UK: ASA Adjudications Snapshot - July 2011

Last Updated: 8 September 2011
Article by Susan Barty, Alex Bowtell, Stuart Helmer and Lucy Kilshaw

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

This month the ASA considered complaints about 'green' claims and pricing comparisons as well as the highly publicised, successful "air-brushing" complaints made by MP Jo Swinson. It also considered the risk of offence being caused by adverts containing sexually explicit content that did not relate to the products and services being advertised, and the risk of dangerous activities shown in adverts being emulated, particularly by children.

To view the article in full, please see below:


Full Article

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

This month the ASA considered complaints about 'green' claims and pricing comparisons as well as the highly publicised, successful "air-brushing" complaints made by MP Jo Swinson. It also considered the risk of offence being caused by adverts containing sexually explicit content that did not relate to the products and services being advertised, and the risk of dangerous activities shown in adverts being emulated, particularly by children.

ADJUDICATIONS

Health And Beauty

  1. Alberto-Culver Company (UK) Ltd, 6 July 2011 (Tresemme was unable to substantiate claims that its shampoo and conditioner could make hair 10x stronger after one use, despite providing test results)
  2. L'Oreal (UK) Ltd t/a Lancôme, L'Oreal (UK) Ltd t/a Maybelline, 27 July 2011 (Jo Swinson MP had her complaint that images in adverts for make-up products had been digitally manipulated and therefore did not represent the actual results that the product could achieve, upheld)

Holidays And Travel

  1. Bmibaby Ltd, 13 July 2011 (flight prices were deemed misleading because they did not include airport taxes and charges)
  2. Ryanair Ltd, 27 July 2011 (restrictions on travel periods should be clearly displayed when quoting flight offers)

Leisure

  1. MyCityDeal Ltd, t/a Groupon UK, 6 July 2011 (offers for contributions towards the full price of items or services should make clear that a customer would be required to pay extra)
  2. The Win Green Trading Company Ltd, 20 July 2011 (the ASA considered the dangers of children emulating dangerous behaviour)
  3. Thorpe Park Operations Ltd, 20 July 2011 (A complaint about dangerous behaviour being condoned and the risk of it being copied were considered)

Food And Drink

  1. Carlsberg UK Ltd, 6 July 2011 (Advertisers to ensure that investigation into demand for promotional items to be tailored to the nature of the promotion)
  2. Aldi Stores Ltd, 13 July 2011 (Comparative basket advertisements to compare branded products with branded products, premium with premium, and own-brand with own-brand)

Computers And Telecoms

  1. Talk Talk Telecom Ltd, 20 July 2011 (The ASA considered whether the advert was misleading because it exaggerated the savings that customers were likely to achieve by switching to TalkTalk)
  2. Hutchison 3G UK Ltd t/a 3, 6 July 2011 (The ASA considered that in order to make a comparative claim in relation to all other mobile phone providers, Three needed to compare itself with all providers, not just a select few)

Household

  1. Jean Patrique Cookware Ltd, 13 July 2011 (the ASA considered the use of RRPs and "free" gifts where postage payments were required from the customer)
  2. Panasonic UK Ltd, 20 July 2011 (A complaint involving comparative claims and considering what can be classed as a "green" claim)

Energy

  1. Spark Energy Ltd, 20 July 2011 (Comparisons with an average taken from six competitor tariffs was considered misleading. The ASA also considered an environmental claim in light of the DEFRA guidance)

Other

  1. Nottingham Ready Mix Ltd, 27 July 2011 (The ASA considered that this advert would not cause widespread offence, despite featuring images of an attractive woman which had nothing to do with the products being advertised)

HEALTH AND BEAUTY

Alberto-Culver Company (UK) Ltd, 6 July 2011

The adjudication concerned a press advert and a TV advert for TRESemme Naturals shampoos and conditioners which stated "10x stronger after just one use* Naturally" and "Giving you hair that's 10X stronger after only one use" respectively. Text at the bottom of the press advert stated "*TRESemme Naturals Shampoo and Conditioner versus non conditioning shampoo" and on-screen text on the TV advert stated "*Strength measured against resistance to brushing. TRESemme NATURALS Shampoo and Conditioners vs non conditioning shampoos".

Complaint / Decision

Three complainants challenged whether the claim "Giving you hair that's 10X stronger after only one use" was misleading and could be substantiated.

The complaint was upheld.

