UK: ASA Adjudications Snapshot – December 2011

Last Updated: 6 February 2012
Article by Susan Barty, Alex Bowtell, Stuart Helmer and Lucy Kilshaw

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

Also in this month, the ASA, Clearcast and the RACC have appointed a common panel of dermatological experts who will advise on the adequacy of evidence supporting claims in adverts, prior to the adverts appearing and in the event of a challenge.

This initiative is primarily designed to address the issue of disagreements between experts advising clearance bodies and those advising the ASA which has long been the subject of debate within the cosmetics industry, including in those cases where adverts that had been pre-cleared, were subsequently found to be misleading by the ASA. In addition the panel will aim to increase consistency and certainty for advertisers, increase consumer confidence in advertising claims in the beauty sector and provide transparency. Click here  for more details.

In conjunction with the panel appointment, the ASA has also released guidance on test protocols for cosmetic claims:

In addition, PhonepayPlus, the UK's (Premium Rate Services) PRS regulator has issued Wild ACE Marketing Limited with a £9000 fine and prohibited it from involvement in the provision of premium rate services (PRS) for six months for sending unsolicited text messages to mobile phone users. Privacy and electronic communications regulations in the UK generally prohibit organisations from transmitting or instigating the transmission of unsolicited communications for the purposes of direct marketing by means of electronic mail unless the person receiving the mail has notified its prior consent for the messages to be sent. As a result Wild breached the PhonepayPlus Code of Practice provision that PRS providers and their promotional material must comply with the law.

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ADJUDICATIONS

COSMETICS

1. Spire Healthcare Ltd, 7 December 2011 (the ASA finds a poster advert for breast enhancement surgery irresponsible for trivialising cosmetic surgery)

2. L'Oreal (UK) Ltd, 14 December 2011 (a television advert for Youth Code serum is found not to exaggerate the efficacy of the products)

3. Rodial Ltd, 7 December 2011 (Product claims and testimonials about cosmetic products are found not to be substantiated)

COMPUTERS AND TELECOMS

4. Phones 4 U Ltd, 21 December 2011 (adverts featuring a ghost like little girl were found not to be offensive, despite having received over 600 complaints)

5. Virgin Media Ltd, 7 December 2011 (A complaint that the terms and conditions of an offer were not made clear was not upheld on the basis that significant conditions were presented in suitably prominent on-screen text)

6. British Sky Broadcasting Ltd, 14 December 2011 (A complaint from Virgin Media concerning adverts for Sky Anytime+ was upheld)

ENERGY

7. Solar Twin, 14 December 2011 (claims to "Zero carbon" are found likely to be interpreted by consumers to mean emits no carbon)

8. Shell International Ltd, 14 December 2011 (Complaints that claims from Shell that their biofuels are one of the most effective ways of reducing CO2 from cars and trucks were misleading were not upheld)

FASHION

9. Chandler's Hair Ltd, 21 December 2011 (Complaints were made about the images of two models in an advert for a hair salon on the basis that the model looked too thin)

FOOD & DRINK

10. Tesco Stores Ltd, 14 December 2011 (A claim that lettuces went "from farm to store within 24 hours" was found to be unsubstantiated)

HOUSEHOLD

11. Vax Ltd, 21 December 2011 (The ASA considered whether a product could claim to be "designed by an iconic British company" when it was manufactured outside the UK)

12. Everest Ltd, 14 December 201 (The ASA considered whether claims to an offer finishing on a particular date were misleading when a similar offer continued after that date)

13. Argos Ltd, 7 December 2011 (The availability of a product during a promotional period was considered unacceptable)

14. Specsavers Optical Group Ltd, 21 December 2011 (The ASA did not uphold a complaint on the basis that, when dealing with nationwide chain stores, it was not necessary to state exactly which stores had been used for price comparisons)

15.  Homeserve Membership Ltd, 14 December 2011 (The ASA upheld a complaint that a direct mailing offering water supply pipe cover could cause undue distress, especially towards the elderly and vulnerable)

LEISURE

16. Ebuyer (UK) Ltd, 7 December 2011 (When including customer reviews it is important to include a range of reviews, not just positive ones. Star ratings should have an appropriate basis)

17. Warner Bros. Entertainment UK Ltd, 7 December 2011 (A poster showing a skull being shattered by steel rods was considered unsuitable for use in an untargeted medium)

18. MyCityDeal Ltd t/a Groupon UK, 7 December 2011 (Groupon is caught out once again and this time the OFT gets involved)

19. Yoga Alliance UK Ltd, 14 December 2011 (the claim "setting standards for yoga" above a union jack flag was found to misleadingly imply that the advertiser was a standard setting body for yoga in the UK)

20. Merida Bicycles Ltd, 21 December 2011 (Complaints about efficacy claims of a cycle helmet endorsed by James Cracknell were not upheld because the claims were deemed to be substantiated)

TRAVEL & TOURISM

21. Israeli Government Tourist Office, 21 December 2011 (Various claims made about Israel were accepted as not being likely to cause widespread offence)

COSMETICS

1. Spire Healthcare Ltd, 7 December 2011

A poster advert for breast enhancement surgery in the style of a magazine cover featured a woman in a strapless top and text stated "Boob jobs", "more affordable than you may think", "same day surgery" and "get more, pay less".

