UK: ASA Adjudications Snapshot – September 2011

Last Updated: 3 November 2011
Article by Susan Barty, Alex Bowtell, Stuart Helmer and Lucy Kilshaw

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

This month the ASA considered complaints about availability and administration of promotions, number-1 type claims and substantiation of savings claims. In addition, of particular interest are the ASA's decision against General Mills for its Old El Paso fajita dinner kit, which it considered did not make clear which ingredients were and were not included in the kit, and the fantastical Heineken advert which was considered not to associate alcohol irresponsibly with social or sexual success or to encourage dangerous behaviour. Other high profile decisions include adjudications against Tesco, Del Monte, Unilever and Phones 4 U.

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ADJUDICATIONS

FOOD AND DRINK

  1. Aldi Stores Limted, 7 September 2011 (An intentionally humorous comment in a TV advert for Aldi teabags, where the main character states her preference for gin over tea, was not found to be irresponsible)
  2. General Mills UK Limited, 7 September 2011 (A TV advert for Old El Paso Crispy Chicken Fajita dinner kit which did not make clear which ingredients were not included was considered misleading when taken in conjunction with the name of the dinner kit and the images shown)
  3. Tesco Stores Limited, 14 September 2011 (An advert for sausages that included images of pigs roaming freely created a misleading impression as to the conditions that the pigs from which the sausages were produced were reared in)
  4. Heineken UK Limited, 21 September 2011 (A TV advert for Heineken featuring a charming, popular and multi-talented man arriving at a party did not irresponsibly associate alcohol with social or sexual success, nor did it encourage dangerous behaviour)
  5. Del Monte Europe Ltd t/a Del Monte, 21 September 2011 (The claim that a taste test established a preference for a particular product was substantiated by adequate evidence, however the advert mislead as to what products were being compared)

COMPUTERS AND TELECOMS

  1. Phones 4 U Limited, 7 September 2011 (A cartoon-like depiction of Jesus in an advert for "Miraculous" phone deals, shown during Easter week, was considered to be offensive, particularly to Christians)

HOUSEHOLD

  1. Unilever UK Limited, 14 September 2011 (A complaint was made by Procter & Gamble as to whether the "most-trusted" claim made in an advert for Comfort Pure could be substantiated on the basis of sales data)

COSMETICS

  1. Diomed Developments Limited, 14 September 2011 (A competitor challenged whether Diomed's claim that Freederm gel was "the only" spot treatment with anti-inflammatory was misleading as their product also included anti-inflammatories. The ASA found that Diomed was right to exclude this competitor from the comparison)
  2. MyCity Deal Limited t/a Groupon, 7 September 2011 (A promotion for Live Blood testing at Harley Street stated that the blood testing could detect food intolerances was not substantiated)

LEISURE

  1. Trainline.com Limited, 7 September 2011 (The basis of a savings claim about the cost of train tickets was not made clear.  Similar decisions are also considered)

OTHER

  1. News Group Newspapers Limited t/a The Sun, 7 September 2011 (The availability of a free giveaway was challenged. The ASA was satisfied that adequate research and measures had been taken by The Sun. This decision is compared with two others in which complaints concerning the administration of promotions were upheld)
  2. The Money Advice Service, 14 September 2011 (A website offering general financial advice did not misleadingly imply that it also offered technical advice on specific products)

MAIN ARTICLE

FOOD AND DRINK

1. Aldi Stores Limted, 7 September 2011

This decision concerned a TV advert for a supermarket which featured a woman holding a pack of PG Tips and saying "I buy this tea for my husband. He likes tea..." She then held up a pack of Aldi tea bags and said "He also likes this one". The woman then stated "I don't like tea. I like gin" and picked up a glass and drank from it. The text on screen stated "Aldi. Like brands. Only Cheaper".

Complaint/ Decision

Fifteen complainants challenged whether the advert was irresponsible because it encouraged irresponsible drinking, and suggested gin was a suitable substitute for tea. In addition, complainants, including several doctors, said they believed the advert made light of alcoholism. Another complaint was that the advert was inappropriate for broadcast during the day.

None of the complaints were upheld.