Alberto-Culver Company (UK) Ltd (Alberto-Culver) stated that "stronger" hair would be understood by consumers as hair which was less prone to breakage when brushing. They stated that the accepted industry standard for evaluating hair damage induced by wet and dry combing was the "repeated combing test". This was accepted by the ASA as a consumer-relevant method of examining hair strength and the ASA accepted that a trial submitted by Alberto-Culver which showed a reduction in hair breakage in users of Tresemme, and which they relied upon as showing an increase in hair strength. Clearcast said that they believed that the majority of consumers would perceive hair strength, or lack of it, as being based on whether the hair breaks during brushing. Therefore, the ten times reduction in breakage during brushing that Alberto Culver had demonstrated could be described as a ten times increase in hair strength.

However, the ASA considered that, without further qualification, the claim "10X stronger" would be considered by consumers as likely to infer that the products would make the hair physically stronger and was therefore misleading. Although the TV advert did include some qualifying on-screen text, the press advert did not include any similar qualification.

The ASA accepted that the qualification "TRESemme NATURALS Shampoo and Conditioners vs non conditioning shampoos" included in both adverts adequately qualified the nature of the comparison. However, the ASA noted that the trial tested bleached hair, apparently to replicate the type of damage caused to hair by heat styling and colouring. As a result, the ASA concluded that Alberto-Culver had not demonstrated that the product would have such an extensive effect on all types of hair. Alberto-Culver sought to rely on the fact that 60-70% of Tresemme customers coloured or highlighted their hair, and that the product was the third highest selling haircare product.  However, the ASA concluded that a significant number of UK women did not colour their hair. As a result, because the adverts did not state that the 10x stronger claim related to users with colour-treated hair, the ASA considered that consumers would assume that this applied to all hair types. Because Alberto Culver had failed to substantiate the claim in relation to all hair types, the ASA concluded that both adverts were misleading.

This adjudication demonstrates the need to take care when making broad claims and the need to ensure that any claims made fully match the available substantiation. Any qualifications must be clearly stated and must, of course, not contradict the claims being made. 

L'Oreal (UK) Ltd t/a Lancôme, L'Oreal (UK) Ltd t/a Maybelline, 27 July 2011

The adjudication concerned two magazine adverts, the first for "Teint Miracle" foundation for Lancôme, featuring an image of Julia Roberts. The second for "The Eraser" foundation by Maybelline, featuring Christie Turlington. In relation to the latter, small print along the bottom of the advert stated that the image was an "illustrated effect".

Complaint / Decision

In two separate complaints, Jo Swinson MP challenged whether the adverts were misleading because she believed that the images in the adverts had been digitally manipulated and therefore did not represent the actual results that the product could achieve. Jo Swinson has long campaigned against "air-brushing" in adverts and co-founded the "Campaign for Body Confidence".

Lancôme provided details of the post production techniques used, but said that they did not consider that the changes related to the characteristics of the product and maintained that the advert provided an aspirational picture of what could be achieved by the product. The ASA noted that they were not provided with information that allowed them to see the effect these enhancements had on the final image.

Maybelline, who provided consumer testing results which they considered demonstrated that the public agreed with the claims made for the product, said post-production techniques had been used to create "blocks" over the model's face that differentiated between areas that the product had been applied to and areas that it had not. They stated that the image had also been digitally re-touched to lighten the skin, clean up make-up, reduce dark shadows and shading around the eyes, smooth the lips and darken the eyebrows. The ASA accepted Maybelline's assertion that fine lines under the eye, crow's feet, expression lines on the cheek and lines and pores near the model's nose were nevertheless clearly visible, even on areas where the product had been applied.

The complaint was upheld. In both decisions, the ASA acknowledged that consumers would expect that a model used to advertise foundation would be naturally beautiful and would have been professionally styled, made-up and photographed for the advert. Moreover, in relation to the Lancôme advert, the ASA also noted that high quality studio photography and lighting, plus the inherent smoothing properties of the product also contributed to the image of flawless skin. In relation to the Maybelline advert, the ASA noted that the area around the model's left eye had been digitally re-touched and considered that the text had drawn particular attention to the product's effect in this area. The ASA considered that, although the combined effect of the image and the surrounding text explained the product would cover, but not eliminate wrinkles and blemishes, it did suggest that the product could have a significant impact on the appearance of imperfections in the skin. (There is no reference in the assessment of the complaint to the "illustrated effect" text".)

In relation to both products, on the information provided, even though the ASA accepted that laboratory testing showed the Lancôme product was capable of improving skin appearance, the ASA was unable to conclude that the image accurately reflected the effect the product could achieve. The ASA therefore concluded that both adverts were misleading.

