UK: ASA Adjudications Snapshot - March 2012

This article provides a selection of the most interesting ASA adjudications from March and a summary of the key issues considered in those adjudications. These include several adjudications on the use of internet-based promotions, and in particular the first ASA adjudication concerning celebrity endorsements on Twitter. 

In addition, BCAP is currently consulting on proposed amendments BCAP Code rules on comparative advertising and pricing. BCAP is proposing the removal of rule 3.39, which would mean that there would no longer be a requirement for comparative price claims to be based on identical or substantially equivalent products. This amendment would potentially widen the scope of comparative price claims that advertisers can make to include those between products which meet the same need or purpose, but which are not identical. The changes would bring the Code in line with the requirements of the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008. 

BCAP is also proposing to amend rule 3.19 to allow VAT-exclusive prices to be included in advertising which is clearly targeted at business customers (who generally either do not pay VAT, or can recover it). The consultation ends on 4 May 2012. 

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ADJUDICATIONS

COSMETICS

1. Hubert Burda Media UK t/a Love It!, 7 March 2012 (The ASA considered a magazine competition with a cosmetic surgery prize)

COMPUTERS AND TELECOMS

2. Strictly Electronics Ltd t/a ComEuro.net, 28 March 2012 (The ASA concluded that the use of a logo comprising the initials 'CE' inside a circle of 12 yellow stars misleadingly implied that the company fell under the jurisdiction of the EU)

FASHION

3. Harvey Nichols & Company Ltd, 21 March 2012 (The ASA investigated whether a Christmas advert referring to 'the walk of shame' demeaned women and made class distinctions)

4. Stylefantasia Ltd t/a Stylist Pick, 14 March 2012 (an online shoe retailer's advert failed to clarify that it was a subscription service)

5. sit-up Ltd t/a Bid TV, 21 March 2012 (The ASA concluded that the claims "Swiss precision mechanism" and "Swiss making heritage" implied that a watch was made in Switzerland)

FOOD & DRINK

6. Mars Chocolate UK Ltd, 7 March 2012 (The first ASA adjudication on the use of Twitter for celebrity endorsement advertising)

7. Kellogg Marketing and Sales Company (UK) Ltd, 7 March 2012 (Claims relating to sugar and health on a website for children's cereal were found to be misleading)

8. Co-operative Group Ltd, 7 March 2012 (The ASA considered whether the advertisers had taken sufficient precautions to ensure that an online competition was fairly administered)

9. ASDA Stores Ltd, 7 March 2012 (Tesco challenged a comparative pricing claim in an ASDA national press advert)

10. LivingSocial Ltd, 7 March 2012 (The ASA considered whether an alcohol sales promotion was socially irresponsible)

11. Marlow Foods Ltd t/a Quorn Foods, 21 March 2012 (The ASA considered claims made in relation to a new fish-substitute food range by Quorn)

TRAVEL & TOURISM

12. Ryanair Ltd, 7 March 2012 (Press adverts by Ryanair which heavily referenced that fact that Thomas Cook was in financial difficulty were considered)

HOUSEHOLD

13. Vax Ltd, 28 March 2012 (the ASA considers claims to 'outstanding' product performance)

14. Ergoflex Ltd, 21 March 2012 (website adverts claiming that products had featured in various media editorials or product reviews were found to be misleading)

15. DFS Trading Ltd, 28 March 2012 (the ASA considered that there was no requirement for credit advertising to include the statement 'subject to status')

OTHER

16. Paramount Pictures UK, 14 March 2012 (Viewers challenged whether TV adverts for a horror films were likely to cause distress)

COSMETICS

1. Hubert Burda Media UK t/a Love It!, 7 March 2012

A competition in Love It! magazine was titled "Free tummy tuck for one of our lucky readers!". Below this, text stated "It's week two of our month-long plastic surgery giveaway * say goodbye to your saggy stomach with a tummy tuck". Smaller text below then stated "We know you have body issues. Bits you'd like to nip, tuck, increase, reduce....Well this is your chance... Perhaps you've managed to lose an amazing amount of weight, but it's left you with saggy skin that no amount of exercise can tighten up. Or maybe having kids has given you a bulging belly that dieting just won't budge. Whatever your reasons, we can help you get a flatter, tighter tummy". Further text explained that readers who texted with the correct answer to a question would then be asked a range of questions to assess their suitability for surgery and to explain why they wanted to have the surgery. A shortlist of entrants would then be chosen by 'top medical professionals' and Love It! readers would be given the opportunity to vote for the entrant they felt most deserved the surgery.

Full terms and conditions detailed the requirement for a small administration fee to be paid prior to entry and elaborated on the selection process which included passing various general health questions, a medical and psychological assessment for the finalists and a consultation with the surgeon to determine if the treatment was suitable for the individual. The competition also explained that the first 200 entrants who correctly answered the question also secured a 20% discount on standard package prices for future surgery at the McIndoe Centre during the next three months

Complaint/Decision

A complainant challenged whether the competition was irresponsible because it promoted an irresponsible attitude to cosmetic surgery. The complaint was not upheld.

