UK: ASA Adjudications Snapshot - August 2011

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

This month the ASA considered complaints about time periods for promotions, underage appeal and the promotion of alcohol by under 25 year olds. In addition, the ASA dealt with geographical origin and absolute claims. There was also a particular focus on pricing issues, a subject which was addressed in a number of the adjudications.

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ADJUDICATIONS

FOOD AND DRINK

1. Cell Drinks, 3 August 2011 (the ASA clamps down on under 25 year olds promoting alcohol, despite the fact that they were not shown consuming the products)

2. Heineken UK Limited, 31 August 2011 (The ASA considers geographical origin claims)

3. Birds Eye Limited, 17 August 2011 (Claims about the vitamin content of frozen vegetables are considered to constitute nutrition claims, although it is clear that there is no implication that the freezing process adds additional vitamins to the food)

COMPUTERS AND TELECOMS

4. Mazuma Mobile Ltd, 31 August 2011 (considers how adverts can appeal to younger people and the difficulties of verifying parental consent)

5. Motorola Mobility UK Limited, 24 August 2011 (considers the substantiation requirements for "number one" claims)

HOUSEHOLD

6. Marcandi Limited, 10 August 2011 (considers whether an online auction complies with the provisions of the Gambling Act 2005 and how savings claims should be demonstrated to ensure that they include all costs to the purchaser)

7. HPAS Ltd, 24 August 2011 (claims to an offer only being valid for a week were acceptable in circumstances where there was a clear two week period in between the offers)

8. B&Q Ltd, 31 August 2011 (Considers the circumstances in which it is acceptable to not specify an end date for a promotion)

ENERGY

9. Npower Limited, 24 August 2011 (any important qualifications to offers or eligibility requirements needed in order to take them up should be clearly stated)

10. Danfoss Heat Pumps UK Ltd, 31 August 2011 (absolute claims require advertisers to demonstrate that the benefits claimed apply in all circumstances)

MOTORING

11. drive the deal.com, 10 August 2011 (Advertisers are entitled to refer to current events in advertising materials, provided that they do not exploit such events)

OTHER

12. Commonwealth College of Business Management London Limited, 17 August 2011 (This decision shows how images of landmarks can be persuasive as to the overall impression conveyed by the advert in terms of location of the service)

13. Pricing Practices (various) (a look at a number of adjudications from this month concerning pricing practices).

FOOD AND DRINK

1. Cell Drinks, 3 August 2011

Three advertisements appeared on YouTube to promote an alcoholic drink, Cell Drink. The adverts centred on demonstrating the Cell Drink's "zero spillage" feature. The first advert included images of Tim Shieff, a champion free-runner, free-running and jumping over buildings and performing back flips without spilling the drink. The other two adverts featured a man dressed as a rocker, dancing and spilling his drink and a woman dressed up as a raver, dancing and spilling her drink.

Complaint / Decision

Three complainants challenged the first advert and the advert featuring the woman on the basis that the people featured appeared to be under 25 years old (Tim Shieff was 23 years old). The first advert was also challenged on the basis that it was irresponsible because it associated alcohol with bravado and dangerous behaviour and because it implied that the product could enhance physical capabilities. All three adverts were challenged on the basis that they appealed to under 18s.

All complaints were upheld by the ASA, except for the complaint that the advert implied that the product would enhance physical capabilities.

Although it was acknowledged that Tim Shieff was only 23 years old, Cell Drinks relied upon the Portman Group Guidelines which suggest that it is acceptable to show someone over 18, but under 25, in a promotion for alcohol, provided that they are not shown in a context associated with drinking. They pointed out that there was no indication that Tim had been drinking, or was intending to drink alcohol, particularly because he was not shown in an environment where alcohol was being consumed. The ASA acknowledged that Tim was not shown to be drinking in the advert, however, they concluded that his free-running abilities and athletic skill would be "heavily associated" with the product and its promotion. Combined with the significant role that he played in the advert and the fact that he was only 23, the ASA found the advert in breach of the Code.