These adjudications attracted very wide publicity in the media. This is a particularly hot topic for the ASA at the moment, which brought out a help note in April this year entitled "Use of production techniques in cosmetics advertising" covering pre-production techniques (styling, make-up, lash and hair extensions); post production techniques (altering of photographic images) and qualifications and disclaimers. Any adverts featuring any similar forms of post-production techniques are likely to be the subject of similar complaints. Advertisers are not prohibited from altering or enhancing images in all circumstances, but they must be careful that such changes do not misleadingly exaggerate the capability or performance of a product. Qualifications and disclaimers, carefully used, can be valuable in this area, as demonstrated by the adjudication concerning "L'Oreal Double Extension mascara" in May 2010 in which the complaint was not upheld, even though this will not necessarily avoid adverse media comment.

It should be noted that, although more likely to be an issue with beauty products, and the Copy Advice note only covers these, this concept applies to other adverts too, not just those for cosmetics. So, for example, suggesting that a cleaning product could make your kitchen shinier that the actual result achieved by the product could also be non-compliant. 

HOLIDAYS AND TRAVEL

Bmibaby Ltd, 13 July 2011

This adjudication concerned a promotional e-mail and a website for an airline promotion offering discounts on flights, both stating Up to 40% off ALL flights!" The website also stated "Up to 40% off ALL flights!".

Terms and conditions at the bottom of the next page, after clicking on the promotion, stated "Offers available until Tuesday 22nd March. Up to 40% off applies to the airfare only and excludes airport taxes and charges".

Complaint / Decision

One complainant challenged whether the claim "up to 40% off ALL flights" in both ads was misleading because the reduction applied only to the value of the fare and did not include airport taxes and charges.

The complaint was upheld. The ASA noted that the bottom of the e-mail contained a link to the terms and conditions of the offer and that the terms and conditions were printed at the very bottom of the webpage. However, they considered that the average consumer would infer from the headline claim that there was a 40% discount off the total cost the flight, including all non-optional taxes and charges. They considered that the qualification that the discount only applied to the airfare was particularly significant and therefore should have been more prominently displayed in the main body of both adverts. Therefore the ASA considered that the adverts were misleading.

Ryanair Ltd, 27 July 2011

Ryanair put out a national press advert, for flights which was headlined "FLY RYANAIR one way from £7". It included images that showed people who appeared to be in a bar, of streets and fireworks with text below stating "DUBLIN. SAY HELLO, WAVE GOODBYE See ya later 2010!...There's a good old knees-up to be had in the Irish capital as the Dublin New Year festival (30th Dec - 1st Jan) hosts free street entertainment along with an abundance of gigs dotted around the city. Say hello to the New Year in Dublin and come celebrate with us as we look forward to a new year with new beginnings. For more information on the New Year's Festival, visit www.visitdublin.com."

Small print stated "...Book until midnight 16.12.10. Travel Jan - Mar. Subject to availability...".

Complaint / Decision

Easyjet Airline Company Limited challenged whether the advert misleadingly implied that it was possible to travel to Dublin to celebrate New Year's Eve from £7.

The complaint was upheld. The ASA noted the ad promoted New Year in Dublin. They considered that, in the context of images and of the text regarding New Year celebrations, consumers would be likely to expect the promotional prices advertised to be relevant for travel to Dublin over the New Year period. The ASA also considered that the small print "Book until midnight 16.12.10. Travel Jan - Mar" contradicted, rather than qualified that impression, therefore, they concluded that the advert was misleading.

Marketers should take care to ensure that images and text on an advert do not contradict the terms and conditions attached to the purchase of the product or service being advertised. 

LEISURE

MyCityDeal Ltd, t/a Groupon UK, 6 July 2011

The adjudication concerned an email promotion stating "£98 for £1650 towards Invisalign Teeth-Bracing Technology and Whitening at Q Clinic. View now For £98,00 [sic] Discount 94% Saving £1552,00 [sic]". Underneath, below the heading "Highlights" text stated "£1650 discount on the full price (usually £3,500)" and text under the heading "Fine Print" stated "Holder must pay remaining balance".

Complaint / Decision

One complainant challenged whether the claims for the £98 discounted price were misleading, because having clicked through to the offer, she found there was a significant amount to pay in addition to the £98.

The complaint was upheld.

The ASA understood the e-mail offered recipients an opportunity to pay £98 and in return receive a discount of £1650 off the full price of teeth-bracing and whitening. Although the ASA noted the headline claim implied this, the ASA considered that it was not clear that a customer was simply buying a discount, albeit that the discount was for more than they were paying, or that they would need to pay a significant additional amount in order to receive the advertised treatment.