Hubert Media argued that they did not consider this a 'competition' but a 'selection process and give-away', but the ASA disagreed and said that, because entrants had to text a number and answer a qualifying question which relied upon a degree of knowledge before they could take part, it was a competition.

While the ASA understood that some readers might find the competition distasteful, they considered that (i) the strict enforcement of the selection process, (ii) the time period in which readers could consider whether to apply (almost 2 weeks), and (iii) the fact that any selected entrants then had to fill out a suitability questionnaire and be assessed by medical professionals were all factors which indicated that the selection process had been conducted responsibly.

The ASA also noted that the advert provided additional information on the reasons why people might consider undergoing such a procedure, which allowed entrants a further opportunity to evaluate whether they wished to enter. The ASA also considered that the terms and conditions were displayed clearly and highlighted to readers that they would only be able to win the procedure if they were deemed suitable for it.

In addition, the ASA considered that, although parts of the text were targeted at body insecurities, this was not irresponsible.

In respect of the discount off future surgery offered to the first 200 successful entrants, the time period of 3 months in which to use the discount was considered to be sufficient for recipients to consider if they wished to undergo a surgical procedure.

Overall the ASA considered that the competition was not irresponsible and did not promote an irresponsible attitude to plastic surgery.

This adjudication is consistent with another adjudication this month involving a time limited Groupon offer for facial injections, a medical procedure. In that adjudication, although it considered that it was important that consumers were not pressured into a decision to purchase cosmetic procedures, that would have long lasting physical effects, the ASA considered that 72 hours was a sufficient time period for consumers to decide whether or not to purchase a cosmetic procedure. It was noted that a refund was available at any point prior to redemption of the voucher. As a result, the advert was not held to place undue pressure on consumers and was therefore not irresponsible.

However, in another adjudication this month involving Groupon and a promotion for "Choice of Facial Injection Treatments On One (£49) or Two (£89) Areas at Bath Facial Aesthetics (Up to 77% Off). Two complainants challenged whether the sales promotion advertised a prescription-only medicine to the public. Despite Groupon's argument that the promotion related to dermal filler treatments, the ASA noted that the promotion did not specifically refer to Restylane or Juvaderm, or dermal filler treatments and although the promotion did not use the term Botox, the ASA nevertheless, and for a number of reasons, considered that the reference to "Facial Injection Treatments" in the promotion referred to Botox, a prescription only medicine. As such, the advert was found to breach CAP Code rule 12.12 (Medicines).

COMPUTERS AND TELECOMS

2. Strictly Electronics Ltd t/a ComEuro.net, 28 March 2012

A logo on ComEuro.net consisted of the initials "CE" inside a circle of 12 yellow stars next to the company name, which was overlaid over a map of Europe.

Complaint/Decision

The complainant challenged whether the logo was misleading on the basis that it implied the company fell under the jurisdiction of the EU because the "CE" initials resembled the CE mark, which appears on products marketed in the European Economic Area to confirm that the product conforms with the requirements of EC directives, and the circle of twelve yellow stars was the emblem of the EU.

The complaint was upheld. The ASA acknowledged that the letters 'CE' were the initials of ComEuro.net, that the font used in the logo differed from the font used for the well-known CE mark for products marketed in the EEA, and that the advertiser supplied consumers throughout the EU. However, it considered that the strong resemblances between the stars in the logo and the EU emblem and the use of the initials 'CE' were likely to mislead consumers, who would interpret the advert as ComEuro.net falling under EU jurisdiction and being subject to EU consumer laws. Because the company was registered in Guernsey (not a member of the EU) and this was therefore not the case, the logo was held to be misleading.

Care must be taken not to use logos or wording which suggest an association, or conformity with the requirements of an entity or group, where this is not the case.

FASHION

3. Harvey Nichols & Company Ltd (HNC), 21 March 2012

This adjudication concerned a YouTube advert for Harvey Nichols. It showed several women in eveningwear travelling home in the early morning, apparently after a night out. The women generally appeared uncomfortable and dishevelled. Onscreen text stating "Avoid the Walk of Shame this Season" appeared, followed by imagery of a smartly-dressed woman approaching a flat entrance and confidently acknowledging a postman.

Complaint/Decision

Four complainants challenged whether the advert was offensive on the following grounds: that it was demeaning to women; that it reinforced negative stereotypes of women, particularly those who chose to have casual sex; that it implied sexual violence (one of the women was wearing ripped tights); that it suggested that lower class women who had one-night stands should feel shame, whilst more wealthy women who behaved in the same way should feel proud; and that it mocked women who did not have 'model' figures.

None of the complaints were upheld. The ASA considered that, although the implication of the phrase "walk of shame" was that the women had had casual sex the previous night and the advert mainly depicted women who looked dishevelled and uncomfortable, the advert did not reinforce negative stereotypes of women and was not sexist or demeaning, because the final imagery showed a woman who appeared neat and confident.

