UK: ASA Adjudications Snapshot – January 2012

Last Updated: 7 March 2012
Article by Susan Barty, Alex Bowtell, Stuart Helmer and Lucy Kilshaw

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

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ADJUDICATIONS


COSMETICS

1. Rodial Ltd, 11 January 2012 (The ASA considered that the name of an advertised product can also act as a product claim and can itself be misleading)

2. Optical Express Ltd, 4 January 2012 (Exclusions of certain categories of people from test samples should be justifiable and made clear to consumers)

3. MyCityDeal Ltd, 25 January 2012 (An advert for a product claiming to have "temporary freeze-like effects" was found to be likely to be interpreted by consumers as having a similar effect to injected fillers)

COMPUTERS AND TELECOMS

4. TalkTalk Telecom Ltd, 4 January 2012 (Claims to being the "safest" broadband service were not substantiated)

5. Virgin Media Ltd, 18 January 2012 (Adverts comparing Virgin Media and BSkyB services were considered misleading because they did not contain up to date information)

6. Lions Gate UK Ltd, 18 January 2012 (The ASA considered an advert for an action film posted on YouTube)

ENERGY

7. General Motors UK Ltd t/a Vauxhall, 11 January 2012 (The ASA considered the efficacy of "green" claims in the absence of industry standards)

8. HomeSun Ltd, 4 January 2012 (Complaints about the use of the claim "free" in relation to savings and investments relating to solar panels were not upheld)

9. Quooker UK Ltd, 4 January 2012 (The ASA considered that "eco-friendly" claims should relate to a product's total environmental impact, taking into account its full lifecycle)

FASHION

10. Calvin Klein Inc, 18 January 2012 (The ASA did not uphold complaints against Calvin Klein lingerie adverts featured on the side of buses)

FOOD & DRINK

11. Miller Brands (UK) Ltd, 4 January 2012 (The ASA considered whether alcohol is linked with driving in an advert for Peroni featuring a woman sitting in a car)

MUSIC

12. Universal Music UK Ltd, 25 January 2012 (The ASA considered whether two adverts for music videos are unsuitable for children)

TRAVEL & TOURISM

13. easyJet Airline Co Ltd, 4 January 2012 (Complaints by Thomas Cook concerning comparative adverts were not upheld, complaints made by a member of the public were)

14. MyCityDeal Ltd, 4 January 2012 (Groupon were told to make clear that compulsory charges, as well as taxes, are excluded from quoted flight prices)

OTHER

15. Cocktails Ltd, 4 January 2012 (Roadside posters for SEXy ADULT STORE were not deemed unsuitable)

16. Paddy Power Plc, 4 January 2012 (The ASA upheld a complaint about the use of the image of a sports star under the age of 25 in gambling adverts)

COSMETICS

1. Rodial Ltd, 11 January 2012

This adjudication concerned an advert on Rodial's website and an email advert promoting a product called "body sculpture". The website included the claims "body sculpture is an intensive gel that is formulated to help moisturise skin in problem areas. The fast acting formula of body sculpture is promoted when massaged onto the body". There was also a testimonial that stated "These products really work and if you compare with the price of plastic surgery you'll see that they are not expensive at all". The email stated "Forget the facelift" and "sculpt and firm your jawline without the need for surgery".

Complaint / Decision

One complainant challenged whether the adverts were misleading because they implied that the product was as effective as surgery. The ASA also challenged whether the name of the product implied that it would improve body shape.

Both the complaints were upheld. The ASA considered the claims "Forget the facelift" and "without the need for surgery" combined with the testimonial "....compare with the price of plastic surgery...." were statements that clearly described the product as an alternative to surgery, and implied that it was as effective as surgery. Rodial also argued that the name of the product, "body sculpt", was just being used as a trade mark and, as such, was not being used to provide a description of the product.

Although the ASA considered that the testimonial could be a genuinely held opinion, and did not appear to have any issue with regard to the testimonial, in respect of which the ASA has strict criteria, they noted that no evidence was presented to demonstrate that the product was an effective alternative to plastic surgery, or that the name had been trade marked and so the claims were considered to be misleading.