The ASA took a similar approach in upholding the complaint that the advert was irresponsible, because although Tim was not drinking alcohol, they found that the advert made a strong association between the alcoholic drink and the extreme and daring activities portrayed.

In relation to the advert featuring the woman, since the woman, who played a significant role in the advert where her actions were heavily associated with drinking alcohol, and since she was only 24 when the advert was filmed, the ASA concluded that this advert also breached the Code. This was despite the arguments put forward by Cell Drink that the woman was not shown to be drinking alcohol and was dressed in late '80's / early '90's attire, designed to appeal to an older audience.

The ASA found that all three adverts appealed to under 18s. They considered that, despite the fact that there were some restrictions in place to prevent young people accessing the advert, the free-running and hip hop soundtrack and the concept that the drink was "made for the dance floor" would appeal particularly to young people. In relation to the other two adverts, the ASA considered that the images of comical stereotypes and the "tongue-in-cheek" approach would also have particular appeal to young people.

In contrast, the ASA did not uphold the complaint that the advert misleadingly implied that the product could enhance physical capabilities. The ASA considered that viewers would not assume that Tim Sheiff's ability to free-run was the result of consuming a Cell Drink.

This decision demonstrates the ASA's strict approach towards adverts for alcoholic products that feature individuals who are under 25, particularly where they play a significant role in the advert and if the adverts show characters engaging in activities that may particularly appeal to younger viewers. The ASA took a stricter approach than that applied by the Portland Group in these circumstances, where, although the actors in the advert were not shown to be consuming the drink, the context of the advert was found to create a strong association between the characters and the alcohol.

This decision is also not surprising in the context of a previous adjudication relating to Miller Genuine Draft beer where the ASA considered the antics of a roller skater, who performed a series of tricks while roller skating, was likely to appeal strongly to under 18's.

2. Heineken UK Limited, 31 August 2011

This decision concerned a national press advert featuring a picture of a glass of Kronenbourg 1664 with text stating "The French are famous for many things, hurrying isn't one of them. So naturally a beer from Strasbourg, Eastern France is made rather slowly. From a patient approach to hop growing, to the delicate handling of the drying procedure, not one part of the brewing process is rushed...."

Complaint / Decision

A complainant challenged whether the advert was misleading because it implied that Kronenbourg 1664 is brewed in France, whereas it is actually brewed in the UK.

The complaint was upheld.

Heineken argued that the advert was merely highlighting the heritage of the beer, which was originally brewed in France and had the taste and strength of a lager from continental Europe. They also pointed out that the product was made using a variety of hops which were imported from, and unique to, the Strasbourg region. Heineken argued that consumers would distinguish between the provenance of the product and the location in which it was brewed. However, the ASA considered that the text of the advert implied that the product was brewed in France. The advert was therefore misleading.

Although in many ways this is not a surprising decision, it is somewhat difficult to reconcile with another decision this month concerning a TV advert for a car (MG Motor UK Limited, 31 August 2011) which stated that the car was "Designed and engineered in Britain". In that complaint the ASA concluded that the advert was not misleading, despite the fact that the majority of the manufacturing took place in China and only the final assembly was performed in the UK. It was considered significant that the cars were manufactured to the design specifications of the UK team. The ASA considered that the average consumer would not infer from the words "engineered" and "designed" that the car was manufactured in Britain.

3. Birds Eye Limited, 17 August 2011

This decision concerned a national press advert for Birds Eye Frozen vegetables which stated "30% more vitamins than fresh vegetables*" and in smaller vertical text, "*D J Favell Study 1998 Ref Vit C IFR Extra 2010."

Complaint / Decision

Five complainants challenged whether the claim "30% more vitamins than fresh vegetables" (1) was misleading and could be substantiated, and four challenged whether (2) it misleadingly implied that the freezing process boosted the amount of vitamins present in the vegetables.