The ASA agreed with Harvey Nichols that ripped tights was a common everyday occurrence and concluded the majority of viewers would not interpret this as implying sexual violence.

In relation to the suggested class differences, the ASA considered that the images did not necessarily imply that the women belonged to a specific social class or had a certain level of wealth, or that it mocked less wealthy women.

Overall the ASA considered that, while some people might find the advert theme distasteful, it was unlikely to cause serious or widespread offence.

Three similar adjudications this month involved women featured in adverts in ways that complainants considered offensive. The ASA did not uphold any of the complaints. In Agent Provocateur Ltd, 7 March 2012, the ASA considered an online advert on the luxury lingerie retailer's website showing a woman in a nightgown in her home answering the telephone, then several women, who were wearing revealing lingerie, appeared to attack the woman's body before she re-appeared wearing similar revealing lingerie to the group. The advert was considered by the ASA to be highly stylised and clearly fictional, and thereby unlikely to be interpreted as disturbing or offensive.

In Puig (UK) Ltd, 14 March 2012, the ASA considered a TV advert for fragrances which featured a line of people waiting outside a nightclub and a doorman pointing towards a sign which stated "THIS IS A PRIVATE PARTY". A woman was seen surreptitiously crawling through the crowd and a man was prevented from trying to enter via a back door. Various people were seen socialising inside the party. A woman was shown from behind, apparently topless, facing a large stuffed polar bear. Another woman was shown, again from behind, throwing open her coat causing a shocked reaction from another woman standing in front of her. The ASA concluded that the advert constituted a stylised image of a modern fantastical party scene, and therefore the fleeting partial nudity and associated innuendo was not excessively sexual or provocative and did not merit a timing restriction to prevent broadcast at times when children were likely to be watching.

In an adjudication involving Figleaves, 14 March 2012, a poster advert of a woman wearing lingerie and stilettos was held to be relevant in the context, and not overtly sexual. However, in this case a placement restriction to prevent children viewing the advert was warranted because the woman's facial expression and body language were sexually suggestive. As this restriction had already been applied, the advert was not considered socially irresponsible. In this adjudication, the ASA adopted the approach set out in their statement on sexual imagery in outdoor advertising, and applied on a number of occasions subsequently.

4. Stylefantasia Ltd t/a Stylist Pick, 14 March 2012

A TV advert featured numerous different shoes alongside on-screen text that stated "All £39.95", while a voice-over stated "A message for heelaholics everywhere from your soul mates at stylistpick.com. Because we like shoes like you like shoes, every day this month we're giving away 12 must-have pairs to one of our members. Sign up for free, find your style and you could win free heels every month for a whole year. Wow!". Additional on-screen text at the bottom of the advert stated "All shoes £39.95. Monthly subscription occurs upon first purchase. 18+. T's and C's apply".

Complaint/Decision

One complainant challenged whether the advert was misleading because after making a purchase, she discovered she was required to pay a £39.95 monthly membership fee regardless of whether or not a purchase was made.

Although the complainant had misunderstood the mechanics of the subscription, in that she was not required to pay £39.95 per month regardless of whether or not a purchase had been made, the ASA noted that once the first purchase was made, customers were subscribed to the service and were charged £39.95 per month in exchange for store credit, unless they actively selected a purchase or clicked to skip the month by the fifth day of the month, each month.

The ASA considered that, despite the references to Sign-up for free" and "Monthly subscription occurs upon first purchase", the advert generally looked like a typical shoe retailer TV advert with a range of shoes and accompanying prices being shown in succession rather than a subscription service. The voice-over focused on the competition aspect and did not refer to the commitment a customer would make by purchasing the shoes advertised. The ASA considered that the onscreen text was the only indication given that this was a subscription service, and because this was likely to be a significant factor in the consumers decision whether to make a purchase, the advert should have made this aspect clearer. The ASA therefore considered the advert to be misleading.

This adjudication shows that clear qualifications are required where images or voiceover in an advert may otherwise give a misleading impression.

5. sit-up Ltd t/a Bid TV, 21 March 2012

This adjudication concerned a complaint against a teleshopping broadcast on Bid TV for an Ingersoll watch, in which the presenter stated that features of the watch included "a Swiss precision mechanism" and that the Ingersoll brand "are very, very proud of their Swiss making heritage".

The complainant challenged whether the advert misleadingly implied the watch was made in Switzerland. The complaint was upheld. Although Bid TV had provided evidence that the movement of the watch was manufactured in Switzerland, they considered that, in the absence of any qualification to the contrary, viewers were likely to understand from the claims made that the watch itself was made in Switzerland. Because this was not the case (the watch was manufactured in China), the ASA concluded that the advert breached the Code.