The ASA noted that the women featured did not appear intoxicated and there was no suggestion that she was an alcoholic. The ASA also found that the advert did not imply gin was a suitable alternative to tea. The ASA considered that, although some viewers would find the advert to be distasteful, others would be likely to consider it to be humorous. As such, it was not irresponsible. In relation to the complaints relating to the advert being broadcast during the day, the ASA considered that a scheduling restriction was not required, because the advert featured an elderly woman and therefore did not glamorise the consumption of alcohol and was unlikely to have strong appeal to under18s.

This adjudication shows how, even where there have been a reasonable number of complaints, the ASA can take a sensible approach.  It also highlights the value of humour, when carefully used.

2. General Mills UK Limited, 7 September 2011

This decision concerned a TV advert for the Old El Paso Crispy Chicken Fajita dinner kit, which showed a boy making a fajita with various ingredients. A voice-over stated "Oven baked Crispy Chicken Fajitas from Old El Paso. A soft flour tortilla. Bouncy fresh lettuce. Crispy crunchy chicken. Tangy salsa and cool sour cream..." On-screen text stated "Fresh chicken not included".

Complaint/ Decision

Two viewers challenged whether the advert was misleading because it was not clear which of the ingredients shown in the advert and mentioned in the voice-over were supplied in the dinner kit.

The complaint was upheld.

The ASA understood that chicken, lettuce and sour cream were not included in the kits and thought it unlikely that viewers would expect lettuce to be included in the dinner kit. However, despite the fact that this was not a chilled product, they thought it likely that the voice-over and images of chicken in the advert would give some customers the misleading impression that chicken was included in the kit. The ASA considered that the name of the dinner kit would reinforce this understanding. The on-screen text "fresh chicken not included" was not sufficient to explain which ingredients were supplied with the product and did not remove the overall impression that chicken was supplied. Nor did the ASA consider that including the phrase "serving suggestion" would go far enough. As such, the ASA considered the advert to be misleading.

Advertisers should take care to select images that are representative of the product supplied, the inclusion of products that are not part of the offer can be misleading. This decision is interesting because the ASA still thought that consumers would think that chicken would be included, despite the fact that it was not an issue that fresh ingredients were not included and that this product would not be sold in the chilled section of the supermarket where fresh meat would need to be kept.

3. Tesco Stores Limited, 14 September 2011

This decision concerned a TV advert for sausages included a voice-over that stated "Why not try specially selected, British farmed...butcher's choice bangers..." The advert contained images of pigs roaming in a field and also images of pigs in a barn and walking down a lane.

Complaint/ Decision

Four complainants challenged whether the advert was misleading because they understood that the meat used in Tesco-branded sausages came from pigs that were bred and reared indoors.

The complaint was upheld. Tesco drew the ASA's attention to the images of the pigs in the barn, to demonstrate that the advert showed pigs both indoors and outdoors. The ASA also acknowledged that the industry-wide recognised meaning of the term "outdoor bred" was that the pigs were born in fields and kept outside until weaning, then moved indoors. However, the ASA noted that in all scenes in the advert the pigs were shown in spacious and free environments; even in the barn scenes, the barn doors were  open and the pigs' movement was unrestricted. As a result, the ASA considered that consumers would be likely to interpret the advert to mean that the pigs used to make the sausages were reared in an unrestricted environment. As this was not the case, the ASA concluded that the advert was misleading.

Care should be taken to ensure that images are representative of the product offered and do not give the consumer a false impression. This is likely to be particularly the case in relation to food adverts where an impression is given of different conditions to those in which the animals are bred and reared.