The fact that Rodial was not able to refer to a registered trade mark for the brand was unhelpful. Nevertheless, even where a product name is also a trade mark, if the ASA considers that the brand name is being used also as a product claim, they are likely to take issue.

2. Optical Express Ltd, 4 January 2012

This adjudication concerned a television advert for laser eye surgery. A voice-over stated "Optical Express have carried out more than one million laser eye surgery procedures worldwide...over 99% of patients achieve 20/20 vision or better". Qualifying on screen text stated "99% of 61,142 treatments". The voice-over added "99% would recommend Optical Express laser eye surgery to their friends and family" and qualifying text read "99% of 35,818 patient responses".

Complaint / Decision

One complainant challenged whether the claim that 99% of patients achieve 20/20 vision or better could be substantiated.

The complaint was upheld. The ASA reviewed data that was being relied upon for the claims. The ASA agreed that it was reasonable to exclude from the study any patients who were not aiming for perfect distance vision. However, the ASA was concerned there was no suitable explanation as to why certain patients had been excluded. The ASA considered that consumers would interpret the claim to mean that 99% of all patients achieved 20/20 vision and that the qualifying text referring to 61,142 treatments would be interpreted as referring to a study of a representative sample of patients. The ASA also considered that the impression would be emphasised by the earlier reference to "more than one million laser eye surgery procedures". Although the ASA considered that the sample size of 61,142 was adequate in the context of an advert that referred to one million procedures, since various patient groups were excluded from the sample, the evidence was not representative of all patients. The claim was therefore found to be unsubstantiated and misleading.

Exclusion of a category of people from a sample should only be considered where there is a justifiable reason. If exclusions are made, this fact should be made clear to consumers. This adjudication demonstrates that, although the qualifying text was generally acceptable in terms of the overall claim, the claim was still misleading in terms of those patients excluded from the study. Had the qualification also referred to the exclusions, there may not have been an issue.

3. MyCityDeal Ltd, 25 January 2012

As reported in last month's ASA Adjudication snapshot, Groupon has been the subject of numerous ASA adjudications and is now being investigated by the OFT. This month sees yet another adjudication against Groupon, this time concerning a promotion for a face serum that was headlined "Wrinkle Killer Snake Serum". Text below included "Temporary freeze-like effects on the face muscles. Helps reduce the appearance of fine lines and wrinkles. Helps tackle the signs of ageing. Leaves the skin looking younger".

Complaint / Decision

One complainant challenged whether the various efficacy claims were misleading and could be substantiated.

All of the complaints were upheld. The ASA considered that the "Temporary freeze-like effects" claim, alongside the headline "Wrinkle Killer", would be interpreted by consumers as suggesting that the product had an effect similar to injected fillers, rather than as relating to a temporary moisturising effect (as was suggested by Groupon).

The evidence provided by Groupon was considered by the ASA as inadequate to back up the claim: one study did not relate to tests on humans, another stated that the effect was dose-dependent and it was unclear from the study what level of active ingredient was used in the product and another study only concerned 15 subjects who used a cream rather than a serum. Therefore the ASA considered that the claim was not substantiated and was misleading.

In relation to the other claims relating to the effects on wrinkles and signs of ageing, the ASA noted that it was generally accepted that anti-aging creams worked by moisturising the skin and that claims that such products could have a temporary effect only on the appearance of wrinkles might be acceptable. However, the ASA considered that in the context of the headline claim, the advert did not make clear that the effects of the product in question could only be temporary. Therefore, the ASA found the advert to be misleading. Although the "freeze like" effect was described as "temporary" the other efficacy claims did not carry this clarification. Advertisers should assess the impression created by an advert as a whole in considering how a claim is likely to be interpreted.

As mentioned in our previous snapshot, the ASA now have a panel of dermatology experts who advise on the adequacy of evidence supporting claims in adverts in relation to this type of complaint. Those intending to make such efficacy claims should also consider the ASA's Guidance on test protocols for certain claims in cosmetics advertising, also referred to in our December snapshot.