The ASA also considered that it was unclear that the claim "Discount 94% Saving £1552,00 [sic]" referred to the discount and saving on the £1650 purchased for £98 rather than the overall cost of the treatment. The ASA noted the e-mail stated £1650 discount on the full price (usually £3,500)" and "Holder must pay remaining balance". However, despite this and Groupon's claims that customers were used to similar offers and they routinely offered contributions towards the full price of items or services, particularly those with a high retail value, the ASA nonetheless considered that, in the overall context of the e-mail, the claims were confusing and did not clarify the nature of the offer nor the amount that a customer would be required to pay on top of the £98 they had already paid. The ASA therefore concluded that the e-mail was misleading.

This is the eighth complaint in nine months in relation to Groupon's advertising. This in part reflects the complex nature of the offers being made and the novelty of this type of advertising. Groupon's adverts will clearly be the subject of scrutiny by the ASA, but advertisers offering similar promotions should take particular note. In general, all price promotions and discounts need to be clearly identified to avoid being misleading to customers. 

The Win Green Trading Company Ltd, 20 July 2011

The adjudication concerned an advert in a catalogue featuring a photograph which showed two children playing with a "Fire Station" tent. The picture included a real fire that one child was pretending to extinguish.

Complaint / Decision

The complainant challenged whether the advert was irresponsible because it showed children playing with fire.

The complaint was upheld. The ASA considered that, although the catalogue was targeted at adults, it was targeted at adults who would purchase play tents for their children who were the same age as the models featured, and the catalogue was likely to be kept in households where children lived.

They considered it likely that children would be attracted to the catalogue because they would have an interest in the play tents and because it featured images of children their own age. The ASA also considered that the images were likely to be seen as realistic. The ASA therefore considered that young children who saw the catalogue might try to copy the images of children playing with fire, hence risking their safety.

Thorpe Park Operations Ltd, 20 July 2011

The adjudication concerned a TV advert for a new ride at Thorpe Park. The advert featured two cleaners at work. One stood on a floor-buffing machine as it turned. The voice-over stated "Errrr, what is this? A spinning fool? Well my friend, for thrills, get a load of these". The advert showed images of a roller coaster-style ride followed by images of the cleaner on the machine spinning at an increased pace. The voice-over continued "Yeah, you're spinning faster, but without water it's not storm surge" while the image showed the electrical cord being wrapped around the cleaner's legs until he eventually fell over.

Complaint / Decision

Three viewers challenged whether the depiction of the cleaner spinning around on the buffing machine and allowing the electrical flex to tangle around his legs was irresponsible and likely to encourage unsafe behaviour and two of the viewers challenged whether the advert condoned dangerous behaviour that was likely to be emulated by children.

The complaints were not upheld. The ASA were concerned that the advert showed an unsafe behaviour in an amusing and potentially attractive light, especially in comparison to the cleaner's activity at the beginning of the advert. They also considered that older children could see it in this way. However, they considered that the average viewer would not have access to a floor polisher and that those who did were likely to work in the cleaning industry and would have received adequate health and safety training on how to use the machine safely. They also considered that children would not have access to these machines in unsupervised environments. Therefore, the ASA concluded that although the actions depicted were unsafe, they were not actively encouraged or condoned and were very unlikely to be emulated by viewers, or in particular children.

The risk of children emulating dangerous behaviour is something the ASA takes particularly seriously. In comparison to the adjudication relating to the Win Green advert, the ASA considered that this advert was less harmful to children because the advert was less likely to appeal to children on the basis that it did not feature children, plus unlike the Win Green advert, children would not have access to the equipment feature in this advert, or indeed anything similar, so it would be harder to emulate. 

FOOD AND DRINK

Carlsberg UK Ltd, 6 July 2011

This adjudication concerned a prize promotion on packs of Carlsberg, which included various prizes and also stated "Everyone who buys a promotional pack will also be eligible to send off for a free pair of Carlsberg pint glasses ... All entries must be received by 7th January 2011 ... Free Pint Glasses. To apply for your free pair of Carlsberg pint glasses, entrants must send an envelope with their name and full address plus one token from a promotional pack to the following address: ... Applications must be received by 30 April 2011. Glasses available while stock lasts ...".

Complaint / Decision

The complainant challenged the availability of the free pair of Carlsberg pint glasses, because, having attempted to redeem the offer, he had been unable to obtain the glasses.