The first complaint was upheld. Birds Eye provided details of two studies to substantiate the claim and said that a constant message in their advertising for many years was that the freezing process stopped the deterioration of food and worked on the premise that most consumers would understand that all vegetables started to deteriorate from the moment they were harvested.

The ASA was concerned that vitamin C levels had been the sole marker used in the study, despite the fact that the ASA understood that it was an appropriate marker. They considered that the study did not take into account the other vitamins that would be present in the vegetables and the adverts did not make sufficiently clear that vitamin C was the sole basis for the claim, which they thought was likely to be interpreted as referring to all vitamins. The ASA considered that, without clarification, the advert implied that fresh vegetables always had at least 30% less vitamins than the frozen equivalent, regardless of how they were stored or when they were consumed. Therefore it was considered misleading.

In addition, the ASA considered that the claim would be interpreted by consumers to mean that frozen vegetables were beneficial because of the amount of vitamins they contained compared to fresh vegetables. As a result, they considered this to be a comparative nutrition claim that was not permitted under the European regulation on Nutrition and Health Claims (EC regulation 1924/2006) because the comparison did not compare food in the same category. It was also not a permitted nutrition claim because fresh vegetables had a composition which allowed them to bear a nutritional claim, in particular that they were a source of vitamin C.

In contrast, the second complaint was not upheld. The ASA considered that the text featured in one of the adverts: "Our vegetables are picked and frozen within hours so they retain more vitamins than fresh vegetables" made clear that the higher vitamin content in the frozen vegetables was due to the retention rather than the addition of vitamins during the freezing process. Although this was not explicit in the other advert, the ASA considered that most consumers would understand that the freezing process did not add vitamins, but rather prevented their deterioration.

This decision, which has interpreted the claim as a nutritional claim, rather than a processing claim, seems somewhat harsh, particularly with respect to the restriction on comparing fresh with frozen food, in circumstances where Birds Eye has recently stepped up its campaigns to promote frozen vegetables as a cheaper and more available way for consumers to eat their five-a-day. Birds Eye had identified in the advert the study which supported the claim and also referenced the Birds Eye website which contained the information about the study. Birds Eye have, not surprisingly, challenged the sense in the findings. Indeed, Birds Eye CEO Martin Glenn has branded the ruling "ridiculous". Birds Eye have also vowed to find "new and legally robust ways" to promote the health qualities of frozen vegetables.

COMPUTERS AND TELECOMS

4. Mazuma Mobile Ltd, 31 August 2011

This adjudication concerned a TV advert for a mobile phone recycling company. The advert featured a teenage girl and boy dancing to a jingle about trading in mobile phones for cash. The actors were seen holding a laptop and a fan-shaped wad of £5 notes. Text on screen stated "We'll pay up to £150.00" "payment by cheque or bank transfer".

Complaint / Decision

Thirteen complainants challenged whether the advert was irresponsible because it could mislead children into thinking they could trade in phones for cash, whereas, in fact, they needed parental consent to do so.

The complaint was upheld.

Mazuma Mobile Ltd thought that the advert made sufficiently clear that it was aimed at adults because of the look and feel of the advert, the actors featured were, in fact, both over 18 years old, the advert indicated that a bank account was required to use the service and under 18's could only use the service if they had parental consent.

However, the ASA considered that despite their actual age, the actors used were styled to make them look younger. In addition, the music was catchy and repetitive and the actors were dancing in an immature fashion, hence it was likely to have a strong appeal to children. The advert had also been shown on a children's channel at a time when a large number of children would have been watching. Although the ASA considered that the advert might have a stronger appeal to adults, these factors meant that it still had a strong appeal to children.

The ASA also considered that because the advert showed the actors holding wads of cash, and there was actually no firm requirement for the respondent to hold a bank account in order to use the service (as the user could opt for payment in Argos vouchers instead), it was not clear that the service was aimed at adults.