This decision is consistent with an adjudication which was upheld against Heineken last summer in which the ASA rejected Heineken's arguments that its press advert featuring a picture of a glass of Kronenbourg 1664 with text stating "The French are famous for many things, hurrying isn't one of them. So naturally a beer from Strasbourg, Eastern France is made rather slowly..." was merely highlighting the heritage of the beer, and found instead that it implied that the product was brewed in France. The ASA therefore considered the advert to be misleading.

Both of these decisions can be contrasted with another decision in the same month as the Heineken decision in which a complaint challenged whether the claim "Designed and engineered in Britain" was misleading because it implied that the car was manufactured in Britain, whereas only the final assembly was done in Britain, with the majority of the manufacturing process taking place in China. In that case the ASA did not consider that the average consumer would infer from the claim that the car was built in Britain and the complaint was not upheld against MG Motor UK Ltd.

FOOD & DRINK


6. Mars Chocolate UK Ltd, 7 March 2012

Two series of tweets from the official accounts of Rio Ferdinand and Katie Price were posted on Twitter, both relating to Snickers bars.

The tweets from Rio Ferdinand stated "Really getting into the knitting!!! Helps me relax after high-pressure world of the Premiership", "Can't wait 2 get home from training and finish that cardigan", "Just popping out 2 get more wool!!!", "Cardy finished. Now 4 the matching mittens!!!" and "You're not you when you're hungry @snickersUk#hungry#spon ...". The final tweet included a picture of Rio Ferdinand holding a Snickers bar.

The tweets from Katie Price stated "Great news about China's latest GDP figures!!", "Chinese leaders are now likely to loosen monetary policy to stimulate growth. Yay!!", "OMG!! Eurozone debt problems can only properly be solved by true fiscal union!!! #comeonguys", "Large scale quantitative easing in 2012 could distort liquidity of govt. bond market. #justsayin" and "You're not you when you're hungry @snickersUk #hungry #spon ...". The final tweet also included a picture of Katie Price holding a Snickers bar.

Complaint/Decision

Two complainants challenged whether the adverts were obviously identifiable as marketing communications. The complaints were not upheld.

The ASA disagreed with Mars' view that the first four tweets only became marketing communications once the final fifth tweets were posted because the first four tweets did not include any reference to the products or the advertiser. The ASA considered that each tweet in each series formed part of an orchestrated advertising campaign. The tweets therefore became part of an overall marketing communication at the point each was posted.

The ASA considered that the first four tweets in each series served as 'teasers', which, due to their nature, were likely to generate additional interest in the celebrities' postings. It was noted that those tweets did not make any reference to the product or the advertiser and were posted in relatively quick succession (all of the tweets in each series were posted within an hour of each other). In addition, the fifth 'reveal' tweets showed the celebrities with the product and included the text "You're not you when you're hungry @snickersUk #hungry #spon ..." The ASA considered that the combination of those elements was sufficient to make clear the tweets were advertising and that consumers would then understand each series of tweets was a marketing communication (#spon is commonly used on Twitter and stands for 'sponsored').

In that particular context, and given the relevance of the first four tweets to the "You're not you when you're hungry ..." strap line in the 'reveal' tweets, the ASA considered that it was acceptable for the first four tweets to not be individually labelled as being part of the overall marketing communications (this may be partly because these tweets did not feature any references to the products and were all posted in relatively quick succession). The complaints were therefore not upheld.

The ASA have said that they will assess each advert on its own merits, but are likely to take into account factors such as the time-lapse between any "teaser" tweets and the advertising reveal, the audience's understanding and the context of the tweets in deciding whether the tweets are sufficiently recognisable as an advertisement. The CAP Executive has published further advice on recognising marketing communications and identifying marketers in which it cites this adjudication.

Whilst CAP is keen to point out that the Code does not preclude innovative approaches, such as spoof adverts, these should be 'obviously identifiable' and designed and presented in a manner that ensures they are clearly recognisable as advertising material. Marketers must avoid misleading recipients, particularly where the result could cause fear or distress. The CAP also noted that extra care is needed for marketing communications in digital media, which can be more intrusive and for which consumers might not be as sophisticated or experienced at receiving or identifying as marketing communications. Marketers are also advised to check they are not potentially in breach of The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), by undertaking the prohibited commercial practice of falsely claiming, or creating the impression, that they are not acting for purposes relating to their trade, business, craft or profession, or falsely representing themselves as a consumer.

7. Kellogg Marketing and Sales Company (UK) Ltd, 7 March 2012

This adjudication concerned a website for a children's cereal titled "Sugar & health". Additional text stated: "Sugar gets a lot of bad press, and we are frequently being told to 'watch out for sugar'. But why is this? Is it detrimental to health? Let's see what the experts say. An independent dietitian [sic] has gathered the evidence so you can see the facts for yourself. THE FACTS FROM THE EXPERTS A panel of world health experts recently reviewed all the scientific evidence and concluded that a high sugar intake is not related to obesity, or the development of diseases such as heart disease, diabetes, high blood pressure or cancer. Nor was it connected to behavioural problems, such as hyperactivity, in children (1)(2). As well as this, the panel did emphasise the beneficial role that carbohydrates like sugars play in health". (1) and (2) referred to sources at the bottom of the page.