This decision can be contrasted with the ASA's earlier "Happy Egg" decision  Noble Foods Ltd (Law-Now, April 2011), concerning adverts which showed images of hens running outside and featured a voice-over stating "at the Happy Egg company we do things differently. We create the perfect environment for our free range hens to run, jump and play...". In that decision, complaints that the adverts misrepresented conditions experienced by Happy Eggs' chickens were not upheld because the ASA considered that most viewers would see the adverts to be a humorous depiction of the life of a Happy Egg Co chicken, rather than that the chickens really did take part in the activities shown in the adverts. In addition, Noble Foods were able to evidence that they adhered to the RSPCA Freedom Food Scheme, used gold and platinum graded free-range farms only, and had invested in activity kits for their chickens

4. Heineken UK Limited, 21 September 2011

This decision concerned a TV ad for Heineken beer showing the main character, a smartly dressed man, entering a party, where he is shown declining a cocktail in a Martini glass in favour of a bottle of Heineken, The main character is distracted by another guest before he can take the beer. He is then shown walking through the party, greeting different guests in various ways. A woman is shown looking at him admiringly. The main character is shown with a number of different guests in a number of guises. The main character is shown whipping a tablecloth from under glasses and bottles of Heineken without knocking them over, which he is then shown using to wipe the corner of a woman's mouth, whilst being  applauded by the other guests. The rest of the advert continues to show a variety of mildly fantastical scenarios. The main character is then shown juggling a bottle of Heineken between himself and another man in a series of quick martial arts style moves before leaving the bottle in the other man's hand. He is finally shown being handed a bottle of Heineken with on-screen text stating "Heineken open your world".

Complaint/ Decision

Molson Coors Brewing Company (UK) Ltd and three viewers challenged whether the advert was irresponsible because they believed that it implied that: alcohol could enhance personal qualities and talents; alcohol contributed to the man's popularity and confidence; and that the success of the social occasion and the man's social success was as a result of drinking alcohol. Complaints were also made that the advert linked alcohol with sexual success and with daring behaviour.

The ASA did not uphold any of the complaints.

The ASA considered the main character to be "charismatic" and thought that he "displayed prodigious talents". The fact that he had declined a martini cocktail on entry to the party, in favour of a bottle of Heineken, established him as a Heineken drinker early on. But, because he did not take this drink and he was not seen drinking Heineken during the advert, there was no cause and effect between drinking Heineken and the man's qualities and talents. Therefore, the ASA considered that the fact that the man was a Heineken drinker was incidental to his personality and talents, and consequently, that the advert did not irresponsibly imply that alcohol could enhance personal qualities and talents.

In addition, the ASA considered that, because the man was established as being confident and popular from the outset (he appeared well known to the guests and may have been famous because of the paparazzi interest in him), there was no suggestion that consuming Heineken had contributed to his popularity and confidence.

The ASA considered that the amount of alcohol seen to be available to guests generally at the party was not excessive and that alcohol was not a prominent feature of the party. Although the party became more vibrant following the arrival of the main character, this was due to his charismatic nature, not to the consumption of alcohol. In addition, although the ASA acknowledged that the party might seem to get more lively in the final scene, when the main character held aloft a bottle of Heineken, they considered that the additional vibrancy at this time was as a result of the guests moving into the room where the live music was being played. Therefore, the ASA concluded that the advert did not irresponsibly imply that the social success of the party was as a result of drinking alcohol. 

The ASA considered that, in addition to the fact that the main character was not seen consuming alcohol during the advert, because it was established from the outset that the main character was well known and possibly famous, he appeared well-travelled and the manner in which he greeted some of the guests suggested that they were good friends, although he was established as a Heineken drinker,  the advert did not irresponsibly imply that the social success of the main character was as a result of him drinking alcohol.

Although two of the female guests gave the main character admiring, lingering looks and he dabbed the corner of one of the females' mouths following his trick with the table cloth, the ASA considered that these exchanges were very subtle and brief and were, at most, mild flirtations.  The ASA therefore concluded that the advert did not irresponsibly link alcohol with sexual success. In relation to the complaint about the advert linking alcohol with daring behaviour, the ASA considered that the martial arts exchange was playful and light hearted, it was not reckless or dangerous and the consequences of it going wrong were trivial. Therefore, they concluded that the advert did not irresponsibly link alcohol with daring behaviour.