The ASA acknowledged that the promotion stated "Glasses available while stock lasts ..." however, they considered that this did not relieve Carlsberg of their obligation to do everything reasonable to avoid disappointing participants.

Although Carlsberg had subsequently ordered sufficient glasses to fulfil all redemptions, the ASA considered that, in the first instance, Carlsberg had not made a sufficient estimate of demand. Carlsberg had based their stock level for the current promotion on a previous promotion that they considered to be similar because both promotions been run on-pack and off-trade. However, the current glasses promotion had been run in conjunction with a promotion for a "main prize". The ASA therefore considered that a reasonable comparator would have to be a promotion run in conjunction with a main prize to take account of any uplift that the offer of the main prize could have on sales and subsequently redemptions.

The ASA also considered that the discount voucher that Carlsberg had sent to the complainant as a substitute for the glasses was not of equivalent value. Therefore the ASA found that Carlsberg was in breach.

The ASA has taken a tough approach with this adjudication. Although Carlsberg had estimated the amount of glasses needed and did take steps to mitigate the disappointment suffered by customers when demand outweighed supply, by providing an alternative, they were still found to be in breach. This decision shows that particular care is needed when estimating supply required for such redemptions. It is not possible to just rely on uptake in response to previous promotions, anything that is likely to increase demand should also be taken into consideration.

Aldi Stores Ltd, 13 July 2011

This complaint concerned an email advert for Aldi supermarket which had the subject heading "Try the Aldi challenge today". The headline in the body of the email stated "Try the Aldi challenge today and see how much you can save!". Below were two images, one showing 13 premium brand products with the text "Other supermarkets £13.92", and next to it the second featuring 13 equivalent Aldi products and the text "Your Aldi store ONLY £7.53". Text between the two images stated "SWAP & SAVE OVER 40%*". Underneath, an image of a sales receipt showed individual price information for each of the 13 Aldi products followed by the text "TOTAL SAVINGS £6.39". Small print linked to the asterisk stated "Based on a selection of branded products checked on mysupermarket.com on 20/01/2011. The cheapest competitive price pro rata has been used for 'other supermarkets' using the top three retailers. This does not include offers or multibuys. Aldi prices and packaging correct as of 20/01/2011".

Complaint / Decision

One complainant challenged whether the comparison in the advert was unfair and misleading, because it compared premium brand products from other supermarkets with Aldi's equivalent non-branded items.

The ASA challenged whether the price claim relating to 'other supermarkets' was misleading.

Both complaints were upheld.

The ASA considered that the advert was likely to be read as a whole. They considered that the text and photo shots of the products taken together made it clear that Aldi's own-brand products were being compared with premium brand products at other supermarkets. Although the advert did not specifically state that the 'other supermarket's' products were premium brand products, the ASA considered that most consumers would recognise them as premium brand products. The ASA found that it was clear which products were being compared, therefore concluded that the price comparison was not misleading in this respect.

Although the ASA found the basis of the price comparison to be clear, the ASA considered that the price comparison itself was unfair. Marketers are required under the CAP Code, as far as reasonably possible, to compare products of the same, or very similar, quality (for example own-brand with own-brand, brand with brand, and premium with premium). Although Aldi did not sell the premium brands in question, other supermarkets sold their own own-brand products and the ASA considered that a more appropriate and fairer comparison would have been to compare own-brand with own-brand. Evidence provided by Aldi to show that the Aldi products were not materially different or inferior to the premium brand products was not considered relevant because the claims in the advert related to price and not quality.

The ASA considered that, whilst the advert explained how the price from 'other supermarkets' was calculated, it did not clearly identify who the top three retailers were and did not clearly set out which of the 13 products were purchased from which retailer, or state the competitor price for each item. In addition, because mysupermarket.co.uk listed prices for several retailers including Tesco, Sainsbury's and Asda, it would not have been apparent from that site which were the top three retailers used in the comparison. The ASA therefore considered that the price from 'other supermarkets' was not sufficiently detailed.

In addition, Aldi had pro-rated four of the 13 products on the basis that they considered that the differences in sizes were slight. The ASA disagreed with this approach, noting that for two of the four products the differences were 20% and 15%, which they did not consider slight. The ASA concluded that marketers should compare identical sizes of products and not pro-rate prices because it was likely to skew results. The ASA therefore concluded that the 'other supermarkets' price claim was misleading.

This is the latest in a series of adjudications over price claims for supermarkets. It clearly shows that the ASA expects price comparisons to be on the basis of like-for-like products (own-brand with own-brand, brand with brand, or premium brand with premium brand) of the same pack size. Unsurprisingly, the ASA also noted that if a basket is made up of products from more than one competitor, those competitors should be clearly identified, with the products being matched to the different retailers and individual price information being included for each item.