COMPUTERS AND TELECOMS

4. TalkTalk Telecom Ltd, 4 January 2012

This adjudication concerned a television advert; poster advert and national press advert for broadband. The television advert featured a toy family in a dolls house, guarded by a row of tiny soldiers. The voice-over said "Talk Talk homes have the UK's safest broadband thanks to HomeSafe, free for all customers. No wonder thousands of homes join Talk Talk every day..." The poster stated "The UK's safest broadband is now £3.25 a month" and "Includes HomeSafe, the UK's first and only network level security". The national press advert stated "The UK's safest broadband £3.25 a month..."

Complaint / Decision

BT plc and two members of the public challenged whether the claim that the broadband was the "UK's safest" was misleading and could be substantiated.

The complaint was upheld in relation to each form of advertisement. The ASA considered that the claim in the advert implied that customers would enjoy the safest online experience when using Talk Talk broadband. TalkTalk argued that the claim was based on them being the only home broadband providers in the UK to apply security features at network level, rather than by making them available for specific devices via a download, which interpretation they claimed was supported by previous ASA decisions. The ASA disagreed, saying that the reference to "network level security" could easily be misinterpreted to refer to other features such as the wireless connection from the router to the computer, since it was not a commonly used term.

Talk Talk also submitted that the claim related to the safety of the broadband connection at the point of entry to the home, they were not claiming to provide the safest online experience. The ASA acknowledged that TalkTalk were the only provider to offer the security features at network level and that HomeSafe offered safety features, also content restriction, virus alerts and parental controls, but thought that "safe" would not cover these. The ASA disagreed with Talk Talk's interpretation of "broadband", instead of focusing on what customers would understand in the context.

The ASA considered that, because Talk Talk had been unable to substantiate that customers would enjoy the safest online experience with them, the claim was misleading.

This adjudication demonstrates the difficulty in relying on a claim which, on the one hand is effectively a "number one" claim (i.e. the "safest"), without there being any clear definition or even indication in the advert, as to the precise meaning behind the claim. Unless the meaning of any particular term is clear, there is a risk that the implied meaning attributed by the ASA is different to that envisaged by the advertiser itself.

5. Virgin Media Ltd, 18 January 2012

This adjudication concerned two adverts comparing Virgin Media and Sky services. Virgin's website featured two comparison tables. The first table stated, "How TiVo's functionality stacks up against Sky+HD with Sky Anytime+" and that a TiVo 1Tb box was £99.95 while a Sky+HD 1Tb box was £149. There was also small print detailing the prices and some terms applicable to both existing and new customers. The second table was titled "Content comparison" and a comparison row titled "Video on Demand" included 4600 hours in the Virgin Media column and 1500 hours in the Sky column.

Complaint / Decision

BSkyB challenged whether the comparison in the first table was misleading because the cost to upgrade to Sky+HD for existing customers was £49 not £149. They also challenged whether the second comparison table was misleading because Sky offered 3,000 hours a month.

Both complaints were upheld. Although the ASA considered that the figures in the first comparison table were accurate, the small print suggested that the price for existing customers was £149 when in fact it was £49, and the table did not include the price for existing customers. The inclusion of the wording "prices are for new customers" in bold font was considered not to be sufficient to prevent the table from being misleading. In fact, the ASA stated that the information should be clear and relevant to both existing and new customers (it should have also included data for the costs to existing customers). The ASA also noted that a report by Sky in January 2011 stated "1,500 hours of content and growing" and so Virgin should have been aware that the hours of content were likely to increase between January 2011 and the date the advert was run (July). Therefore, the ASA considered that it was not reasonable for Virgin to rely on January figures for the comparison. As a result, the ASA considered that the claim had not been substantiated and was misleading.

This case emphasises the importance of sourcing the most up to date information when seeking to make comparisons with competitor products or services. It is also of note that the ASA made clear that comparison tables of this nature should include prices for both new and existing customers.