Complaint/Decision

Ten complainants challenged whether the advert was irresponsible because it trivialised cosmetic surgery; offensive because it was demeaning to women, portrayed women as sex objects and implied large breast were necessary to be attractive; and unsuitable to appear in an untargeted medium such as posters which could be seen by children.

The ASA upheld the first and third complaints, but not the complaint that the advert portrayed women as sex objects. In relation to the first complaint, the ASA found that, although the advert included the phrase, "prior to surgery patients must attend hospital for two separate appointments with a consultant plastic surgeon and a nurse" in small print at the bottom, they considered this text was not prominent enough to significantly modify the overall impression created by the more prominent "Same day surgery" text, which implied that serious surgery was a straightforward financial transaction, and emphasised the speed of treatment.

In relation to the third complaint, the ASA acknowledged that the target demographic for the advert was women aged 18 – 25 and that the adverts were displayed during the Edinburgh Fringe Festival on public transport because the advertiser believed the target group would use public transport then. However, the ASA took the view that the posters were an untargeted and uncontrolled medium and that the image of the large breasts, together with the text "more affordable than you may think", all in the style of a glossy magazine, conveyed the message that breast surgery was a "straightforward and risk-free lifestyle decision". Because the advert was in an untargeted medium, likely to be seen by children, the ASA considered that it was not socially responsible.

This is another example of a situation when the ASA has concluded that the use of a poster advertisement is not the appropriate medium for advertisement of a product unsuitable for children, particularly when the advert is stylised in a way that may attract the attention of children or in this case, may trivialise the cosmetic surgery offered. See in particular the ASA's statement on sexual imagery in outdoor advertising and our comments on this in relation to the ASA's recent adjudication against Unilever UK Limited.

This also takes a similar approach to last month's adjudicaton against Groupon which concerned trivialising the decision to undergo cosmetic surgery and not placing sufficient emphasis on prior consultations with medical practitioners.

2. L'Oreal (UK) Ltd, 14 December 2011

This adjudication concerned a television advert for a facial moisturiser and serum. The advert showed a young woman, who had been digitally altered to appear older, moving through an on-screen graphic effect and becoming young again. The text on-screen stated "Fantasy Scene". The voice-over stated "No moisturiser can make you grow young, but you can reawaken skin's youthfulness day after day. Inspired by gene science, Youth Code Serum and Day Cream from L'Oreal Paris for a super charged boost of hydration....Skin looks smoother, more youthful, more luminous....Skin looks rested..."

Complaint/Decision

Three viewers challenged whether the advert misleadingly exaggerated the efficacy of the products, in particular the transformation of the model from older to younger in the advert.

The complaint was not upheld. L'Oreal explained that the statement "no moisturiser can make you grow young" was a clear statement that no product, including their product, could make you grow young. The imagery was intended to dramatise this statement, not to demonstrate product efficacy. The qualifying text "fantasy scene" emphasised this. The ASA agreed with L'Oreal's assertion that consumers would understand the transformation scene to be fantastical and would not interpret it to literally mean that the products would make them look younger. L'Oreal provided evidence of tests where female participants had rated the creams positively against parameters relating to youthfulness, smoothness and luminosity of skin. This evidence was enough to satisfy the ASA that the claims had been substantiated and the advert was not misleading.

This shows how cosmetic ads can still use stylised images, provided care is taken to avoid the risk of the ad being considered misleading.

3. Rodial Ltd, 7 December 2011

This adjudication concerned claims made on a website for cosmetic products. The website included product information and testimonials. One webpage headed "Glamtox Sticks £48" stated "They are rich in collagen peptides that trigger the synthesis of new collagen fibres...prevents the formation of deep wrinkles....I love them, I used to have a deep set wrinkle on my forhead [sic]... Shana". A second webpage headed "Glamoxy Snake Serum £127" gave product description and a testimonial stated "I love the serum, I noticed that my wrinkles faded within a few weeks of using it. Love it! Jennifer".

Complaint/Decision

One complainant challenged whether these claims could be substantiated.

The ASA upheld the complaint. Rodial had not provided any documentary evidence to support the product claims and testimonials that the products could prevent or remove wrinkles within a few weeks. The claims in the adverts had not been substantiated and the ASA required that they be removed.

Although not a surprising conclusion, particularly in relation to some of the claims made and the apparent lack of substantiation provided by Rodial, this is interesting as it involves a skin care product's claims on its own website, as part of the ASA's extended remit. It is clearly essential to have evidence to substantiate product claims – and the ASA would have required robust evidence to support these claims. Testimonials must also be backed up with evidence of their genuine origin.

COMPUTERS AND TELECOMS

4. Phones 4 U Ltd, 21 December 2011

This adjudication concerned six television adverts and one video-on-demand advert featuring a ghost-like little girl. Five adverts were just two seconds long and appeared sequentially between non-related adverts in the course of a commercial break. Advert (a) showed the girl standing at a distance, advert (b) showed the girl standing closer to the camera, advert (c) showed the girl lifting her hand and mimicking the answering of a telephone. Advert (d) showed the girl holding out her hand with four fingers extended and advert (e) showed the girl with her hand raised and creating a "U" shape with her fingers.