In addition, given that only 10% of customers received £150 or more, the ASA considered that the advert exaggerated the benefits of the service and as such children would be given unrealistic expectations about how much cash they could get for their old mobile phones.

The decision also highlighted a common problem with online services requiring parental consent. Although this was a requirement of using the service, Mazuma was unable to verify that genuine consent had been obtained. The ASA found the offer by Mazuma to include on-screen text stating that parental or guardian consent was required for under-18s would be insufficient to alter the overwhelming impression given by the advert, which was that children could readily use the service. As a result, the ASA concluded that the advert was irresponsible.

Marketers should be aware that the mere fact of using actors of the relevant age is not necessarily sufficient to prevent their being any appeal to children if the overall image portrayed makes the actors seem younger.

5. Motorola Mobility UK Limited, 24 August 2011

A television advert for the Motorola Atrix mobile phone, stated "The world's most powerful smartphone".

Complaint / Decision

Two complainants challenged whether this claim was misleading because they believed that the Samsung Galaxy S Iii9100 had a more powerful processor.

The complaint was upheld.

In Motorola's response, they stated that when the phone was docked into a unique HD dock or standalone LapdockTM, it was capable of powering a full desktop browser, including support for cloud-based computing and virtual Windows desktop via a Citrix account.

The ASA took the view that viewers would understand the claim, "most powerful smartphone" to mean that the phone, in isolation, was the most powerful smartphone. The fact that, as demonstrated by Motorola, it had advanced features when used with other accessories was not sufficient.

Motorola had demonstrated that their phone had various features including computer-like speed, the web-top solution, 1GB of RAM and battery life. The ASA considered that, although these features described the performance and capability of the product, they did not necessarily make it "powerful". Although, the ASA acknowledged that the phone had a more powerful battery than all known competitors, the ASA considered that consumers would understand "powerful" in the context of a smartphone to mean that the product had, among other features, a faster processor than any other smartphone. Since the Motorola Atrix did not have the fastest processor, the advert was found to be misleading.

This adjudication highlights the risks associated with making "number one" claims, without having robust comparative evidence to support them.

HOUSEHOLD

6. Marcandi Limited, 10 August 2011

This decision concerns adverts for online auction site, Madbid.com, which made various statements as to the savings that could be made, in particular "an average of 80% off high street prices of RRPs." Examples of products that could be bid for and the savings made were shown, for example a picture of a MacBook Air was shown with text "Sold £47" and in crossed out text "RRP £1,149". The press advert also made the claim that Mad-bid was "not a game of chance but one of skill". The TV adverts included on-screen text "Cost of bids excluded."

Complaint / Decision

One complainant challenged whether the 80% average savings claim could be substantiated and whether the claim that the game was a game of skill was misleading. In addition complainants challenged whether the prices shown included the cost of the winner's bids and whether the adverts made clear that Madbid.com was a paid for auction site with a cost associated with each bid.

All of the complaints were upheld.

The ASA considered that consumers would interpret the 80% average savings claim as applying to all Madbid auctions. They were not persuaded by the limited evidence provided by Madbid to substantiate this, in particular there were only a few examples provided and the RRPs quoted were only typed, they did not demonstrate where the products were sold at the listed RRPs. In addition, many of the entries related to Madbid credits which were only sold by Madbid and could only be used to make further bids on the site. Therefore, the ASA consider that the savings claims did not show how customers could achieve a comparative saving on products that were generally available. The ASA considered that items that were only sold by Madbid could not be used as the basis for a savings claim in an advert referring to savings on RRPs and high street prices.

In relation to the question of whether use of the site involved sufficient skill so as not to fall foul of the unlawful lottery provisions in the Gambling Act 2005 (by being based solely on chance), the ASA considered that the auctions did not appear to be wholly dependent on chance. However, the ASA also noted that the winning scenarios in the Madbid adverts involved disproportionately low bids and that, in these circumstances, the auction could also depend on other factors such as the number of participants and their spending behaviour. Therefore, the ASA considered that the claim that the game relied on skill not chance was misleading.