6. Lions Gate UK Ltd, 18 January 2012

This adjudication concerns an internet video advert for a 12A rated film, Abduction, viewed on YouTube in September 2011. It appeared before an animated clip called "The Duck Song" and included sequences of shooting, vehicle chases, punching, a couple kissing and a man who kicked his way through a window". The voice-over stated "An assassin wants him dead".

Complaint / Decision

The complainant, whose two-year-old saw the advert, challenged whether it was irresponsible because she believed it was inappropriate to be shown during a video addressed to children.

The ASA upheld the complaint. The ASA noted that the advert reflected the content of an action film, however, because of the scenes it included (such as shooting), it was unsuitable for younger children. Although the ASA noted that in order to create a YouTube account, users were required to confirm that they were at least 13 years old, they noted that the material was accessible without needing to log in to an account and therefore it was not possible to prevent under 13s from viewing it. In addition, users accessing in this manner would be unaware of the over 13s policy.

The ASA was presented with data that was provided from YouTube to potential advertisers, that indicated that children were likely to view footage and therefore adverts on YouTube. The ASA also noted that YouTube offered advertisers the option of "age-gating" their marketing material, whereby the advert would be targeted via the date of birth of registered users and would only be available to view by users who were logged in and met the age criteria. Since the advert appeared in the Duck song clip which would likely appeal to children, and since it could be viewed by all YouTube users (without logging in, and with no age-gating in place), the advert was considered to be inappropriately targeted.

Advertisers choosing to advertise on this sort of medium should pay particular attention to the relevant advertising policies, for example, in particular the ability to age-gate adverts, as this may be a practical and effective way of ensuring adverts are not inappropriately targeted at children. It remains to be seen the extent to which this succeeds in protecting advertisers from having complaints upheld by the ASA.

ENERGY

7. General Motors UK Ltd t/a Vauxhall, 11 January 2012

This adjudication concerned an advert for the Vauxhall Ampera. It stated "When the internal combustion engine is used to supply the drive unit with electricity, it runs at a fixed speed, which makes it more efficient than a normal car engine. Under normal driving conditions where 80% of daily journeys are less than 30 miles, the combination of battery power and extended range technology deliver up to 175 miles per gallon of fuel whilst emitting less than 40g/km of CO2 (ECE R101 Test Cycle)".

Complaint / Decision

The ASA received a complaint in relation to this advert from an automotive journalist who challenged whether the claims that "the combination of battery power and extended range technology deliver up to 175 miles per gallon of fuel" and that "the car could emit less than 40g/km of C02" were misleading and could be substantiated.

The complaints were not upheld. The ASA noted that the 175 miles per gallon claim had been calculated in accordance with European regulations, and that the claim made clear what conditions the fuel consumption was calculated under. On this basis, the ASA considered that readers would not be misled. In relation to the second claim, the complainant believed the claim to be misleading because it did not take into account emissions from electricity used in the car. The ASA usually requires green claims to look at issues holistically. However, here, although the ASA acknowledged that there would be emissions from electricity in powering the car, since there was no agreed industry standard by which to measure those emissions, and since the advert stated "under normal driving conditions", the ASA considered that in this context, readers would understand the reference to refer only to C02 emissions claim emitted when the car is actually being driven. Therefore, they considered that the claim was not misleading.

The ASA is always particularly alert to "green" claims. However, this adjudication shows the ASA taking a pragmatic view of what consumers would consider sensible in the absence of industry standards. It is interesting to note that the adjudication does not refer to the ASA having been provided with a study or test results in this case, something which they usually insist on in these circumstances.

8. HomeSun Ltd, 4 January 2012

This adjudication concerns a press advert and website for HomeSun solar panel installation, both of which included text such as "Save on you electricity bills, FREE solar, FREE installation, FREE maintenance". The press advert stated "Happy Birthday Free Solar! And many happy returns to thousands of homeowners – like Mr Arnold who saved £359 on electricity bills in year 1". The terms and conditions stated Mr Arnold's electricity usage and claimed that "Free Solar includes all elements of the solar system, installation and maintenance for 25 years including the cost of replacement parts. SolarShare involves a one-off cost of up to £500". The Website had a section entitled "Grants and FiTS" that included the text "If you don't have the money to invest or you want it for something else...Free Solar or SolarShare may be an option. These are more of a partnership – HomeSun buy and maintains the solar system for you and receives the Feed-in tariff to recoup its investment..." Another section of the website included text "Solar PV using FiTS are projected to give you an annual tax free 5 – 8% return on your money for a 25 year period and a breakeven time of about 10 years".