This advert is similar to the Miller Genuine Draft advert (Miller Brands (UK) Ltd, ASA decision 19 September 2007) which showed a man roller skating and performing various stunts. Complaints that the advert suggested alcohol could increase popularity and confidence and that it linked alcohol with sexual success were rejected on the basis that, although the roller skater appeared to be self-assured and confident in his roller skating, the advert did not present this as a consequence of him choosing to drink alcohol. In addition, similarly to the Heineken decision, the ASA considered that the skater's interaction with the woman who caught his eye while he was skating was no more than an acknowledgment, or at worst mild flirtation. However, complaints that the Miller advert would appeal to under 18s were upheld. The ASA considered the Miller advert in the round and found that the action of roller skating in conjunction with the tricks was likely to appeal to under 18s. The Heineken advert, in contrast, has an overall ambiance that is more grown up and mature, which explains the contrasting decisions in this respect.

5. Del Monte Europe Ltd t/a Del Monte, 21 September 2011

This decision concerned a TV advert for Del Monte, featuring a taste test scenario in which several members of the public in a shopping centre were seen tasting orange-coloured juice, surrounded by crates filled with oranges. A voice-over stated "In a recent test, the majority of people preferred the taste of Del Monte to the leading juice brand."  On-screen text stated "54% of 144 respondents, non chilled juice verify at thedelmonteblog.com". The voice-over continued "Discover Del Monte juice. Now on offer at participating stores. Del Monte. Say yes to the best." The final scene showed six cartons of different flavoured Del Monte juices, including orange juice, surrounded by whole and sliced oranges.

Complaint/ Decision

PepsiCo UK & Ireland complained that the advert was misleading, because it was unclear whether the taste test was carried out on orange juice only, or the entire fruit juice range; and because the claim "In a recent test, the majority of people preferred the taste of Del Monte to the leading juice brand." implied that Del Monte had been compared to the overall leading juice brand rather than the leading non-chilled juice brand. In addition, they also complained that the overall impression given by the advert, that the taste test demonstrated a significant preference for Del Monte juice, was misleading and could not be substantiated.

The ASA upheld the first two complaints, but did not uphold the last complaint. 

Although the ASA acknowledged that the advert had shown those participating in the taste test drinking an orange-coloured juice and had featured whole and sliced oranges in the background throughout, and they considered that this went some way towards implying to viewers that the taste test was carried out with orange juice only, this alone did not make it sufficiently clear to viewers that it was orange juice being compared. The ASA noted that the Del Monte range, featured in the end frame, contained at least two other orange-coloured juices – mango & papaya, and pineapple & peach.  The colour of the juice therefore did not clearly convey that it was orange juice that was being compared. The ASA also found that the voiceover comparing "Del Monte" with the "leading juice brand" did not make it clear that this was referring to orange juice specifically. The on-screen text referring to "non-chilled juice", was considered to have a similar effect. In addition, the shot at the end of the advert which featured six cartons of different flavoured juices alongside the slogan "say yes to the best" again had no reference to orange juice specifically. The ASA therefore considered the advert to be misleading because it was not sufficiently clear that it was only orange juice being compared.

The ASA noted that the voice-over simply referred to a comparison with the "leading juice brand", and because the on-screen text stating "54% of 144 respondents, non-chilled juice verify at thedelmonteblog.com" which was intended to qualify this to make it clear that the comparison was carried out with the leading non-chilled juice, was not sufficiently clear in its meaning and its presentation, the ASA considered that viewers could have been misled into thinking Del Monte juice had been compared to the overall leading juice brand, rather than the leading non-chilled juice brand. Therefore the ASA considered it misleading.

The final complaint was not upheld.  The ASA considered that the methodology of the taste testing was sound and that it was carried out with a sufficiently large sample. Therefore, it was acceptable in supporting a claim based on the subjective impressions of the participants. The on-screen text referring to "54% of 144 respondents" was sufficiently clear to give an overall impression that the preference was slight and therefore the ASA considered that the advert was not misleading in this respect.

This decision can be contrasted with the ASA adjudication on Costa Ltd (Law-Now June 2010) which involved an print advert that stated "7 out of 10 coffee lovers prefer Costa" and small print below stating "In head-to-head taste tests, 7 out of 10 coffee lovers preferred Costa cappuccino to Starbucks". Starbucks challenged this advert on the basis that it misleading implied that individuals had a preference for all Costa products, when in fact it referred only to cappuccinos. They also challenged whether the qualifying text was sufficiently prominent and legible. The ASA did not uphold any of these complaints. In contrast to the Del Monte decision, the qualifying text was considered to be sufficiently prominent to capture consumer's attention. They also considered the results to be statistically significant and noted there was an adequate sample size.