Complaint/Decision

One complainant challenged whether the claim that World Health Organisation (WHO) experts had concluded high sugar intake was not related to obesity, heart disease, diabetes, high blood pressure, cancer or behavioural problems in children, in the context of a website promoting a children's cereal brand, was misleading.

Although the ASA acknowledged that Kellogg's had based their claim on credible scientific evidence and reviews, the complaint was upheld. The ASA considered various literature reviews, scientific papers and expert reports in reaching its decision and concluded that the evidence did generally support the claims that experts did not believe sugar was related to obesity, heart disease, diabetes, high blood pressure, cancer or behavioural problems in children. However, it concluded that by including claims that high sugar intake was not related to diabetes, cancer and obesity, Kellogg's had overstated the certainty of the experts' conclusions, and had failed to state important caveats in relation to some health conditions (particularly obesity).

It considered that the fact that no qualifying words were used in the advert implied that there was absolute certainty about the claims made. Because the majority of the information about the relationship between dietary carbohydrates, sugars and health came from observational epidemiological studies, these were not able to prove causality.

Given that various key health bodies recommended restricting sugar intake and taking into account the importance of accuracy in health and nutritional information relating to children's food products, the ASA considered that the claims were misleading. The ASA noted that the website prominently featured the Coco Pops logo and brand character, so decided that consumers would be likely to relate the information contained on the webpage to the Coco Pops products, as well as to sugar in general. The ASA considered that it was particularly important for health and nutritional information to be accurate for claims relating to children's food products. This high standard should be noted by those advertising similar products.

Similar issues were considered in an adjudication concerning Chewits sweets. The Alliance for Better Food & Farming complained that an internet game, the object of which was to direct an animated dinosaur to locate all nine flavours of Chewit sweets which were hidden within British landmarks, gave children the misleading impression that eating sweets was equivalent to eating fruit because various fruits and sports equipment displayed at the bottom of the screen transferred to the top of the screen once the sweets had been collected. In this adjudication, the ASA considered that it was common for fruit-flavoured foods to use images of the fruits in their marketing. In conjunction with the fact that images of ice cream and cola (which were also flavours of Chewits) also featured and that the game was clearly set in a fictitious situation, the ASA concluded that the game was unlikely to give a misleading impression of the product's nutritional and health benefits.

8. Co-operative Group Ltd, 7 March 2012

This adjudication concerned a Facebook competition for sandwich design which included the text "Design a sandwich in our unique competition and the winner will receive £1,000 in cash plus the sandwich will go on sale in our stores with their name on it! It's all in the making. Enter now ... Ts and Cs apply. See website for details".

Complaint/Decision

The complainant, who was one of the competition finalists, challenged whether the competition had been administered fairly as they believed the winning entry had breached the terms and conditions.

The complaint was upheld. From the 3,000 entries to the competition, six sandwich designs were selected to appear on a microsite within the Co-operative website where the public could vote for their favourite entry. A cookie-based tracking system was used to register votes as a means of tracking the activity of individual internet users because the rules of the competition stated that only one vote per person was permitted during the voting process. However, the Co-operative conceded that this system was open to abuse and that and that a member of the public could register more than one vote by disabling or clearing the cookies on their computer. Although the Co-operative had taken steps to remove duplicate votes, the ASA considered that the system used was not sufficiently robust to ensure that the 'one vote per person' rule could reliably be enforced, therefore it concluded that the competition had not been administered fairly.

This adjudication makes clear that advertisers must ensure that they are able to administer competitions in accordance with the rules which they set. Online voting competitions are a great way of encouraging consumer engagement with a brand, but issues concerning whether a competition is fair can result in a variety of negative consequences.

9. ASDA Stores Ltd, 7 March 2012

This adjudication concerned two national press adverts for supermarket price comparisons.

The adverts included the wording "Only one supermarket is ... always 10% cheaper or we'll give you the difference guaranteed."

A banner at the top of the first advert contained a collection of roundels which stated 'SALE', 'Half Price', 'Price Drop', '50% off', 'Price drop', 'cheap'. The second advert, stated "ONLY ONE supermarket ... ... has 1,451 prices cheaper". It included a graphic which showed that Morrisons had 482 products cheaper, Tesco had 586 products cheaper, ASDA had 1,451 products cheaper and Sainsbury's 613 products cheaper. Both adverts included other qualifying text.

Complaint/Decision

Tesco challenged whether the claim "Only one supermarket is ... always 10% cheaper" in both adverts was misleading.

The complaint was upheld.