Complaint / Decision

One complainant challenged whether the savings claim "Save on your electricity bills, FREE solar, FREE installation, FREE maintenance" was misleading and whether the other saving claims referred to in the adverts could be substantiated.

The complaints were not upheld.

HomeSun explained that they had three types of solar power offers (Buy solar, Free solar and Solar Share), each requiring different payments. The "FREE solar, FREE installation..." claim related to the Free Solar service, which made up 80% of HomeSun's business. However, because the main headline stated "Happy Birthday Free Solar!" and the small print (which stated the differing costs for the other services on offer) made clear that different solar services were on offer, the ASA considered that the "FREE" claims related specifically to the Free Solar service, for which there was no installation charge. Therefore the ASA found that the claim was not misleading.

The ASA also considered that the savings claims in the press advert and second section of the website were substantiated. The ASA considered that the advert made clear that the savings claim in relation to Mr Arnold was an example of what could be achieved when using Free Solar in conjunction with other changes to behaviour designed at reducing electricity bills, rather than suggesting that this was saving guaranteed or likely to be made by all Free Solar customers.

The ASA considered that the section of the website under "Grants and FiTS" made no specific claims about returns on investments, but rather provided details of the issues that consumers should take into account when deciding which service was appropriate for them (such as their housing situation now and in the future). As such, the ASA did not consider that the website contained savings claims that actually required substantiation.

Even in relation to the 5-8% return claim, the ASA concluded that it was made clear this was only a projected return and was based on government figures.

This is another example in the growth of adverts relating to savings and investments relating to solar panels. In this case, the advertiser's use of the "Free" claims was permitted since, for that particular service, the advertiser was able to demonstrate that the service was entirely free. Care should always be taken to ensure that a "Free" claim does not suggest that it applies to all products/ services being offered if that is not the case.

9. Quooker UK Ltd, 4 January 2012

This adjudication concerned a magazine advert for an instant boiling water tap and featured a picture of the product dispensing boiling water into a glass jug, next to text stating "100°C on tap". Further text stated "Eco Friendly: delivers exactly the amount of water you need, when you need it; Energy efficient: Energy use only 3p a day, a saving of up to 55% against a kettle".

Complaint / Decision

One complainant challenged whether the "eco friendly" and "energy efficient" claims were misleading and could be substantiated.

The complaints were upheld. The ASA concluded that, even on the basis of the report relied upon by Quooker and even excluding the energy required to boil water in use, over the whole lifecycle of the product the Quooker required more energy than a conventional electric kettle, notwithstanding that it was more efficient than some other alternatives tested. The ASA unsurprisingly considered that the claim to be "energy efficient" in the context of the claim "Energy use only 3p a day, a saving of up to 55% against a kettle", would be understood by consumers to mean that the Quooker was more energy efficient than a kettle. As this was not the case on the basis of the report relied upon, the claim was considered to be misleading.

In comparisons between the Quooker and the kettle, the comparison was not comparing like with like, since the values for the Quooker were based on boiling 200ml of water whereas the values for the kettle were based on boiling one litre. There were also issues as to whether the relevant figures were based on boiling cold water or reheating pre-boiled water. This demonstrates the importance of fully comparable data when making comparative claims.

This adjudication provides interesting guidance on how "eco" (as with other "green" claims) claims will be interpreted. Considering the full life cycle of a product is generally important for these types of claims. Accordingly, it should be noted that in this case the ASA considered that consumers would understand the "eco-friendly" claim to relate to the product's total environmental impact, taking the full life cycle of the product into account, which in this case would include the fact that water filters would need to be replaced approximately every three years.