In relation to the third complaint, Madbid said that they had changed the prices quoted to include the cost of the winning bids. However, in relation to two of the adverts, the ASA considered that the prices quoted did not represent the full price paid by the winners, therefore they were misleading.

In relation to the fourth complaint, the ASA accepted that it was clear that the advert was for an auction site and that viewers were likely to understand the nature of the service. However, they found that the text "cost of bids excluded" was not sufficient to make clear that there was a cost associated with each bid. The ASA considered that the cost associated with each bid was a significant condition and therefore it should have been made clearer in the adverts.

This decision makes clear the fine line between permitted competitions and unlawful lotteries. In addition, it serves as a reminder that RRPs, or similar, should not be used as the basis of a comparison which is not genuine, or if it differs significantly from the price at which the product is generally sold. Robust evidence is needed to substantiate the basis of RRP figures on which comparison or savings claims are based. The decision also makes clear that all costs involved in purchasing a product should be clearly set out.

7. HPAS Ltd t/a Safestyle UK, 24 August 2011

This decision concerned a radio advert for a promotion on double glazing included a voice-over stating, "but it's only this week... This week only, hurry, hurry..."

Complaint / Decision

One listener complained that the advert was misleading because it implied the offer was only available for one week, whereas he understood that the advert had appeared for longer than a week.

The complaint not upheld. The ASA considered that the clear two week period in between the offers, which were both limited to a week only meant that the advert was not misleading because the offers were both available for "one week only" at the time when the advert appeared.

This decision gives an indication of how advertisers may be able to run consecutive time-limited offers, provided there is a sufficient break period between them. Nevertheless, special care should be taken to ensure that any such practices also comply with the Consumer Protection from Unfair Trading Regulations 2008 and do not constitute misleading pricing practices, see the study issued last year by the OFT.

8. B&Q Ltd, 31 August 2011

This decision concerned a brochure for a kitchen sales promotion stating "kitchens Price Guide Valid from Tuesday 1st March...", with references to 25% off.

Complaint / Decision

A complainant challenged the advert was misleading because it did not state an end date for the promotion.

The complaint was upheld.

The CAP Code permits a promotion to be offered without including a closing date, however, the ASA noted that this was subject to the proviso that consumers are not disadvantaged as a result. Also, although the promotion lasted for five weeks, at the time the advert aired B&Q did not know how long it would run for.

The ASA considered the closing date to be "material information" that was likely to affect a consumer's decision on whether to make a purchase from B&Q. This is in line with the provisions of the Consumer Protection from Unfair Trading Regulations 2008, where, in relation to misleading acts or omissions, it is necessary to consider whether the omission is such that it causes, or is likely to cause, the average consumer to take a transactional decision he would not have taken otherwise. The ASA considered that the reference to "see online or ask in-store for more details" was likely to be seen as referring to further details about the promotion and was not sufficiently clear in alerting consumers to the fact that they would need to check to find out about a closing date. The omitted material in this instance disadvantaged the consumers and was therefore misleading.

The ASA noted that a closing date for sales promotions should be included when known and when not known, prominent qualifying text that directed consumers how to find out more information about the closing date should be provided.

Similarly, in the adjudication Moresand Ltd t/a Crystal Travel (31 August 2011) a promotion for flights which was stated as being "for limited period", but provided no end date for the promotion, was considered by the ASA to be misleading because the travel period during which flights must be taken was a significant factor which would influence a consumer's decision about whether to purchase the flights.

In addition, another complaint, concerning an advert for discounted Saga Holidays (Acromas Holidays Ltd t/a Saga Holidays, 31 August 2011) was upheld due to lack of availability. Despite the disclaimers ("Current fares shown are the lowest available at the time of going to print. Fares are subject to availability and change"), the ASA considered, in particular the reference to "Current fares", was likely to be interpreted as suggesting that the cited price, which was discounted by the maximum 35%, was generally available. The ASA stated that an approach that implied the maximum discounted price was the currently available price should not be used for advertising material that had a long shelf life or where it was the case that the price was not "current" by the time the brochure was received by many consumers.