ASDA contended that the claim was a price promise, not a lowest price claim. However, given that " ... always 10% cheaper" appeared in bold text in the middle of the various 'SALE', 'Half Price', 'Price Drop' claims in advert 1, the ASA considered that consumers were likely to interpret these claims as referring to the price of ASDA goods. It was therefore considered to be an absolute 'lowest price' claim. Although the footnote explained ASDA's price promise, the ASA held that this qualification contradicted ASDA's absolute claim that they were always the lowest on price and was therefore misleading.

The ASA considered that the claim "ONLY ONE supermarket ... ... has 1,451 prices cheaper" in advert 2 made clear that ASDA did not always have the cheapest prices and offered a price promise. However, because this advert also included the claim "Only one supermarket is ... always 10% cheaper", the ASA considered that consumers would interpret this as a lowest price claim.

It was therefore held that the two parts of advert 2 were contradictory. Consumers would be unclear as to whether ASDA offered a lowest price claim or a price promise, thereby rendering the claims misleading.

In an adjudication on a similar issue involving an email sale advert for Photobox Ltd this month, the claim "up to 50% off everything" was held to be misleading because the promotion excluded various products. Although a qualification detailed the exclusions, the ASA considered that these constituted significant restrictions to the offer and therefore contradicted the claim.

10. LivingSocial Ltd, 7 March 2012

This adjudication concerned an alcohol sales promotion on LivingSocial's website which featured a photo of a bartender preparing four cocktails, and text which stated "Four Crafted Cocktails or £30 to Spend on Beer, Wine, and Spirits ... Halloween, Bonfire Night ... Christmas - we're bang in the middle of the party season and it's time to spread our social wings. Today's hedonistic deal from the newly re-branded, new look Adventure Bar is your ticket to the best party in town. Shuffle over £14 and you'll get access to four crafted cocktails from the brand new menu -- a £40.80 value......... For the purists amongst you, £14 will get you £30 to spend on beer, wine, and spirits. At the bottom of the advert, the terms were listed under the heading "the fine print" and stated "limit one purchase per person - limit one voucher per group per visit - entire value must be used in a single visit".

Complaint/Decision

The complainant challenged whether the advert was socially irresponsible because it encouraged excessive drinking.

Although the ASA noted that certain aspects of the advert such as 'Today's hedonistic deal' might support the complainant's point, they focused on the limitation of the deal to one purchase per person and one voucher per group per visit. The ASA considered, as a result, that the promotion targeted groups on a night out, as opposed to individuals, with the main point of the advert being the promotion of the bar as a London venue for a night out and the promotion of the different cocktails available there. The ASA considered that the amount of alcohol being promoted was not excessive when combined with the one voucher per group limit. The ASA therefore held that the advert was not socially irresponsible and did not encourage excessive drinking.

This adjudication is consistent with the ASA's adjudication in relation to poster adverts produced by Bargain Booze, featuring the slogan "WE LOVE STUDENTS! WIN a year's supply of drink!". In that case, the ASA did not uphold complaints that the advert promoted irresponsible drinking because the alcohol prize was provided weekly, which (although meaning that the prize winner would receive a maximum amount, which, if consumed all at once, was over the daily recommendation) it considered reasonable in light of the way in which wine and beer was packaged and traditionally sold. In addition, it considered that a weekly collection or distribution was less likely to encourage excessive drinking than prizes collected or distributed on a monthly or quarterly basis.

11. Marlow Foods Ltd t/a Quorn Foods, 21 March 2012

This adjudication concerned a website advert which stated "Exciting new fish range in stores now. We're doubly excited this month. Not only can we announce our new fish range, but we might also put an endangered meal back on the menu.....? Popular fish like cod and tuna are endangered by overfishing. And sustainable alternatives, like pacific cod, are a bit heavy on the food miles. So, never ones to shy away from a global challenge, Quorn" brings you fish, but without the fish-in". Further text stated "Tuck into classics including Fish-less Fingers and Tuna Style and Sweetcorn Crispbakes. They're full of flavour, a source of protein, and the Fish-less Fingers are enriched with healthy omega 3. Oh, and all with 0% fish....".

Complaint/Decision

The Seafish Industry Authority challenged whether:

a) the claim that cod and tuna were endangered species was misleading and could be substantiated;
b) the advert misleadingly implied Quorn's fish range offered the same benefits of omega-3 found in oily fish; and
c) the advert misleadingly implied Quorn's fish range offered the same general health benefits as fish.

The first complaint was upheld, but the other two were not. In relation to the first complaint, the ASA considered that the wording used implied that all cod and tuna species were endangered. The ASA noted that this was not the case. The ASA acknowledged that, although there was no internationally recognised definition of "endangered", the International Union for Conservation of Nature (IUCN) were considered a global authority on the conservation status of species. Marlow Foods had provided evidence that IUCN had classed some, but not all species of cod and tuna as endangered, but there was no evidence that all cod and tuna species were endangered. Because the ASA considered that a species' conservation status could be an important factor in consumer purchasing decisions, the claim was held to be misleading.