COMPUTERS AND TELECOMS

Talk Talk Telecom Ltd, 20 July 2011

This adjudication concerned a TV advert with a voice-over stating "Would you like to save over 140 pounds a year on your calls and broadband?..." On-screen text stated "SAVE OVER £140". Small print at the bottom of the screen stated "TT Essentials package. 40GB download limit. Connection £29.99. £12.30 monthly line rental. 18-mnth min contract. Conditions apply. Direct debit payment. Available 80% UK households". The voice-over then stated "Simply switch to TalkTalk and you'll pay six pounds ninety-nine a month for your calls and broadband, and join our customers who are already saving an average of over 140 pounds a year" while the on-screen text changed to state "£6.99". Small print at the bottom of the screen stated "Source: July 2010 ICM Research Survey of 1,001 new TalkTalk customers monthly spend with previous supplier vs. TalkTalk average monthly bill (switching to equivalent services)".

Complaint / Decision

The complaint was on the basis that the advert was misleading because it exaggerated the savings that customers were likely to achieve by switching to TalkTalk; and also that the savings claim was based on savings that had been achieved by customers who had already switched to TalkTalk, and not on the savings that could be achieved by the customers of other providers to whom the advert was addressed.

Both claims were upheld.

The ASA disagreed with TalkTalk's arguments that the advert presented a question rather than a statement and considered that the question marks surrounding the text "SAVE OVER £140" did not help because they appeared only briefly and could easily have been overlooked. The ASA considered that the claims would be interpreted by viewers as relating to whole-bill savings and that by switching to TalkTalk, like those customers who had already switched, they too would make a substantial saving. The ASA said that they would expect such a claim to be substantiated with a comprehensive, robust set of comparisons which showed that TalkTalk's phone and broadband tariffs were lower than those of their competitors.

The evidence provided by TalkTalk was instead based on the results of a survey of customers who had already switched to TalkTalk, and who had been asked how much they had paid for phone and broadband with their previous supplier and how much they had saved by switching to TalkTalk. The ASA did not consider that this was sufficiently robust to support a savings claim, because customers who had switched to TalkTalk were more likely to have done so if they were going to make a saving. Therefore, the survey results were unlikely to include data for customers for whom a switch would result in either no saving at all or only a small saving.

As a result, the ASA considered that the survey results could not show that customers of other providers would definitely make a substantial saving if they also switched and that the advert exaggerated the savings that customers were likely to achieve.

Hutchison 3G UK Ltd t/a 3, 6 July 2011

Claims on Three's website stated "No other network gives you more for £10. More minutes, texts, and internet. You get a great value package when you convert £10 of credit into our All in One 10 Add-on. See the table below to find out how we compare to these other high-street operators". The table compared Three's package to those of Orange, T-Mobile, Tesco, Virgin, Asda, Vodafone and O2.

Complaint / Decision

Two complainants challenged whether the claim "No other network gives you more for £10" was misleading, because they understood that Giff Gaff offered a better £10 package.

The complaint was upheld. Three said that Giff Gaff excluded Three from all of its comparative advertising, and therefore they did not believe that Three should be required to compare themselves with Giff Gaff.

Three said that Giff Gaff was not an "operator" but a mobile virtual network operator (MVNO) that rode off the back of an operator. They said that Giff Gaff owned no infrastructure, had no customer service infrastructure, did not sell phones and was not available anywhere on the high street, and as the advert referred to high street offers, they did not need to include Giff Gaff in the comparison. However, the table on the website included Tesco, Virgin and Asda in the comparison, all of which were MVNOs.

In addition, although the ASA noted that the table on the website compared Three's package specifically with seven high street competitors, the ASA considered that the headline claim referred to "no other network" and implied that the comparison was with all mobile service providers, not just operators. The ASA also considered that the inclusion of the text "See the table below to find out how we compare to these other high-street operators", intended to qualify the claim, did not make sufficiently clear the comparison was intended to be only with those networks included in the table. Instead, it was likely to be interpreted as highlighting a selection of the networks the claim applied to, from all mobile service providers. The ASA also considered that, in the absence of qualification to the contrary, the claim "More minutes, texts, and internet" was likely to be interpreted as a comparison made only on the basis of those features, across all mobile service providers. The ASA therefore considered that Giff Gaff could not be excluded from the comparison on that basis.