A sixth advert (60 seconds long) showed a woman walking to her car in an underground car park as the little girl appeared and disappeared in the background. The woman ran to her car scared, and then when in the car, the girl appeared at the window holding out a mobile phone to the woman. The child voice-over stated "Hello, the Samsung Tocco Icon is only £59.95 on pay as you go". An adult voice-over whispered "Phones for you. Missing our deals will haunt you". The little girl then made the hand signal for "Phones 4 U".

Complaint/Decision

The ASA received 601 complaints about the adverts. Viewers challenged whether the adverts were offensive, irresponsible, and inappropriately scheduled for a time when children might see them.

Notwithstanding the very high number of complaints, the ASA did not uphold any of the complaints. The ASA noted that the girl's appearance was reminiscent of a character in a horror movie and they noted that the way the adverts (a) to (e) had been broadcast (sequentially between other adverts) would have contributed to the unease felt by some viewers. However, they considered that the adverts were unlikely to cause widespread offence or be unduly distressing for adults, in particular to those who were familiar with the Phones 4 U hand signal. As regards children, the television adverts had been given a timing restriction by Clearcast, and were all broadcast after 9pm so as to reduce the likelihood that children would see them. In addition, they were prevented from being broadcast in or around programmes directed aimed at, or likely to appeal to, children. The on demand advert had been given the same timing restriction and the programme during which the advert was shown had carried a parental guidance flag. As a result, the ASA considered that the adverts were responsibly scheduled and were unlikely to cause serious or widespread offence to children.

In relation to the longer advert, the ASA noted that the advert was intended to parody a horror movie and the ASA agreed that the advert created a sense of tension. However, the content and tone of the message delivered by the girl dispelled that tension and the woman no longer appeared frightened once the little girl had spoken. As a result, the ASA considered that, although some adult viewers had found it distressing, the advert was unlikely to cause serious or widespread offence or to be unduly distressing to most adults and therefore it did not breach the Code. Despite the large number of complaints about these adverts, the ASA considered the Phones 4 U signal to be sufficiently recognisable to dispel any tension created in the adverts by the ghost like imagery and sound effects, and as a result the advert was not considered to be offensive. Appropriate scheduling also clearly had a significant impact on the ASA's decision. Perhaps it was also influential that the advert was shown around Halloween when such imagery is relatively commonplace.

5. Virgin Media Ltd, 7 December 2011

This adjudication concerned a television advert for Virgin media. The advert included a voice-over that stated "We've put together a great deal. Right now, with Virgin Media, you can get TV, broadband and calls for half price for 6 months.......So that's half price TV, broadband and calls for £10 a month for the first 6 months and £20 for a month after that..." On-screen text stated "Cabled areas and new customers only...Virgin phone line required (£13.90) Monthly."

Complaint/Decision

One complainant challenged whether the significant conditions of the offer (included in the on-screen text), in particular the requirement to have a Virgin telephone line at a monthly cost, were made sufficiently clear.

The ASA did not uphold the complaint. Although the on-screen text was white and on a white background, the words were outlined in black and were not particularly small. Therefore the ASA found that the contrast between the on-screen text and its background was sufficient to permit the text to be clearly legible and make it compliant with the BCAP code.

This contrasts with the ASA's previous adjudication against PlusNet plc in which complaints were upheld. The main issue with that advert was that the qualifying wording did not go far enough to explain that there were limitations to the offer and to explain the nature of these limitations.

6. British Sky Broadcasting Ltd, 14 December 2011

The ASA considered a complaint made in relation to a television advert for Sky Anytime+. The advert featured the court of King Arthur with the King stating "Lancelot shall fuse the twin wonders of my Sky Broadband Unlimited and my Sky+HD box to create amazing on-demand entertainment". Lancelot replies "I've actually already done it. It's called Sky Anytime+". Merlin states "Tis true, hundreds of movies, box sets..." and Guinevere adds "T'will not cost us one penny more". The on-screen text stated that "Content depends on Sky TV subscription and Sky Movies 1 and 2 are required for films".

Complaint/Decision

There are regular challenges particularly between Virgin Media and BSkyB with regard to each other's adverts. In this case, Virgin Media challenged whether the claim "hundreds of movies" that "T'will not cost us one penny more" was misleading since customers would need to subscribe to the movie channels at an additional costs to watch movies on Sky Anytime+.

The complaint was upheld. The ASA considered that the on-screen text noting the requirement to have a subscription to Sky and Sky Movies 1 and 2, was not sufficient to remove the overall impression created by the advert that films were included at no extra cost. This was particularly because the claim immediately followed the reference to hundreds of movies and box sets. Because this was not the case, the advert was deemed to be misleading.

This is another example of a situation where, even when the qualification to an offer is included in the advert itself, if this contradicts the main message portrayed by the advert, or the overall impression created by the advert is unclear, the ASA is likely to consider the advert to be misleading.