These contrasting decisions make it rather unclear as to what would need to be included in qualifying text to substantiate a comparison claim. Including qualifying text that it is not too small is likely to assist, but advertisers must clearly also ensure that statistics are relevant and that the sample is adequate in size to be representative.

COMPUTERS AND TELECOMS

6. Phones 4 U Limited, 7 September 2011

A national press advert for Phones 4 U featured a cartoon-like graphical illustration of Jesus Christ grinning and winking, pointing a finger with one hand and displaying a thumbs-up sign with the other. The Sacred Heart featured on his chest. Headline text stated "Miraculous deals on Samsung Galaxy Android TM phones".

Complaint/ Decision

98 complainants challenged whether the advert was offensive because of the depiction of Jesus Christ and the Sacred Heart, the use of the term "miraculous" and the publication of the ads during the Easter period were disrespectful to the Christian faith.

The ASA upheld these complaints. Although the ASA acknowledged that the adverts were intended to be light-heated and humorous, they considered that the combination of the image of Jesus winking, the word "Miraculous" and the publication during Easter, gave the overall impression that the advertiser was "mocking and belittling core Christian beliefs" and found that the advert was likely to cause serious offence, particularly to Christians.

The use of religion in adverts is always sensitive and often liable to attract complaints. In this case, the fact that the adverts were published during Easter week is likely to have been significant. This can be compared with the ASA's earlier decision in  Daybrook House Promotions Ltd (Law-Now January 2011) in which, the ASA allowed an advert featuring an image of the Virgin Mary holding a disco ball, because it took the view that the portrayal of the concepts that originated in religion was light-hearted and did not portray a religious figure negatively.

HOUSEHOLD

7. Unilever UK Limited, 14 September 2011

This decision concerned a TV advert, poster advert and press advert for a fabric condition that all included the wording "The UK's most trusted fabric conditioner for sensitive skin". The TV advert included a voice-over "Comfort Pure, because nothing makes clothes softer" and on-screen text that stated "Comfort Pure vs other leading brands". Further text stated "Hypoallergenic & Dermatologically tested". A voice-over then stated "No wonder it's the UK's most trusted for sensitive skin" and smaller text on the bottom of the screen stated "Based on IRI sales data 08/10 – 12/10."

Complaint/ Decision

Procter & Gamble UK ("P&G") challenged all adverts on the basis that the claim "most trusted conditioner for sensitive skin" was misleading because they did not consider that trust could be inferred from sales data, nor the assertion that "nothing makes clothes softer". Additionally, the poster and press adverts were also challenged on the basis that the data qualification was omitted from these adverts.

All complaints were upheld.

The ASA noted the IRI evidence from Unilever that showed Comfort Pure had an 11% share of sales for the year ending February 2011, which was greater than any competing product. Further, the repeat purchase rates for Comfort Pure were relatively high.

However, the ASA considered that the "most trusted" claim was broadly synonymous with a Number 1 claim and considered it required the same level of substantiation. The ASA considered that a consumer's decision to purchase was not solely dictated by trust, other factors were involved. In particular, the ASA considered that "most trusted" is not synonymous with "most frequently purchased".  Although the ASA considered that the on-screen text made it clear that the claim was based on sales figures, they considered that sales data was not appropriate substantiation for a "most trusted" claim. As a result, they considered that this contradicted rather than clarified the claim, and concluded that the advert was misleading.

In addition, the ASA noted that Unilever had submitted an independent survey in which 351 consumers were asked which fabric conditioner they most trusted. However, consumers were only given the choice between Comfort Pure, the leading branded competitor that Unilever indentified as being marketed specifically for sensitive skin, and a third, relatively new, product which Unilever anticipated would become a major branded competitor. Therefore the ASA did not consider this survey comprehensive enough to support the "most-trusted" claim. Furthermore the ASA noted that, had Unilever intended to base the most-trusted claim on the survey, it should have been made clear in the advert.