FASHION

10. Calvin Klein Inc, 18 January 2012

This adjudication concerned a poster advertising Calvin Klein lingerie, shown on buses. The advert stated "Introducing Glamour Calvin Klein Underwear" and featured five images of a model wearing a bra and briefs.

Complaint / Decision

A complainant, who was an Orthodox Jew, objected to the advert because he considered it to be offensive to the large Jewish population based in Stamford Hill, as their religious beliefs required them not to see women wearing only underwear, and that the advert irresponsible because it was displayed in an untargeted medium that could be seen by children.

The ASA did not uphold the complaints. The ASA noted that the adverts were for underwear and that they did not contain images of explicit nudity. Further, the ASA considered that the nature of the product meant that viewers were less likely to regard the advert as offensive. They also noted that the models were in natural poses. Although the ASA considered that some people might view the advert as mildly sexual in nature, because the underwear featured was made from sheer material and the product name, "Naked Glamour" was featured, and that some people with strongly held religious views may find it distasteful, the ASA did not consider that the advert would cause widespread offence. Similarly, although the advert was placed on an untargeted medium which was likely to be seen by children since the images were to advertise underwear, and the images were not overtly sexual, the ASA did not think the advert was irresponsible, and instead considered it acceptable to be shown in an outdoor media likely to be seen by children.

This adjudication is another example of the ASA considering sexual imagery in outdoor advertising, in accordance with its October 2011 statement following the Bailey Report on the sexualisation and commercialisation of children. The ASA's statement provides useful guidance on the sorts of factors the ASA will take into account when considering claims, including: the nature of the product advertised; the context of the advert and its location; the medium in which the advert appears, including the size; the audience and the likely response of that audience. The statement also includes a lot of characteristics that the ASA might consider sexually suggestive or overtly sexual.

This adjudication, where the model poses were not overtly sexual, is consistent with the recent ASA's adjudication concerning Marks & Spencer lingerie adverts, also appearing on buses where a distinction was drawn between images that were considered overtly sexual and those where they were not.

FOOD & DRINK

11. Miller Brands (UK) Ltd, 4 January 2012

This adjudication concerned a poster advert for Peroni beer, featuring the image of a woman, sitting in the passenger seat of a 1960s car (Fiat 500), with snow-covered mountains in the background. No driver was visible. The woman had rolled down the window half-way and in the condensation on the window was written the word "Peroni".

Complaint / Decision

The ASA received one complaint, from a member of the House of Lords, who challenged whether the advert was irresponsible because it linked alcohol with driving.

The complaint was not upheld by the ASA. In this adjudication it was significant that the car was stationary and the model in the advert was in the passenger seat. No alcohol was visible and there was no implication that the model had been drinking, or was about to drink, alcohol, nor that the vehicle had been driven, or was about to be driven, by someone who had been drinking. The ASA also noted that the advert associated the Italian beer with another iconic Italian brand. As such, the ASA considered that the advert did not encourage consumers to drink and drive, or link alcohol with driving.

Alcohol advertisers must be very careful in the images they use in adverts so as not to link alcohol with unsafe activities. The ASA reaches a sensible solution in this case since no alcohol is shown and no one appears to have consumed alcohol.

MUSIC

12. Universal Music UK Ltd, 25 January 2012

The ASA gave two adjudications this month concerning adverts from Universal Music.

The first concerned a poster advert for an album for a rock band, Steel Panther. The advert featured an image of a woman leaning back with her eyes closed. The woman was shown wearing a skimpy outfit that covered her nipples but left her stomach and breasts uncovered, she had her hand by her crotch and she was holding a string with two silver balls attached. The name of the band was placed in the middle of the cover and large text beneath this stated "Balls Out".

Four members of the public and a charity, Imkaan, that raises awareness and offers support to women from ethnic backgrounds who are the victims of abuse, challenged whether the advert was offensive because it was demeaning to woman and overtly sexual. They also challenged whether the advert was unsuitable for public display where it may be seen by children.

