exclusions from the price comparison.

The complaints invited questions as to whether the information was out of date, whether the data was collated on days when Morrisons' promotions were likely to be less active, and the selective nature of some of the products chosen for the comparison.

The ASA noted that in addition to the price data collected from the shelves of rival supermarkets, Asda used on-line prices where possible as the basis of its comparisons.  There was no evidence that Asda should have been aware of promotions by Morrison run on particular days.  The ASA reviewed Asda's evidence that showed that some products had been excluded from its price guarantee.  In relation to certain of the apparently excluded products, the ASA accepted that these had been justifiably excluded because those exact products were not available at the other stores.

However, the ASA upheld the complaint on further grounds in relation to other excluded products.  Several of the advertisements included pictures of products not included in the offer, and the placing of the words "Exclusions apply" was not sufficient to warn viewers that the Asda price guarantee did not apply to those excluded items.  Moreover the general impression created by two of the adverts through the use of slogans such as "shopping's changed because for the first time if it could've cost her less elsewhere we'd give her the difference off her next shop" and "Saving you money every day – guaranteed!" was that the offer referred to shopping and saving generally, rather than to only specific items

This adjudication emphasises the key issues in relation to "basket of goods" comparisons, and the need to take care in relation to the products chosen for the purpose of the comparison.  It also emphasises that advertisers should be aware not only of the literal meanings of the claims made in their adverts, but also any implied claims and the overall message that consumers are likely to take from the advert. Advertisers should ensure that any statements that could otherwise mislead consumers are appropriately qualified.

9. Post Office Ltd, 16 February 2011

In a Post Office Ltd TV advert for its foreign currency service it was stated "As the UK's number one travel money provider, we know how important holidays are.  Which is why we give you nought per cent commission and great rates on your travel money.  The people's Post Office.  Pop in branch and see us, or order online and get your travel money delivered to your home."

Complaint/Decision

Marks and Spencer Money complained that the Post Office could not substantiate that it was "the UK's number one travel money provider" and therefore the advert was misleading.

The complaint was not upheld.  The ASA considered that viewers would interpret the statement in the advert to mean that the Post Office objectively had the greatest market share of any travel money provider.  However, this was substantiated by the contents of the Mintel report relied upon by the Post Office in the advert.

 "Number one" claims are always likely to attract attention from competitors and the ASA will usually adopt a strict approach to these sorts of claims.  However, this adjudication shows that with appropriate substantiation it is possible to make these types of claims.  Advertisers should ensure that robust evidence to substantiate such claims is collected before running such advertisements.

OTHER

10. Bargain Booze Ltd, 16 February 2011

Bargain Booze Ltd posted adverts on bill boards that stated "WE LOVE STUDENTS! WIN a year's supply of drink!"

Complaint/Decision

It was complained that the advert promoted irresponsible drinking and that the word "students" targeted under-age secondary school and college students as well as university students.

The ASA did not uphold the complaint.  The adverts were placed near university campuses during the Fresher's week season.  This placement, and the fact that the legal minimum age for the purchasing of alcohol being 18, meant that most readers would understand that the advertisement was aimed at university students rather than under-aged pupils.  Advice from Drinkaware showed that the alcohol prize was within the recommended daily guidelines for alcohol consumption, and because of the way that the products were packaged and traditionally sold, it was reasonable to distribute the prize on a weekly basis.  Also, the ASA noted that the advert did not feature any images which showed large amounts of alcohol or that related to excessive drinking.  Further, nowhere in the advert was it suggested that the whole of the year's supply of drink should be consumed on one occasion.

The advertising of alcohol will always be subject to close scrutiny by the ASA.  However, in this case, the sensible measures taken by the advertiser in relation to the wording of the advertisement text, the use of targeting and consulting Drinkaware, meant that the ASA was willing to adopt a lenient approach.

11. Moneysupermarket.com Ltd, 2 February 2011

In this adjudication the ASA reviewed an advertisement placed on a price comparison website which included the text "to compare more home insurers than anyone else, get thee to Moneysupermarket".

Complaint/Decision

Gocompare.com made a complaint to the ASA that the above statement was misleading and could not be substantiated.

The ASA upheld the complaint.  The ASA considered that the statement used in the advertisement suggested that the results of the comparison between websites was likely to be absolute and ongoing.  However, the data relied upon by Moneysupermarket for the comparison in making this claim was at least a month old, used a limited number of comparisons and was made on the basis of only four months' worth of independent data.  Moneysupermarket should have provided a higher number of comparisons each month and for a sustained period of time.  The data should also have been more up to date, particularly due to the dynamic and changing nature of the home insurance market.  There was also an issue as to the independence of the data.

This adjudication emphasises the ASA's requirement that advertisements should be substantiated by independent contemporary data, that has been collected over an appropriate length of time prior to its broadcasting/inclusion in newspapers or on websites.  Advertisers should also be aware that whilst obtaining clearance from Clearcast is extremely valuable, it will not necessarily negate the risk of an advertisement being in breach of the Code.

12. HomeForm Group Ltd, 2 February 2011

This adjudication concerned a TV advert and a sales promotion for fitted bathrooms, kitchens and bedrooms, which included a number of pricing claims, including "half price summer sale" and "until 4pm Sunday, get an extra thousand pounds off", "Discounts off list price.  Discounts apply to complete / fully fitted bathrooms", "Discounts off list price.  Minimum spend £3500", and "50% OFF MANY RANGES PLUS AN EXTRA 15% OFF SELECTED RANGES THIS WEEK".

Complaint/Decision

Two complainants challenged whether the advertised discounts were genuine.

The ASA upheld the complaints.  Although HFG said the higher prices had been charged for a period of almost four weeks, it did not provide evidence relating to the prices at which it sold the relevant products either before or after the advertised discount had been applied.  Moreover, HFG did not make clear that the prices used as the basis of the comparison only related to non-promotional prices used by its competitors. 

In its adjudication, the ASA referred to the 2008 BERR Pricing Practices Guide, which states that a previous price used as a reference price should be a genuine retail price whereby retailers might reasonably expect that they could sell a significant number of the goods at that price, and where a significant quantity of the goods are placed on sale at that price.  It also provides that the previous higher price and the actual price that retailers intend to charge for the product are likely to be material information needed by the consumer, and that the basis for the price comparison/discount should be made explicit in the advert.  Further, the period of time for which the lower price is available should not be more than that for which the higher price is available.

The ASA noted that it had not seen details of the "list prices" referred to in the TV advert.  The ASA had also not seen evidence to demonstrate that the prices on which the advertised discounts were based were genuine (i.e. prices at which the products were generally sold), rather than merely notional prices at which the products were rarely sold.

This adjudication reflects some of the difficulties associated with making 'discount' claims, and makes clear the importance of advertisers taking heed of the BERR (now BISS) Pricing Practices Guide.

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 01/04/2011.

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