In relation to the second complaint, the ASA was satisfied with the level of evidence provided, which showed that the omega-3 in the advertised product was the same type as that found in fish and that it was present in the product in a sufficient amount to merit the claim 'a source of omega-3 fatty acids'. Because the advert did not refer to oily fish, it did not imply that the benefits offered by the product were the same as those of oily fish. In addition, the ASA noted that consumers would be aware that omega-3 could be obtained from a variety of sources, and that there might be differences between the health benefits of those sources

In relation to the third complaint, the ASA considered that the evidence provided by Marlow Foods showed that the claims made about the products were accurate and that Marlow Foods were authorised to make such nutritional claims. The ASA considered that, although the advert made no direct comparison between health benefits of the product and those of real fish, consumers were likely to consider this when viewing the advert. However, the ASA concluded that because the advert did not claim or imply that the product offered the same general health benefits as fish it was not misleading.

TRAVEL & TOURISM


12. Ryanair Ltd, 7 March 2012

This adjudication concerned press adverts which were headed "bye bye Thomas Cook". Extracts of news stories were included, which stated "Thomas Cook in dire straits..." and "... accumulated debts of nearly £1 billion - Source: www.dailymail.co.uk 22 Nov 2011". Further text stated "Book Ryanair. over 3 billion in cash reserves". One advert also stated "Ryanair - guaranteed to keep flying this Christmas", with others also stating "We're financially secure" and "Ryanair - guaranteed to keep flying".

Complaint/Decision

A total of fifteen complainants raised between them four issues with the adverts: (i) that they were offensive because they mocked Thomas Cook's financial difficulties; (ii) that they were likely to cause fear or distress to Thomas Cook customers and employees; (iii) that they denigrated Thomas Cook by falsely implying it was likely to go into administration and that it was risky to book with them and (iv) that they implied that Thomas Cook would have ceased trading by Christmas 2011.

The first two complaints were not upheld. The ASA considered that, although potentially distasteful, the use of 'Bye Bye Thomas Cook' was unlikely to cause serious or widespread offence. The ASA considered that there had been widespread media coverage of Thomas Cook's financial difficulties and that customers and employees were therefore likely to be aware of this. The ASA considered that although the adverts might have added to customer concerns about their holidays and employee concerns about their jobs, the content was unlikely to cause fear or distress in the context of an advert for a competing airline.

The two other complaints were upheld. The ASA considered that, although the adverts only reproduced factual headlines that had already been published, that there had been widespread media coverage of the issue and that customers were likely to be aware of the financial difficulty that Thomas Cook were in, the use of 'Bye Bye Thomas Cook' alongside the newspaper headline extracts would lead consumers to believe that Thomas Cook was likely to go into administration and that it would be risky to book holidays with them. The ASA therefore considered the adverts to be misleading and denigratory. Similarly, the use of 'Bye Bye Thomas Cook' alongside the newspaper headline extracts and the text 'Ryanair – Guaranteed to keep flying this Christmas' implied that Thomas Cook would cease trading by Christmas 2011. As that was not the case, the ASA therefore considered the claims to be misleading.

The adjudication upheld against Point-2 Equine Ltd also involved a complaint by a competitor that an advert was denigratory. In the magazine advert, Point-2 Equine stated that their product was the only CE certified product of its type in the world and claimed "Riders Beware ... ", " ... there are some other brands of air jackets being peddled into the market ... " and "Please contact trading standards ... ". Although there was no direct reference to the competitor, the magazine in which it was placed contained an article referring to the launch of the competitor's product in the UK and referred to the fact that rumours had circulated that the competitor was trading illegally without the CE European safety standard approval. Point-2's claimed that they had not known about the article when they had placed the advert, but the competitor disputed this. The ASA considered that consumers reading the article before of after seeing the advert would be expected to link the two and assume the advert claims referred to the competitor. Therefore, the ASA considered that the claims were denigratory and discredited the competitor's business.

HOUSEHOLD


13. Vax Ltd, 28 March 2012

Complaint/Decision

This adjudication concerned a television advert for the Vax Air Cylinder multicyclonic vacuum. The voice-over stated "Just because you're a small one, it doesn't stop you doing what the big ones do. This is the remarkable Vax air cylinder. It's light, compact, with outstanding suction power and 60% more capacity than the average multicyclonic cylinder." On-screen text stated "Average across top 10 selling multicyclonic cylinder vacuums April '11. Vax.co.uk for details".

Dyson challenged whether the claim "outstanding suction power" was misleading because the Vax product had only sixth highest suction power out of the top ten selling multicyclonic cylinder vacuums and they considered that consumers would understand the word "outstanding" to mean that the Air Cylinder had the best suction power compared to the top ten, or at least came very near the top of the top ten.

However, the ASA disagreed and concluded that this was not an absolute claim. It considered that consumers would interpret the claim in context with onscreen qualifying text, i.e. meaning that the suction power was higher than the average suction of the top ten products. As evidence was provided to show that this was the case, the claim was held not to be misleading.