The complaints were upheld. Universal argued that the poster was designed in such a way that it was not meant to be taken seriously and it poked fun at the ridiculousness of the attitude to women, outfit and music in the 80s era. However, the ASA considered the image to be overtly sexual, particularly the woman's pose and her facial expression which the ASA considered was suggestive of an orgasm and sexual activity. The ASA also considered the album title to be sexually suggestive, particularly when viewed in the context of the poster with the silver balls dangling between the woman's legs being suggestive of male genitalia. The ASA considered that most people would not view the poster in the humorous way in which it was intended, and even if they did consider it in that way, the advert was still overtly sexual overall. Since the poster was placed in a range of public locations, and in accordance with the ASA's October 2011 statement on sexual imagery in outdoor advertising, the ASA concluded that is was likely to cause serious and widespread offence and was unsuitable to be seen by children and therefore not appropriate for outdoor advertising.

The second relates to a television advert for a Lady Gaga CD. The advert featured clips from various videos including images of Lady Gaga in stockings, suspenders and body harness, crouched on the ground and sensually rubbing her bare stomach with her hands.

One viewer challenged whether the advert was suitable to be broadcast when children might be watching.

In contrast to the above adjudication, this complaint was not upheld by the ASA. They considered that, although the advert featured images of the singer's trade mark outrageous costumes and performance style, the majority of the clips were not overtly sexual. The ASA did comment that some of the clips (for example where Lady Gaga is slowly rubbing her stomach with her hands) were stronger, but that the clips of these were brief.

The ASA did add that a timing restriction would have been appropriate to keep the advert away from programmes directed at children, (although Universal Music noted that the advert was a compilation of clips from Lady Gaga videos which were shown on rotation on various music channels at all times of the day and that these videos went no further than other music videos) however, they noted that the advert had been specifically scheduled in and around programmes that were targeted at 16 – 44 year olds. Because attempts had been made to reduce the likelihood of children seeing the advert, the ASA concluded that the scheduling had not breached the Code.

TRAVEL & TOURISM

13. easyJet Airline Co Ltd, 4 January 2012

A press advert and a website advert for easyJet Holidays compared various package holidays. The press advert stated "Why shell out more? Save up to £436*pp Holiday price check" and "Choice of 100,000 hotels – Holiday is fully protected..." The asterisk indicated terms applicable, "Prices are correct at time of going to press". The advert features a table comparing holidays to various destinations from Thomson, Thomas Cook and easyJet. The advert on the website made similar claims in relation to different holiday destinations.

Complaint / Decision

Thomas Cook challenged whether the comparisons in the adverts were fair for a number of reasons, and a member of the public complained as to whether the claims regarding choice of holiday and full holiday protection could be substantiated.

The complaints from Thomas Cook were not upheld; however the complaints from the member of the public were upheld.

In relation to the comparisons about which Thomas Cook had complained, the ASA considered the small print made sufficiently clear the basis for the comparisons and that the comparisons of rooms were essentially comparing a similar class of accommodation. The in-resort representative relied upon by Thomas Cook as a differentiating factor was not considered by the ASA of sufficient significance to render the comparison unfair. Finally, interestingly, the ASA concluded that the statement "complete holiday flexibility" in the advert would be interpreted by customers as puffery and so did not require objective substantiation, although easyJet had provided support for the claim.

The member of the public had more luck with their complaints, since the claim "Choice of 100,000 hotels" was not substantiated, the true number being less than this when duplication was accounted for. As regards the claim "Fully protected" the ASA considered that this implied a level of protection greater than just against easyJet's insolvency. As a result, the ASA upheld both of these complaints.

Advertisers planning to compare their goods and services with those of their competitors should note that their advertisements not only need to comply with the CAP Codes, but also with the Comparative Advertising Directive, implemented in the UK by the Business Protection from Misleading Marketing Regulations 2008. Under these regulations, comparative advertising is prohibited except where it meets certain conditions, including: it is not misleading; it compares products meeting the same needs or intended for the same purpose; it objectively compares one or more material, relevant, verifiable and representative features of those products; it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, products, activities, or circumstances of a competitor.

The ASA's interpretation of the "fully protected" claim also provides useful guidance. Levels of insurance protection must not be exaggerated.