ENERGY

7. Solar Twin, 14 December 2011

In this adjudication, the ASA considered a complaint made in relation to claims on Solar Twin's website, whereby the solar panel retailer stated "Solartwin.com zero carbon solar power & water heating".

Complaint/Decision

One complainant challenged whether the claim was misleading could be substantiated. The ASA upheld the complaint. Although the ASA noted Solar Twin's comments that carbon produced in the manufacture of their products was offset during their operation, they reviewed the Defra research paper, Consumer Understanding of Green Terms, that stated that under half of respondents were familiar with the term "zero carbon". The paper noted that participants often interpret terms in the most literal sense, for example, zero carbon was often understood to mean "emits no carbon". Therefore, the ASA considered that consumers were likely to interpret the zero carbon claim to mean that no carbon was produced in the full life cycle of the product. Since this was not the case, the advert was misleading.

The ASA is always likely to look carefully at "green" and similar advertising claims, and generally takes a strict approach. This adjudication helpfully indicates that an advertiser should avoid making zero carbon claims, without further explaining the term. The ASA specifically considered the claim in relation to the product being advertised and particularly noted that the claim to "zero carbon" production was likely to be a factor which influenced a consumer's transactional decision in relation to products of this type. It is also interesting to see that the ASA was minded to take into account the findings of a government agency research report in its assessment as to how consumers are likely to interpret particular terminology.

8. Shell International Ltd, 14 December 2011

A national press advert for Shell was headlined "Let's grow our own fuel. Let's go. Helping to create new energy sources such as biofuels is something we're proud of at Shell. This renewable energy is one of the most effective ways of reducing CO2 from cars and trucks today...."

Complaint/Decision

Actionaid UK challenged whether the claim "This renewable energy is one of the most effective ways of reducing CO2 from cars and trucks today" was misleading because they believed that biofuels did not reduce CO2 emissions when the full life-cycle of the fuel was taken into account.

The complaint was not upheld. The ASA reviewed the CO2 emissions data for biofuels provided by Shell which demonstrated that many of the common types of biofuels had the capability of reducing CO2 emissions when compared to petrol. Shell also explained that the biofuels it distributed from those that were available in Europe and the UK, had to be sustainably sourced so as to count towards the EU RED targets.

The ASA considered that the disputed claim would be understood by readers within the context of the text "Helping to create new energy sources..." and "As one of the world' biggest distributors of biofuels..." and would be interpreted as a claim that biofuels distributed by Shell were effective at reducing CO2 in cars and trucks.

The ASA noted that there was no consensus on the impact on the world of growing biofuels. However, they considered that the average consumer would understand a CO2 reduction claim for a biofuel to be based on a full life-cycle calculation, taking into account the CO2 emissions that may have result from the removal of crops that existed on the land prior to growing that biofuel. Significantly, the ASA considered that, in order to make a CO2 savings claim for a biofuel, advertisers should be able to demonstrate that they had taken reasonable steps to demonstrate that the previous land use of the biofuel had been taken into account when presenting CO2 savings data, or that it had shown that the data was taken from biofuels that had been sustainably sourced and that CO2 emissions figures measured appropriately. However, in this case, the ASA understood that Shell had in fact demonstrated this in what appears to have been a very detailed response, and they therefore considered that the advert was not misleading.

FASHION

9. Chandler's Hair Ltd, 21 December 2011

This adjudication concerned an advert in a local magazine, for a hair salon. The advert showed images of two young female models and text stated "In-town standards, Out-of-town prices" and "Revamp your look"

Complaint/Decision

One complainant challenged whether the advert was harmful to teenagers because they believed that the models looked underweight, and that, when combined with the text stating "Revamp your look", these images could be seen as promoting a poor body image.

The complaint was not upheld. The ASA noted the advert was shown on the back of a small community magazine with limited distribution. They observed that the models were thin, and that the lighting and poses emphasised the neck, collarbones, shoulders and arms of the models. However, the ASA did not consider that the models looked unhealthy. It was also considered to be clear that "Revamp your look" was meant to refer to the model's hairstyles, not their physique. As a result, the ASA considered that the advert did not promote an unhealthy body image and was unlikely to cause harm or offence.

This decision is consistent with the ASA's H&M Hennes & Mauritz UK Limited adjudication last month, where the ASA concluded that although the models shown in an advert were thin, they were not unhealthily so, and the advert was likely to be seen as promoting the clothing rather than a desirable body image. As noted in our review of that decision, the use of underweight models in fashion adverts has been an issue for a long time. The ASA will use the whole context of the advert in determining whether or not the images used are irresponsible.

FOOD & DRINK

10. Tesco Stores Ltd, 14 December 2011

This adjudication relates to a national press advert for Tesco. Text in the advert stated "Tesco British Iceberg. Goes from farm to store within 24 hours. So one day it's in the field. The next it's in your salad." The advert also included small print that stated "Timings may on occasion vary due to unforeseen circumstances/events. Subject to availability".

Complaint/Decision

The advert was challenged by Sainsbury's Supermarkets which complained that the advert misleadingly implied that the Iceberg lettuce was generally available within the store within 24 hours of picking.