ENERGY

9. Npower Limited, 24 August 2011

An email and a website for the energy provider, Npower Limited, stated "... if you don't already pay for your gas and electricity by Direct debit you could be missing out on a saving of up to £100 per year" with further text stating "Dual Fuel Direct Debit Discount Dual Fuel £100".

Complaint / Decision

The complainant challenged whether the claims were misleading because the advert did not make clear that the dual fuel discount was not available to customers on certain tariffs.

The complaint was upheld.

Npower stated that customers on the particular tariff referenced in the complaint were able to take advantage of the discount. However, those customers would lose their equivalent top up discount when they switched to direct debit so they not see an additional benefit. The ASA considered that this important qualification to the discount offered should have been made clear in the adverts. As a result, the ASA found that the adverts were misleading.

This decision is a good example of the need to ensure that any important qualifications to any offer are clearly stated so that customers are not misled as to their eligibility for such an offer or as to the scope of the offer made.

10. Danfoss Heat Pumps UK Ltd, 31 August 2011

This decision concerned a website for heat pumps which made various claims about the benefits of heat pump technology compared to other more conventional energy sources.

Complaint / Decision

The complainant challenged whether a number of claims, including:

"considerable savings in energy bills compared to conventional systems";

"for every 1 unit of electricity used, up to 4 units of heat are produced";

"energy efficiency average 400% across the year compared to boilers that are typically 70-95%"; and

"cost effective".

were capable of substantiation and whether they were misleading.

All complaints were upheld.

The ASA considered the claim "considerable savings in energy bills compared to conventional systems" to be an absolute claim. The evidence showed that savings would vary, and depended on many factors. Therefore, because the claim implied that all customers would see substantial savings, and this was not the case, the ASA considered that the claim was misleading.

In relation to the second claim, the ASA considered that, because they had not seen robust evidence relating to the whole system, the claim gave a misleading impression of the likely achievable energy output of the products working in the home.

The comparison of energy efficiencies with boilers was not substantiated because the estimates of efficiency of boilers were based on tests in domestic conditions, whereas the test on the heat pump unit was not run under comparable conditions.

In relation to the fourth claim, although the ASA noted that the full claim stated "cost effective passive and active cooling available", they considered that consumers would understand it to be a general claim that heat pumps were cost effective. Because the ASA had not seen sufficient evidence of this, they concluded that the claim had not been substantiated and was misleading.

Complaints against similar claims which were the subject of another adjudication this month (ACS Renewable Solutions Ltd, 3 August 2011), including the absolute claim "reduce your Winter Fuel Bills by 40%", were also upheld. The ASA considered that the five customer studies and particular set models used were not necessarily representative of homes generally and therefore were not a suitable basis on which to calculate possible savings for all customers.

Advertisers should ensure that evidence used to substantiate claims is based on fair testing and a sensible methodology. Once again, absolute claims need a higher level of substantiation and, as such, advertisers should be prepared to demonstrate that the benefits claimed apply in all circumstances.

MOTORING

11. drivethedeal.com, 10 August 2011

This decision concerns an email headed "Japanese Tsunami cuts car production. Car prices are set to rise due to lower levels of car production. Our clients should order now to beat the impending price increases."

Complaint / Decision

The complainant challenged whether (1) the claim that car prices were about to rise as a result of the Japanese tsunami was misleading and could be substantiated and (2) the email was offensive because it used a recent tragic event to advertise the service.

Neither of the complaints were upheld.

Drivethedeal provided evidence to show that dealerships that they used were decreasing the discounts offered due to the shortage in supply of cars and components as a result of the tsunami. This issue had also been reported in press articles. The ASA considered that this evidence sufficiently substantiated the claim and that consumers would interpret the claim to refer to general increases in car prices.