The second complaint was upheld on the basis that the ASA considered that consumers would expect most-trusted claims to be supported by something other than sales data. They did not consider that the sales data or the survey submitted were sufficient substantiation for the claim.

This adjudication shows that advertisers should only seek to rely on data which actually substantiates the claims that they are making, and sales data alone is unlikely to be relevant to subjective claims. It also indicates the sorts of claims that the ASA consider to be analagous to a Number 1 claim and therefore will require a high level of substantiation.  This can be contrasted with a claim such as the "nothing makes clothes softer" claim, which, if used on its own as a "top parity" claim, would have been easier to substantiate.

Similarly, in another "number 1" claim decision, Apple (UK) Ltd, 14 September 2011, a complainant challenged whether the claim "iPhone 4 the world's thinnest smartphone" was misleading because he believed the Samsung Galaxy S II Phone was thinner.

The complaint was not upheld. The ASA noted that the Samsung phone had thinner points, whereas the iPhone 4 had a uniform depth. The ASA took the view that consumers would be less interested in whether certain points were then, if other bulges made the overall thickness greater. The relevant comparison was between the iPhone 4's thickest point and the Samsung phone's thickest point. On this basis, the iPhone 4's thickest point was thinner and as such the claim was not misleading.

COSMETICS

8. Diomed Developments Limited, 14 September 2011

A TV advert for a spot treatment, Freederm Gel, stated "The only spot treatment with an anti-inflammatory, which helps stops your angry spots...Nothing else works like this".

Complaint/ Decision

SkinMed Limited challenged whether the claim that Freederm Gel was "the only treatment" with anti-inflammatories was misleading, because their Aknicare product also contained four anti-inflammatories.

The complaint was not upheld.

The ASA noted that the four anti-inflammatories contained in the SkinMed Ltd product were not commonly known to have anti-inflammatory effects and that Aknicare was not a licensed medicine, whereas Freederm Gel was. By contrast, Freederm Gel contained an ingredient recognised by the MHRA as an anti-inflammatory. The ASA found that it was reasonable for Diomed Developments to exclude the Aknicare product from the comparison, because it was not a formally licensed medicinal product. The ASA therefore concluded that the claim "The only spot treatment with an anti-inflammatory" was not misleading, particularly in the context of the additional text "Nothing else works like this".

The decision shows the importance of comparing like with like. Because Diomed were able to demonstrate that the Akincare cited to oppose their claim did not have similar characteristics to the product they were advertising, the ASA concluded that this did not justify the complaint.

9. MyCity Deal Limited t/a Groupon, 7 September 2011

A sales promotion on Groupon's website had headline text "Food Intolerance and Allergy Testing Session for £59 at Live Blood Test on Harley Street". Further text included "Highlights: ...Food intolerance, allergies and weight loss testing...Whether it's for undiagnosed allergies or intolerances, helping prevent future problems, battling fatigue or slimming down a tad, the advanced technology can help to determine a suitable nutritional programme, helping maintain the body's natural defence mechanism."

Complaint/ Decision

The complainant challenged whether each of the medical claims (detecting food intolerances, battling fatigue, assisting weight loss and maintaining the body's natural defence mechanism) were misleading.

All complaints were upheld. The ASA found that Groupon was unable to provide evidence to substantiate the claim that food intolerances could be detected. As a result, the other claims could also not be substantiated because they were dependent on the first claim. Therefore, all claims were misleading.

Advertisers are reminded that they should hold documentary evidence to substantiate claims that consumers are likely to interpret as objective (particularly medicinal claims) and therefore capable of substantiation.

In a second adjudication against Groupon, MyCityDeal Limited t/a Groupon, 21 September 2011, the ASA found that the claim "Laser Teeth Whitening at Smart Smile for £89 (value £350)" was misleading, because the value of teeth whitening had been exaggerated. Although Groupon had submitted a screen shot of their partner's website and a receipt to substantiate the claim, the ASA did not consider that this sufficiently evidenced the claim, because it was not clear whether a transaction had been made for £350 by a customer and it stated "Whitening Service" not "Laser Teeth Whitening" as claimed in the advert. Therefore, they found the advert to be misleading.