The ASA upheld the complaint. Tesco acknowledged that due to the time taken to pick an entire field of lettuces, not all lettuces within the batch would be delivered to store within 24 hours of being picked. However, they did not believe that the time at which the lettuces were picked from the field was relevant to the claims in the advert. Tesco believed that "one day it's in the field. The next it's in your salad" was mere puffery that did not require objective substantiation, it was for the consumer to decide when to consume the product. Although the ASA acknowledged these points, they considered that the transportation time was a matter which was under Tesco's control, and therefore consumers were likely to consider that the claim "goes from farm to store in 24 hours" would be capable of objective substantiation. The ASA considered that, in the overall context of the advert, consumers would be likely interpret the advert to mean that the product was available for purchase in store within 24 hours of having been picked from the field. Since this was not the case; the ASA found the advert to be misleading.

Advertisers should avoid using phrases that cannot be substantiated. Although "mere puffery" does not require substantiation, the ASA may consider that a phrase is not "mere puffery" when viewed in the context of the advert as a whole.

HOUSEHOLD

11. Vax Ltd, 21 December 2011

This adjudication concerned a website and television advert for a vacuum cleaner. The website stated "Air...Designed in Britain by an iconic British company, the Vax Air range is the result of over 30 years expertise in designing intelligent floodcare solutions for UK homes..." The television advert included a voice-over that stated that the 'remarkable' Vax Air, was "designed in Britain by an iconic British company.."

Complaint/Decision

One complainant challenged the adverts on the basis of a number of grounds, including that the claim "Designed in Britain by an iconic British company" was misleading because they believed that Vax was owned by TechTonic Industries which was based in Hong Kong.

The complaint was not upheld. Although Vax was owned by a company in Hong Kong, it was founded in Britain and Vax was registered at Companies House in Britain. In addition, the Project had been assigned to a member of the UK design team who was a British national. The ASA acknowledged that although the manufacture took place outside of the UK, all of the design and engineering took place in the UK. Therefore the ASA concluded that Vax had demonstrated that they were a British company and that the product was designed in Britain, so the adverts were not misleading on this ground.

This decision is consistent with the ASA adjudication in MG Motors UK Ltd in August 2011, where the ASA also considered the claim "Designed and engineered in Britain". Although the manufacture was in China, the design was created in Britain, and on that basis the claim was not held to be misleading. These decisions contrast with the adjudication upheld against Heineken UK Ltd in August 2011 in which the ASA held that consumers were likely to understand from the claim "So naturally a beer from Strasbourg, Eastern France is made rather slowly. .....not one part of the brewing process is rushed" that Kronenbourg 1664 was brewed in France. Therefore the ASA found the advert to be misleading because despite its French origins, the lager was brewed in the UK.

Similarly, in an adjudication concerning a sponsored link for DNA paternity testing kits (Genetrack Biolabs Inc, 21 December 2011) which included the claim "Genetrack – UK's trusted DNA lab", the ASA considered whether the advert was misleading because it implied that the company had laboratories in the UK when this was not the case. In contrast to the adjudication above, the complaint was upheld. In this case Genetrack did not have a physical presence in the UK and all testing was undertaken in Canada. The ASA agreed with the complainant that the claim would be interpreted to mean that testing was carried out in a UK lab. As a result the claim was found to be misleading.

12. Everest Ltd, 14 December 201

This adjudication relates to a television advert and a website promoting a window company's June sale. The television advert included text that stated "Lifetime guarantee applies to uPVC windows and doors only. Terms and conditions apply" and "Sale ends 4.7.2011" and "Just for June sale with lifetime guarantee". The website advert stated "Transform your home into something wonderful this summer with the Everest just for June sale. We are offering up to 35% off* with a lifetime guarantee, but hurry the offer ends on 4 July!" and "Just for June sale ends in" and featured a countdown clock.

Complaint/Decision

Two complaints were made about these adverts on the basis that they were misleading on the basis that they implied that the offer was time limited, yet the viewers believed that the "up to 35%" offer was not limited only to purchases made in June, but that it was also available in July, albeit with different extras.

The complaints were not upheld. The ASA understood that the complainants felt that, having subsequently discovered that the 35% off offer was available in July, they had been rushed to make their purchase before 4 July when they believed the 35% offer was ending. However, the ASA considered that, although both the June and July promotions both offered 35% off, the offers were not limited to that offer and both included other different promotional features. The June offer included a lifetime guarantee on uPVC windows, whereas the July offer covered all Everest ranges and additional fixed sums off the windows purchased. The ASA considered that these additional features were sufficiently clear to consumers and sufficiently different to differentiate between the different offers and concluded that the June Sale was in fact time limited and so was not misleading.

Although the ASA did not uphold the complaints against Everest on this occasion because it considered the two offers to be distinct, it is important for advertisers to remember that falsely stating that a product will only be available on particular terms for a limited period of time in order to elicit an immediate decision constitutes a breach of the Consumer Protection from Unfair Trading Regulations.