14. MyCityDeal Ltd, 4 January 2012

Groupon's website offered "Return flights from London to 25 International Cities for £39 Base Fare with AirFastTickets." The text underneath stated that taxes were excluded from the price and rates of such vary depending on the destination/ date of flight.

Complaint / Decision

A complainant challenged whether the claim "All fares exclude all taxes" was misleading because they understood that other compulsory charges were also excluded and had to be paid in addition to the fare.

The complaint was upheld. Groupon argued that the reference to the "base fare" made it clear that the offer was a "towards" deal which meant the voucher contributed a proportion of the total cost. The voucher was not equivalent to the flight ticket and it was clear that supplementary taxes were chargeable. Customers were also informed of the additional payments before completing the purchase on AirFastTickets website. However, the ASA believed that consumers would interpret the offer to mean that the voucher entitled them to purchase flights for £39 to any of the destinations listed and that they would only have to pay taxes in addition. The ASA considered that the fact that the £39 was just a discount off the total flight price was not made clear in the advert and therefore consumers would be confused. Since other charges were also payable, the advert was misleading.

This is yet another adjudication involving Groupon's website. As mentioned in our snapshot last month, Groupon is under investigation by the OFT for unfair trading practices, in particular the numerous breaches of advertising codes over the last year.

OTHER

15. Cocktails Ltd, 4 January 2012

This adjudication concerned three posters for an adult store. One poster, located on the side of a road in Hitchin, Hertfordshire, stated "SEXy ADULT STORE" and had an image of a woman in a bunny outfit posing with her finger pressed to her open lips. A second poster (that replaced the first poster) included the same text and an image of a woman dressed in a French maid's outfit. A third poster on a dual carriageway in Tyne & Wear stated "SEXy SUPERSTORE" and also had an image of a woman dressed in a French maid's outfit.

Complaint / Decision

The ASA received five complaints from members of the public and one from a local councillor. The complainants challenged whether the adverts were unsuitable to be seen by children and whether they were offensive and demeaning to women.

The ASA did not uphold any of the complaints. The ASA considered that the main message of the posters, taking into account the images, the word SEXy and the services advertised, was of a sexual nature and therefore accepted that the images were mildly sexual. However, the ASA did not consider the posters to be overtly sexual and therefore concluded that they were suitable for outdoor advertising. However, the ASA did agree that the adverts were unsuitable to be seen by children, and they considered a placement restriction necessary to ensure they did not appear close to schools. Because this was already in place, the adverts were found not to breach the Code.

This is another decision consistent with the ASA's statement on sexual imagery in outdoor advertising, issued in October 2011.

The ASA's statement notes that what is likely to be acceptable in outdoor advertising, will be informed by the new evidence of the public's view of outdoor images. In light of this, it is likely that the ASA was persuaded in this adjudication by the arguments put forward by Cocktails Ltd that the costumes worn by the women in the adverts had now become so mainstream that they could be seen in the advertising and shop fronts on high street stores.

16. Paddy Power Plc, 4 January 2012

A national press advert for an online gambling website, stated "Money-back if Suarez scores. Liverpool v Man Utd. If Suarez scores we'll refund losing bets". The text was accompanied by a picture of Luiz Suarez in an action style shot.

Complaint / Decision

One complainant objected to the advert because they considered it to be socially irresponsible as it prominently featured Suarez, who was under 25.
The complaint was upheld. The CAP Code states that adverts for gambling services should not include people under 25 years of age gambling, or playing a significant role. At the time of the advert, Suarez was 24 years old. Paddy Power argued that Suarez was not "playing a significant role", he was merely the subject of the bet. The ASA unsurprisingly disagreed because Suarez was pictured individually and therefore was likely to be considered by consumers as the main focus of the advert. Therefore, the CAP Code was breached.

In this decision the ASA has taken a tough stance in the application of this rule. Advertisers should avoid imagery of, or any other association with under 25s in gambling adverts. This is also likely to apply to images of people who are not well known, but look under 25 (even if they are in fact over 25).

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 29/02/2012.

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