The ASA acknowledged that advertisers are entitled to refer to current news events in their adverts, provided that they do not exploit events for their own economic benefit. In this case, the advertiser merely made a factual reference to the tsunami, without further comment. Although the ASA acknowledged that reference to the tsunami was likely to be seen as tasteless and insensitive by some, in this context such reference was "unlikely to cause serious or widespread offence".

This adjudication provides helpful guidance for advertisers referring to recent news events in their advertisements. In particular, referring to an event can be permitted as long as the reference is proportionate to the claim it supports. Such references are also only likely to be an issue if the reference is likely to upset a wider section of the community as a whole, the ASA takes the approach that it "can't please everyone". Also of note is the idea that marketers may be able to rely on press articles as evidence to substantiate advertising claims.

OTHER

12. Commonwealth College of Business Management London Limited, 17 August 2011

This decision concerned advertisements in a local magazine and on a website encouraging students to study at the college. These adverts included images of central London landmarks, such as Big Ben and Tower Bridge. The website also included statements like "the opportunity for you to study in one or the most incredible places in the world – the City of London.... the opportunity of spending part of your life in one of the most historic, developed and powerful cities in the world." and included a section dedicated to life in London.

Complaint / Decision

Two complainants challenged whether the adverts were misleading because (1) they implied that the college was located in, or near to central London; and (2) the photograph included implied that the whole building was part of the college campus, instead of just one floor.

The complaints were upheld, except that the first complaint was not upheld in relation to the local magazine on the basis that it was only distributed to the areas surrounding the college, so the ASA concluded that the readers would be familiar with the location of the college (the address of which was printed on the bottom of the magazine) and as such would not be misled as to its location.

In contrast, the numerous references on the website to living and studying in the City of London and the numerous pictures of central London landmarks would create a strong impression that the college was located in central London, particularly with international students who would not necessarily be familiar with the geography of London, and would expect the college to be located more centrally. Therefore, the ASA considered that the advert gave a misleading impression of the location of the college.

In addition, the description of the picture of the building as a "campus" combined with the many references to the college campus misleadingly implied that the college occupied the whole building. To avoid any risk of misleading advertising, marketers should take care not to use pictures that are unrepresentative of the location of a particular service.

This can be compared to another adjudication this month concerning reference to locations (Jet2.com, 3 August 2011). In that decision, the ASA did not uphold a complaint that the use of a photo of a beach scene for a "Summer Flight Sale" where discounted flights were only available at the quoted price to three European cities (not beach destinations) was misleading, because they considered that readers would understand the advertisement to relate to the "summer" period of travel, rather than the specific destinations. This decision was probably helped by the fact that the advertiser was able to show that there were flights available to beach destinations and the "from price" price for these flights was also listed in the advert.

13. Pricing Practices (various)

This month the ASA adjudicated on a variety of complaints concerning price listings and comparisons from a range of advertisers advertising on a range of mediums. According to the BIS Pricing Practices Guide, it is recommended that a comparison with an advertiser's own previous price should, in general, be with the immediately previous price for that product and, where the comparison is with an earlier price, the basis of that comparison should be made clear. The Guide also recommends that previous prices used in comparisons should have been available for 28 consecutive days.

In Ebuyer UK Ltd (10 August 2011), a complaint about a website advert for an IPad2 tablet PC which featured the price £665 scored through and text stating "save £16.00, now £649.00" was upheld on the basis that it was misleading, because the product had only been available at the higher price for five days and therefore had not been advertised at the higher price for a reasonable amount of time. In addition, the number of products sold during the initial period was significantly below the number of products sold at the lower price. The ASA considered that readers would understand from the advert that the prices displayed were the initial prices at which EBuyer had sold the product for a significant period immediately preceding the price reduction. If this were not the case, information concerning the period during which the initial price had been offered should have been included. The ASA also noted that the initial price of £665 which Ebuyer sold the product at was actually higher than the RRP of £559 used by the manufacturer's recommended retailers. Advertisers should not display new prices as a price reduction unless the product had been sold at the previous price in sufficient numbers and over a sufficient period.