13. Argos Ltd, 7 December 2011

This adjudication concerned the Argos website which included a promotion for a children's toy that stated "Nerf N-Strike Tech Target, £14.99. Was £29.99. Half price". Text at the bottom of the page stated "Current selling price valid until 21/9/2011" A catalogue viewed at the same time, advertised the same product stating "Half price £14.99".

Complaint/Decision

One complainant challenged the availability of the item in the promotional period, since he had been unable to purchase the item online or in store.

The ASA upheld the complaint. Argos informed the ASA that demand had exceeded their estimate, which was based on a similar product from a similar range at a similar price. However, the ASA concluded that, by not basing the estimate on a response rate to a product, they had failed to make a reasonable estimate. Further, Argos had not indicated that stocks were limited and they continued to advertise the promotion when stocks had run out. As such, the ASA concluded that Argos had failed to conduct the promotion fairly.

Advertisers must ensure that they take care with any estimates of demands for promotions and base estimates of demand on sensible grounds, and also ensure that once stocks run out, advertising of the promotion ceases. It is also essential to indicate that stocks may be limited.

14. Specsavers Optical Group Ltd, 21 December 2011

Specsavers ran two national press adverts for contact lenses. The first advert was headlined "Save up to £193 on Boots contact lenses switch to Specsavers" A table compared the prices of various lenses. Monthly, annual and percentage savings were stated for each type of lens. Text below the table stated "If you come to Specsavers for contact lenses you can save up to £193 a year on Boots prices. It's easy to switch – just bring the lenses you usually wear and a copy of your current contact lens specification to you nearest Specsavers store to start saving".

The second advert was headlined "How can Boots customers save up to £122 a year on Acuvue contact lenses? Switch to Specsavers" and this advert also included a comparison table.

Complaint/Decision

Boots Opticians Ltd challenged the advert on a few grounds, including that the first advert was misleading because it did not state where the comparison was conducted. The ASA did not uphold the complaint on this point. Since both Specsavers and Boots are national chains, the ASA considered that consumers would understand the comparisons to be based on prices available nationwide. The ASA did not think it necessary for the exact stores involved in the comparison to be mentioned.

Specific details of store locations for comparison of products or services offered is not required if the stores in question are both nationwide chains, operating a nationwide pricing scheme.

15. Homeserve Membership Ltd, 14 December 2011

This adjudication concerned a direct mailing for water supply maintenance cover. The mailing was headed "Information about your water supply pipe responsibilities at [address]". The text of the mailing said that "If you are the homeowner you are generally responsible for the cost of repairs to the water supply pipe from the street boundary all the way into [address] as the diagram above shows. 138,825 homeowners in the Southern Water area already trust HomeServe to solve water supply pipe emergencies....that may be complicated and expensive to fix."

Complaint/Decision

Age concern objected to the advert because it used scare tactics to encourage people to take out the cover, and this could cause elderly recipients distress by implying that it was their responsibility to take action when it was not.

The complaint was upheld.

Homeserve argued in response that they had used the word "generally" intentionally to acknowledge that circumstances exist where the homeowner is not responsible and nor did they say that the homeowner "is" responsible. They also pointed out the optional nature of the cover and that the section on "Who is eligible to apply?" demonstrated a sense of responsibility to consumers and society. However, the ASA noted that the mailing was directly addressed to the recipient and was used throughout the mailing. The ASA believed that the incorporation of personal details in the mailing mirrored the style of a letter that required action and the heading contained a "strong message that the recipient had an individual responsibility to act". The overall impression from the mailing was that the letter applied to the recipient personally and that action was required. The section that detailed the scenarios in which pipe may have to be excavated to undertake repairs could entail significant costs, could cause undue distress amongst vulnerable recipients.

LEISURE

16. Ebuyer (UK) Ltd, 7 December 2011

This adjudication concerned a website for an online retailer that stated, "Foehn & Hirsch Portable Wifi Internet Radio" and showed a picture of four and a half stars. Further text stated "17 reviews".

Complaint/Decision

One complainant challenged whether the 17 reviews claim alongside the stars was misleading because they believed that Ebuyer had selected only reviews that created a favourable impression.

Ebuyer stated that the reviews used were submitted by customers and that they used filters pre-set to show the ratings that were most useful to consumers.

The ASA upheld the complaint on the basis that they considered that negative reviews were also likely to be useful to consumers. Further, the majority of consumers would interpret that the "17 reviews" claim alongside the stars to mean that the reviews displayed were representative of the subjective opinion of customers. By omitting the negative reviews, Ebuyer created a favourable impression that was likely to mislead the public. The ASA also noted that there was no information provided as to how the stars score was calculated. The ASA therefore considered that the claim was materially misleading.

A selective approach to reviews used in marketing is misleading and should be avoided. Further, the use of graphical representation of reviews (such as a star scoring system) needs to be substantiated. Usually this should only be used where reviewers have star-rated the product and the overall star rating should represent the mean average of all of the star ratings given. This is consistent with the adjudication upheld against Merlin Entertainments Group Ltd last month [link to ASA Snapshot November 2011] where the ASA considered that it was misleading for the advertiser to use a star rating in circumstances where visitors had been asked to give the experience a mark out of ten, rather than rate it according to a star rating system.