Savings claims should not be made unless there is evidence to substantiate the original price. This ties in with the requirements of the BIS pricing guidelines. Interestingly, Groupon said that they have now implemented a price verification process, so that going forward their partners would be required to submit documentary evidence of all prices quoted as original values. We will wait to see whether this mechanism works. It is also interesting to note that, in addition to the formally adjudicated cases, Groupon have also had four informally resolved cases this month.  Where a case can be resolved informally, this is clearly advantageous for the advertiser.

LEISURE

10. Trainline.com Limited, 7 September 2011

A TV advert for thetrainline.com featured a number of people dancing to music on a train station platform. Some of the people carried placards that stated "Save 43% on average" and "Save up to 6pm the day before travel". On screen text briefly featured and stated "Advance fares and selected routes only. Subject to availability."

Complaint/ Decision

Viewers challenged whether the claims "save 43% on average" and "save up to 6pm the day before travel" were misleading and could be substantiated. Additionally, viewers challenged whether the advert was misleading because it failed to state that a booking fee was charged.

The first two complaints were upheld, but the complaint in relation to the booking fee was not.

TheTrainline.com provided evidence that, over a two-year period, customers who bought advance tickets had saved an average of 43%, when compared to the price of the cheapest available non-advance tickets for the same journeys. However, the ASA noted that advance and non-advance tickets were different types of ticket and considered that clear information should be given as to the basis of the claim, because  some people would understand the claim to be a comparison with the same type of ticket from another company, not simply a comparison with the non-advance ticket from the same outlet. In addition, it was noted that the qualifying text "Advance fares and selected routes only" did not appear on screen at the same time as the savings claim. Therefore, the ASA concluded that the claim was misleading.

Interestingly, in relation to the booking fee complaint relating to the advert, the ASA considered that viewers would expect a savings claim to be based on the advertiser's total price, including all non-optional taxes, duties, fees and charges. However, they concluded that, because in this case, thetrainline.com had based their claims on calculations that included the booking fee, in the context of this advert, it had not been necessary to refer to the booking fee separately.

Similarly, in Everest Limited, 7 September 2011, A complainant challenged whether the claim "generate up to £1614* per year for 25 years tax-free" in a direct mailing for Everest solar panels was misleading and could be substantiated, because it did not take into account the costs of installation and upkeep.

The complaint was upheld. The ASA considered that the installation costs did not need to be included in the calculation, because customers would be aware that some initial capital payment would be required on installation, in order to begin generating income from the system. However, in contrast, the ASA noted that the upkeep costs would be incurred over the life of the system and would clearly affect how much income a customer would make over the period of time. Therefore, the ASA considered that these costs should have been included in the calculation. Because these costs were not included, the ASA concluded that the advert was misleading.

Marketers must be sure to make the basis of any savings claim clear. Qualifying text should appear at the same time as a savings claim. Advertisers should take care not to omit information, in particular all information regarding costs and pricing should be included.

OTHER

11. News Group Newspapers Limited t/a The Sun, 7 September 2011

This decision concerned a national press advert for The Sun, which stated "Free Lego toy with this paper, pick up at WH Smith, TOYS R US. VOUCHER: Page 18." Additional text stated the advert was "subject to availability, terms and conditions apply" and a radio advert which stated, "The Sun are giving away free Lego toys...Only while stocks last."

Complaint/ Decision

Seven complainants challenged whether the promotion had been administered fairly, because they had been unable to redeem their vouchers as a result of low stock levels.

The complaints were not upheld. The Sun provided evidence that they had undertaken a study of similar offers to help them make estimates of required stock and that this had been updated on a daily basis as a result of feedback from store managers in the 660 participating retail outlets. In addition, they had offered to post an equivalent item to anyone who was unable to redeem the toy, and they had put aside a large quantity of toys in preparation for this. The Sun had also manned their customer service team with extra staff to explain to customers who were unable to redeem the voucher at their local store, that they could still claim the toy and stated that the out-of-hours message also made this clear. As a result, the ASA found that The Sun had taken reasonable steps to estimate the likely response to the promotion and that it had been administered fairly.