Three said they had previously responded to the ASA in relation to a complaint on a similar issue concerning a leaflet distributed by them. The ASA had concluded that the claim was misleading, because it implied that the comparison included all mobile service providers, when it included only certain high street competitors. The ASA had told Three to ensure that the basis for comparative claims was clearly explained in future.

Because the ASA understood that Giff Gaff's package included more minutes, unlimited texts and unlimited internet, they concluded that the advert breached the CAP Code rules relating to misleading advertising, substantiation, qualification and comparisons.

HOUSEHOLD

Jean Patrique Cookware Ltd, 13 July 2011

The adjudication concerned two promotional emails, for kitchenware products.

The first email had the subject heading "Electronic Salt and Pepper Mills only 1.99 GBP RRP 49.99 GBP". The e-mail was headlined "ELECTRONIC SALT & PEPPER MILLS RRP £49.99 You SAVE £48 per Pair.

The second email had the subject heading "Clearance - Electronic Salt and Pepper Mills limited supplies". The e-mail also showed the salt and pepper mills and included the text "ELECTRONIC SALT & PEPPER MILLS". Text below the image showed "ONLY £10 ... + P&P". The advert also showed a can opener with the text "for FREE !*". Further text stated "ABSOLUTELY FREE*...". Text below stated "Get a Free Can Opener with this Exclusive Offer ...".

Complaint / Decision

Two complainants challenged the adverts on the basis that they:

  1. misleadingly implied the stated prices were for both the salt and pepper mills, rather than for just one mill;
  2. were misleading, because they did not make clear the cost of delivery.

One also challenged whether the can opener was genuinely free. The ASA challenged whether the stated recommended retail prices (RRPs) genuinely reflected the price at which the products were generally sold.

All of the complaints were upheld.

The ASA noted that the subject headings for both adverts contained references to both salt and pepper mills and that the adverts included a prominent image of a pair of salt and pepper mills and other references to the "mills". Although they noted that the smaller text sought to state that the prices were per mill, the ASA considered the overall impression given by the adverts was that the stated prices were for the pair of mills. Because this was not the case, they concluded that the adverts were misleading.

Because the adverts either did not include any reference to delivery charges or included the text "... + P&P" but did not state the applicable delivery costs, the ASA concluded that they were misleading.

Because consumers had to pay for packaging for the can opener, the ASA concluded that it was misleading to describe the can opener as "free".

Because the ASA had not been provided with evidence to show that the stated RRPs reflected the prices at which the products were generally sold, they considered the RRPs, and associated savings claims, were not genuine and breached the Code.

Price promotions are high on the agenda, especially following the publication of the OFT's market study in December 2010 concerning targeted pricing practices.  The OFT has said that it is actively monitoring price promotions and, where necessary, will take targeted national enforcement action against firms using practices that constitute serious breaches of the law. This is a particular danger area for promoters. The Consumer Protection Regulations 2008 include describing a product as "free" or similar if the consumer has to pay anything other than the unavoidable cost of responding to the promotion and collecting or paying for delivery of the item, as one of the commercial practices that are considered unfair in all circumstances and which are prohibited. Therefore, care should be taken not to describe items as "free" if consumers are expected to pay packing, packaging, handling or administration charges for the product, even if this includes no cost for the actual product. In addition, there are tight rules on the use of RRPs, both on their own or in comparisons. RRPs should not be used unless the advertiser can properly substantiate that they represent the genuine selling price that is widely used. 

Panasonic UK Ltd, 20 July 2011

This adjudication concerns adverts for Panasonic Eco-Max vacuum cleaners. 

The press advert was headlined "UNRIVALLED SUCTION, MAXIMUM EFFICIENCY. WE'VE REALLY CLEANED UP". Text stated "The Panasonic UL594 is part of a new range of vacuum cleaners that have Eco ideas at their heart. Featuring our unique Eco-Max motor, it uses energy more efficiently to deliver unrivalled suction power for an upright bagless vacuum - making cleaning effortless.... combines innovation and efficiency for better results."

The TV advert featured flowers in a breeze and a woman using a vacuum cleaner. The voiceover said "The new Panasonic...features our unique eco-max motor, which uses energy more efficiently to deliver incredible suction power..."

Complaint / Decision

Dyson Ltd challenged the adverts on several bases, including in particular, whether the claims "Maximum efficiency" and "uses energy more efficiently" were misleading, because they believed that other similar products were more energy efficient; and whether the imagery of flowers being gently blown by the product but not damaged, misleadingly implied that the product had environmental benefits.