17. Warner Bros. Entertainment UK Ltd, 7 December 2011

Two poster adverts for the cinema film release of Final Destination 5 showed images of a skull being shattered by steel rods being driven through its mouth and eye sockets. Accompanying text stated "It's not if, it's when final destination 5".

Complaint/Decision

Thirteen complainants objected to the depiction of violence in the advert, because they considered that the adverts were unsuitable to be seen by and likely to be distressing to children.

The ASA upheld the complaint. They noted that the poster reflected the content of the film and was intended to give the public an idea of what to expect from the movie. Warner Bros argued that the image was a surreal one and, not featuring people or blood, would be recognised as such. However, the ASA took the view that the image of the skull being shattered was likely to catch the attention of children especially as it was shown on a poster on the underground, an untargeted medium. The ASA therefore concluded that the adverts were likely to cause fear and undue distress to children.

The ASA also considered the depiction of violence in adverts in their adjudication concerning Sparring Partners Ltd t/a Gymbox (21 December 2011). This advert concerned a circular for a combat classes in a gym that included text "Whether you want to kick box for your country or dropkick chavs from your estate, we've got the perfect class for you....More punch, kick and elbow strike than slap, bite and hair pull". One complainant objected to the advert because they considered it to be offensive and socially irresponsible because it encouraged violence. The ASA did not uphold the complaint in this adjudication. They took the view that the use of light-hearted language and the image of a skinny man in a boxing pose gave the advert an overall humorous tone. The ASA considered that consumers would understand that the advert was for combat classes and so would not be likely to encourage violence out of that context.

Although both of these adverts were contained in relatively untargeted mediums, the decisions show that the ASA is more likely to consider the use of graphic violent imagery (even when included in a fantasy scenario) to be likely to cause fear to children. The ASA has taken a sensible approach to the text in the Gymbox adjudication, by considering it in the context of the services promoted (i.e. combat classes) and the overall light hearted tone of the advert.

18. MyCityDeal Ltd t/a Groupon UK, 7 December 2011

This adjudication concerned an advert on Groupon's discount website entitled "Six sessions of IBE Breast Enhancement surgery for £99 at Beautopia Spa (£1200 value). Text headed "Fine Print" included "Typical growth between ¼ and 2 cup sizes within 5 – 8 weeks..."

Complaint/Decision

One complainant challenged whether the growth claim could be substantiated as she had been told when she attended the spa that it would take a greater number of treatments to achieve the same increase.

ASA upheld the complaint. They considered that the use of the word "typical" would mean that the majority of women could achieve the result specified. They also believed that customers would expect the typical growth claim to be backed up by robust scientific evidence. Although there was a disclaimer that "individual results may vary", the patient data for 6 patients provided by the spa was not considered sufficient to substantiate the claim made and, as a result, the ASA found the advert to be misleading.

A second adjudication published against Groupon on the same day concerned an email and website promotion for "One year midweek delivery pass plus £40 worth of groceries for £39 from Ocado (£110 Value)". Further text stated "Those in need of Groupon grocery guardian can receive assistance with £40 worth of groceries as well as a one year midweek delivery pass, usually priced £69.99..."

Four complainants challenged whether the value of the midweek pass was in fact £69.99 since the Ocado website stated that a 6 month pass cost £14.99 and therefore an annual pass would cost £29.98.

Although they acknowledged that Ocado had sold delivery passes at £69.99, the ASA noted that these were for deliveries on any day of the week, not just mid week. In addition, although Ocado submitted screen shots to show that mid week passes on the same terms as the promotional passes had been sold at £69.99, this information had not been available to readers on the date on which the Groupon promotion was released. As a result, the ASA upheld the complaint on the basis that most readers would understand the claim "A one year midweek delivery pass, usually priced at £69.99" to mean that £69.99 was comparable to the price at which an identical or similar pre-existing product offered by Ocado was generally sold. Because there was no evidence that compared the value of the promoted pass with an equivalent product, the ASA considered that the "value" of the promotional item had not been substantiated and concluded that the advert was therefore misleading. Statements of value should an accurate representation of the price at which the product is normally offered. The manner in which price statements are calculated should also be made clear.

These are just two of a long line of adjudications made by the ASA about complaints brought against Groupon. On 2 December 2011 the OFT announced that it had opened an investigation into the trading practices of MyCityDeal Limited. The OFT had in fact commenced the investigation in July, but following the referral from the ASA the OFT has made this investigation public knowledge. The ASA referred the matter to the OFT because of doubts as to whether MyCityDeal limited is "complying with consumer protection legislation, including in relation to certain of its advertising practices". MyCityDeal has now been found to be in breach of the CAP Code rules 48 times in the last 11 months.

19. Yoga Alliance UK Ltd, 14 December 2011

This adjudication concerned claims made on the website for Yoga Alliance UK ("YAUK"). Text stated "Setting standards for Yoga" alongside a union jack. The FAQs page also included text "Setting standards for yoga in the UK". The FAQs page stated "Are you claiming to be a governing body for yoga? No! There is no governing body for yoga in the UK. YAUK has been established to promote and encourage high standards of teaching.....I've read that the BWY is the governing body for yoga in the UK. Does this mean I have to train with them to get a recognised qualification? No, the BWY are NOT the governing body and you do not require to do their course to teach yoga. There is no official governing body for yoga in the UK."