By contrast, in Newmarket Promotions Limited, 7 September 2011, a complaint was upheld about an advert for a holiday offer in a regional paper which stated "Fantastic late deal! Hidden Portugal, flying direct from Norwich....take advantage of this very special late deal...Book now to take advantage of these sensational prices!" and "Alternative departure dates also available at standard prices", on the basis that the complainant  had been unable to book the holiday the day after the publication because it had sold out.

Newmarket informed the ASA that there had been 19 places for the holiday when they had submitted the advert for publication, but all had been sold by the time the advert was published. The ASA noted that the CAP Code requires marketers to monitor stocks and "wherever possible" to withdraw communications if the product becomes unavailable and concluded that Newmarket should have had processes in place to stop the publication in the event that the holiday became unavailable.

In addition, in Malaysian Airline System Berhad, 7 September 2011, a complaint about a website and a regional press advert offering airline tickets to Malaysia for £305 which stated, "Book now" and gave the booking period and the travel period, and included the text "10,000 seats to Malaysia up for grabs", was upheld because the complainants were either unable to find the flights at the advertised price, or the flights had sold out. Malaysian Airline System Berhad was unable to provide adequate evidence to demonstrate that at least 10% of the flights promoted were available/ sold at the advertised price, and as such, the adverts were misleading.

These decisions show that it is important for advertisers to have detailed evidence to substantiate claims relating to the availability of offers. Stock levels should be monitored throughout the term of the promotion and advertisers must ensure they take reasonable steps to estimate the likely response to a promotion. In doing so, it is possible to use past experience from other similar promotions to estimate likely uptake, provided the previous promotion is suitably comparable.

12. The Money Advice Service, 14 September 2011

The decision concerned a TV advert for a website called "The Money Advice Service" that offered information and advice about financial products and services. The advert stated "...our advice is independent and unbiased....The Money Advice Service, helping you feel good about money".

Complaint/ Decision

Seventy-seven complainants challenged whether the website name "The Money Advice Service" and the claim in the advert relating to "our advice" were misleading because they understood that the website offered information and guidance, but not advice.

Two complainants challenged the claim that the advice is "independent and unbiased", because they believed it implied that the information provided by the advertiser would be protected by professional indemnity cover, which it was not.

Four complainants challenged whether the claim "set up by government" in the TV ad was misleading, because they believed the website had been set up by the Financial Services Authority, which was independent of the government.

None of the complaints were upheld.

In relation to the first complaint, the ASA took the view that most consumers would understand the references to "advice" to mean that The Money Advice Service offered general information, guidance and advice on financial issues and products in a general, as opposed to offering the sort of specific, technical advice that Independent Financial Advisers ("IFAs") did. The ASA noted that there were no claims to offer advice on particular products. Therefore, it was clear that the advice was general advice about managing finances. As a result, the ASA considered that the claim was not misleading.

In relation to the second complaint, the ASA considered that most consumers would understand the reference to "independent" advice to relate to the fact that the advertiser was not affiliated to any particular financial services provider. As a result, the ASA considered that consumers would not expect the general advice provided by the advertiser to be covered by the same level of professional indemnity cover expected of IFAs and therefore concluded that the claim "our advice is independent and unbiased" was not misleading.

The ASA considered that consumers would understand "set up by government" to mean that the Money Advice Service was set up with government support and was a national consumer service, which was distinct from commercial businesses and companies who operated in the financial services market and sought to charge for their financial advice services. Because the establishment of the predecessor of the Money Advice Service was a specific requirement under the Financial Services and Markets Act 2000 (as amended by the Financial Services Act 2010), the ASA understood that the service had been developed at the instigation of the UK Government. In light of this, and because the ASA considered that consumers would understand that there was a distinction between the Money Advice Service and those commercial businesses who sold financial advice services, they concluded that the claim "set up by the government" was not misleading.

The ASA interpreted the word "advice" in light of the overall context of the case. In this advert, the lack of claims relating to technical financial advice was enough to evidence that the advice offered in this case was general, and consumers would not be misled by this.

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 27/10/2011.

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