The ASA upheld the complaint about the claim "Maximum efficiency". Because it directly followed the claim "Unrivalled suction", the ASA considered that readers would understand the claim to be comparative and implying that the efficiency of the Panasonic vacuum was superior to competitor products. The ASA considered that, in order to make a true comparison of efficiency, the products should have been independently tested, it was not sufficient to rely on manufacturer's literature data to support the claim. Because the ASA had not seen sufficient evidence to support a claim that Panasonic had the highest or maximum efficiency when compared to other manufacturers' products, they concluded that this claim was misleading.

In contrast, the ASA considered that a key message in the advert was to introduce the "new Panasonic... vacuum cleaner" and that in that context, the claim "uses energy more efficiently" would be understood to relate to a comparison with preceding Panasonic appliances, not competitor products. Because of this and the fact that Panasonic had provided supporting data which showed that the advertised model was significantly more efficient at converting input electrical power into suction power than previous Panasonic models, the ASA concluded that this claim was not misleading.

The moving flower imagery was also not considered to be misleading. The ASA considered that viewers would understand that the moving flowers represented a visual response to the vacuum cleaner's suction, as did the movement of the dog's fur and the pencils on the sofa in the other scenes. As such, the ASA concluded that viewers would not infer that the ad was promoting or implying any environmental benefits offered by the appliance.

ENERGY

Spark Energy Ltd, 20 July 2011

The adjudication concerned claims on an energy company's own website.

Complaint / Decision

Scottish and Southern Energy (SSE) challenged whether:

  1. The claim "we guarantee to match or better the 'Big Six' Standard tariffs" was misleading, because the advertiser considered an average of the six companies' standard tariffs, rather than each company's tariff individually, and also because the advertiser considered a 5% difference matching; and
  2. The claim "Over the next few years, we will be obtaining secure renewable fuel sources with a view to providing 100% of our customers electricity requirements via renewable sources" was misleading, because it was not adequately qualified.

The complaints were upheld. Comparisons with identifiable competitors "must objectively compare one or more material, relevant, verifiable and representative features of those products" and "Comparisons with a competitor price must be with the price for an identical or substantially equivalent product and must explain significant differences between the products ...".

In relation to the claim to match or better the 'Big Six' standard tariffs, the ASA considered that although the footnote made clear the basis for the comparison, consumers were unlikely to consider this a comparison with an identical or substantially equivalent competitor product, because an average of the six standard tariffs could be skewed by one particularly expensive tariff from one provider. In addition, the ASA considered that a 5% variance would be unlikely to be recognised by the average consumer as 'matching'. Hence they concluded that these caveats contradicted, rather than qualified, the claim.

The ASA noted that the best practice guidance on environmental claims from the Department for Environment, Food and Rural Affairs stated that "Future claims should be supported by publicly available plans or a strategy that provides details about the intended actions to achieve the target." The ASA considered that the claim "Over the next few years, we will be obtaining secure renewable fuel sources" implied that Spark Energy had a strategy in place to secure renewable electricity sources over several years. However, because their current renewable sources were secured for a few months only, and their plans beyond then only extended for up to a year, the ASA considered that the claim, unqualified, was likely to mislead.

DEFRA's "Green Claims Guidance" was published in February this year. The ASA's work in this area complements the guidance which also helps to provide clarity in areas not directly covered by the Codes, including packaging, labelling and public relations. 

OTHER

Nottingham Ready Mix Ltd, 27 July 2011

This adjudication concerned an advert on the back of a local bus, featuring a picture of a woman lying on her front, wearing a short, low-cut black dress. Behind the woman was an image of a cement mixer and a man laying cement using a pump. Text stated "Why barrow it ... pump it! ... YOU THINK SHE LOOKS GOOD...CHECK OUR NEW CONCRETE PUMP!!".

Complaint / Decision

The complainant challenged whether the ad was offensive, because he believed it was sexist and demeaning to women.

The complaint was, somewhat surprisingly, not upheld. The ASA acknowledged that the advert could have been interpreted by some members of the public as having sexual connotations. However, they considered that most members of the public were unlikely to make such an inference. The ASA also noted that text likened the attractiveness of the woman (who was not indecently clothed or posed in a sexually provocative way) to the attractiveness of the product, but they did not consider that that, in itself, was likely to cause serious or widespread offence.

This adjudication can be contrasted with two other decisions, also in July, where the image of the women also bore no relation to the product being advertised, but where the advert was considered sexually provocative and/or where sexual innuendo was used.  Unlike those decisions, the ASA in this case considered that the advert was unlikely to cause serious or widespread offence.

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 01/09/2011.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

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.