Complaint/Decision

The British Wheel of Yoga ("BWY") complained that:

(a) "Setting standards for yoga" (and the Union Jack) and "Setting standards for yoga in the UK" misleadingly implied that YAUK were a standard setting body for yoga in the UK;

(b) "There is no governing body for yoga in the UK" and "No, the BWY are NOT the governing body", were misleading because the BWY was recognised as the national governing body for yoga by Sport English; and

(c) "No, the BWY are NOT the governing body" was misleading and denigatory because it implied the BWY falsely claimed there was a requirement to do their course in order to teach.

All three challenges were upheld. YAUK explained that the claim "Setting standards for yoga in the UK" was only available on the internet as the result of an error. The ASA was concerned that this claim was still available on the internet despite having had an earlier adjudication against it. Although the "in the UK" part of the claim, had been dropped, the ASA considered that the claim used in conjunction with the union jack was likely to be interpreted as suggesting that YAUK were a recognised standard setting body for yoga in the UK. As this was not the case the ASA considered the claim to be misleading.

The ASA noted that Sports Councils have a recognition process with the aim of creating a single lead national governing body structure that governs a sport in the UK and that BWY had been recognised in this respect by Sport England and that Sport Scotland recognised Yoga Scotland in the same way. Therefore, the ASA concluded that the claims that there was no governing body for yoga in the UK were misleading. The ASA also considered that the claim in (c) was denigatory as it falsely implied that there was a requirement to complete one of the YAUK courses in order to teach yoga.

Even though the claim in had been amended to remove the "UK" element, the continued use of a union jack created an overall misleading impression that the body was an official governing body. Claims to be a governing body, or be associated or recommended by one must be substantiated.

20. Merida Bicycles Ltd, 21 December 2011

An advert on the Merida Cycle website for the Alpina Pheos helmet, stated the following about James Cracknell (a well-known athlete who had used the helmet), "James' most recent challenge saw him undertake to ride, swim, row and run the width of the US...Cruelly this challenge was interrupted midway when a truck wing mirror hit James on the back of his helmet... Thankfully James...is now home recovering and this swift rehabilitation is both a tribute to James' fortitude and to the superior quality of his Alpina Helmet....James' neuro/ trauma surgeons attributed his Pheos Helmet as having undoubtedly saved his life where other helmets might have failed.."

Complaint/Decision

One complainant challenged whether the claims about James' recovery being a tribute to the "superior quality" of the Alpina helmet and whether it "undoubtedly saved his life where other helmets might have failed..." could be substantiated.

The complaint was not upheld. The ASA noted that Alpina helmets are made of expensive raw materials, are of good quality, and that Merida had provided European Standard Test Certificates and an independent test video to support this. James Cracknell had also provided a testimonial statement on the issue. The ASA considered that, good quality helmets were important in road cycle safety and that, had he not been wearing a good quality helmet, James Cracknell's injuries might have been worse. As a result, the ASA considered that the general claim about the effect of wearing a helmet on his injuries was not misleading. Similarly, the ASA acknowledged a statement from James Cracknell's surgeons that the helmet had saved his life where other helmets were likely to have failed and, combined with evidence that the helmet had been independently tested as higher performance than some other helmets, this satisfied the ASA that there was sufficient evidence to support the claims. The ASA also considered it important that readers would understand that the claims related to the effects of this helmet in James Cracknell's particular circumstances.

TRAVEL & TOURISM

21. Israeli Government Tourist Office, 21 December 2011

This adjudication related to a magazine advert for the Israeli Government Tourist Office that stated "The story of the loaves and fishes. The masses have always been well fed in Israel. It's a melting pot of races and creeds, whose culinary traditions have turned simple home cooking into world class dishes. Tel Aviv has the highest number of sushi restaurants outside of Tokyo..."

Complaint/Decision

Three readers challenged whether the claim "The masses have always been well fed in Israel" was likely to cause offence because some areas of Israel were subject to food shortages. Similarly, three readers challenged whether the claim "It's a melting pot of races and creeds" was likely to cause offence because they understood that Palestinians in Israel were restricted in movement and excluded from some areas of daily life.

The ASA did not uphold either of the complaints. They considered that the advert was designed to attract visitors to Israel and focused on promoting the food available to tourists. The ASA thought it likely that consumers would understand that in any country some inhabitants were less well provided for. They considered that consumers would understand the play on words based on the Gospel of "feeding the 5.000", particularly by reference to the title of the advert. As a result, the ASA considered that consumers would take the claim to mean that the majority (as opposed to every person) was well-fed.

The claim relating to a "melting pot of races" would be understood to be a reference to the population mix of the country, not a claim that the population necessarily lived in harmony and equality. As a result, the ASA concluded that neither claim was misleading.

This again shows the ASA's willingness to assess the likelihood of offence being caused to the majority of people in the overall context of an advert, and not being overly influenced by a small number of individuals who may find specific claims offensive.

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 30/01/2012.

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