Similarly, in Buy It Direct Ltd, t/a appliancesDirect.co.uk (3 August 2011), a complaint was upheld against a website advert for a cooker, priced at £3,064.97, which featured the text "Was £3,370.19 You save £305.22". The advertiser said the product had been advertised at the higher price and their system populated prices automatically. However, since the ASA was unable to verify if or when the product had been sold at £3,370.19, it considered the "was" price of £3,370.19 and saving price of £305.22 had not been substantiated and therefore the claim was misleading.

An example of a complaint that was not upheld is the decision in The Carphone Warehouse Ltd t/a Best Buy (3 August 2011). This concerned a regional press advert with text stating "Model:32KV500 Freeview, USB input ... NOW £199.99". The text "was £399.99*" was crossed through. Footnoted text at the bottom of the advert stated "*Previous price valid in-store only from 8/10/10 - 11/12/10". The ASA accepted evidence that the TV had been priced at £399.99, albeit for less than 28 consecutive days in each instance, in store for a period of 47 consecutive days during October and December 2010 and in February 2011, and online for two periods in October and November 2010. In addition, the ASA considered that the qualifying text clearly identified the basis of the price comparison and therefore the advert was considered not to be misleading.

The ASA have also reviewed complaints in relation to the substantiation of "RRP" price comparisons, which issue featured significantly in the OFT's study on price framing at the end of last year.

In Home Shopping Selections Ltd (24 August 2011), the RRP used could not be substantiated (the screen shot provided featured a different product retailing at a different price). In the same adjudication, the advert was found to be misleading on the basis that the prices quoted did not include compulsory postage and insurance cost. It is an always unfair practice under the Consumer Protection from Unfair Trading Regulations 2008 for a product to be described as "free" when the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice.

Another issue with RRPs is that they should not be used for goods that only the advertiser supplies. In Made.com Design Ltd (10 August 2011), complaints about an advert identifying "high street price" and using this to compare with the advertiser's sale price was upheld on the basis that the advertised products were not available on the high street. The ASA acknowledged that benchmarking with an identical product was not always possible, noting that in these circumstances, the benchmarking should be done against substantially equivalent products. In this case, the ASA considered that the advertised products differed in several respects from the benchmarking products. In addition, the ASA considered that readers would infer from the comparisons to high street prices that Made.com was cheaper than all high street retailers for each advertised product by the amounts shown, or that the price advantage claimed by comparison to the "high street price" was indicative of the likely saving for the customer by buying from Made.com. However, they noted that the benchmarking information had been taken from only one high street retailer. Therefore, the ASA considered these claims to be misleading. Interestingly, one of the complainants was a branch of Trading Standards.

This was also addressed in Paul Simon Curtains (London) UK Ltd (17 August 2011), in which a claim for "50% off RRP prices" was found to be misleading because the products were unique to the retailer and not sold elsewhere. The ASA noted that the BIS Pricing Practices Guide stated that marketers should not use an RRP or similar comparator for goods that only they supplied.

In Dreams PLC (24 August 2011), a complaint against a promotion being described as the advertiser's "biggest ever sale" was not upheld because the advertiser was able to show that the sale contained more stock and more ranges of furniture at sale prices than in their previous biggest sale. The complainant also challenged whether the prices were genuine sale prices because the advertiser was continually advertising a sale. The ASA noted the 2010 BIS Pricing Practices Guide stated that a price used as a basis for comparison should be the most recent price available for 28 or more consecutive days, that comparisons should not be made with prices last offered more than six months ago and, in the case of after-sale prices, sale items should be offered at these prices for a period of at least 28 consecutive days in the three months after the end of the promotional period. The ASA therefore considered it acceptable that some of the price comparisons in the wider sale were based on future prices rather than previous prices.

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 29/09/2011.