In contrast, in Colourful Coffins Ltd, the use of the absolute claim '100% recycled cardboard' was challenged. Although the ASA did not agree with the basis of the complainant's challenge (the ASA thought that the average consumer would not take bonding agents and glue into their consideration of the claim), it considered the claim misleading because the outer edges of the cardboard were made of non-recycled paper. In coming to this conclusion, the ASA considered what an average consumer would take into account in their understanding of the claim.

These adjudications give an indication of how the ASA distinguish between "absolute" claims and those which fall short of this. Before making any "absolute" claim, advertisers should take care to ensure that it can be substantiated. Terms and conditions must clarify, rather than contradict the claim.

14. Ergoflex Ltd, 21 March 2012

This adjudication concerned two websites for a mattress retailer which set out various claims that the mattresses were award-winning and that the mattresses had been 'seen in' various media including Mail on Sunday, the Telegraph, The Observer, the Daily Mail, House Beautiful, The Sunday Times, 4 Homes, and Channel 4 as well as 'on TV'.

Complaint/Decision

The complainant challenged whether the claims that the mattresses had won awards were misleading and could be substantiated; and whether the claim "As seen in" misleadingly implied that the mattress had featured in editorials or product reviews in those media. Both complaints were upheld. The claim in relation to 'award-winning' was held to be misleading because the ASA had seen no evidence that the products had won any awards given by an independent organisation. The ASA noted that positive product reviews did not constitute what consumers would understand to be 'awards'.

In relation to the second complaint, although neither advert actually stated that the mattresses had featured in editorials or product reviews in the media listed, the ASA considered that consumers would understand 'as seen in' to mean that the media listed had taken editorial decisions to feature the mattresses and that these therefore constituted independent endorsements. Because, in relation to all but one of the publications, the retailer had in fact paid for adverts for the mattresses to appear, the claim was held to be misleading.

In relation to appearances on TV, the ASA noted that these related to the programmes 'This Morning', 'Deal or No Deal Christmas Stars' and 'Help! My house is falling down' and that, noting correspondence provided, the claims were based on the editorial decisions of the programme makers to include Ergoflex products in those programmes. However, because the mattresses were not specifically referenced during the programmes and were not therefore readily identifiable as Ergoflex products, the ASA concluded that the logos of Channel 4 and 4Homes in one advert following the claim "As seen in", and the general claim "as seen on TV" in the other advert, were misleading.

This adjudication was further discussed in a CAP article, which noted that it had resulted in the ASA raising the standard of substantiation for the use of 'as seen on TV' claims. Where previously the ASA had rejected a complaint about an advert for a product described as having been "... seen on TV". because the provision by the advertiser of invoices for advertising space bought on various channels, lead the ASA to consider that the claim was unlikely to mislead, the Ergoflex adjudication means that marketers can no longer base the claim on paid-for advertising alone, or the use of a product as an unbranded and unidentified prop in a TV programme. The CAP advised that marketers wanting to make similar claims in relation to coverage of their products should use the wording 'as advertised in ...' or similar.

15. DFS Trading Ltd, 28 March 2012

This adjudication concerned a TV advert which stated: "... so right now, there's at least £400 off every sofa in the entirely new Style Collection. There's interest free credit and everything is payment free until next Easter ...." On screen text stated "4 years free credit on everything".

Complaint/Decision

One complainant challenged whether the advert was misleading because it failed to state that obtaining credit was subject to status and terms and conditions. The complaint was not upheld.

The ASA noted Clearcast's view on the challenge, that it related to compliance with the Consumer Credit (Advertisement) Regulations 2010. DFS also provided a letter of assurance from their legal adviser confirming to them that the advert was compliant with these regulations. The ASA also took advice from the OFT, which informed them that there was no legal requirement for credit advertising to include the statement 'subject to status'. The ASA considered that viewers would recognise and understand that the advert was for credit and that they would be subject to a credit check if they applied. It therefore considered that the advert was not misleading.

This is a good example of the ASA taking into consideration the average consumer's understanding of a particular industry and its requirements. Although it considered that the status check requirements for credit applications were generally known, qualifications and requirements for other offers in other industry areas may need to feature more prominently. This will depend on the circumstances.

OTHER

16. Paramount Pictures UK, 14 March 2012

This adjudication concerned three ten second TV adverts for the horror film Paranormal Activity 3. Each featured quickly changing scenes shot in the style of video-camera footage.

One advert showed two young girls standing in front of a mirror with a video camera set up behind them. One of the girls said "Remember the rules?" and turned off the light. The red recording light of the video-camera was shown on screen, while the girls chanted "Bloody Mary, Bloody Mary, Bloody Mary". One of the girls shone a torch under her chin and screamed. The other girl screamed as well and said "Katie, it's not funny!" before they left the room. The light from the hall revealed a silhouette of a figure standing in the room. The other two adverts featured different scenes in a similar style.

Complaint/Decision

Twenty-nine viewers challenged whether the adverts were likely to cause distress to children and adults, and fifteen challenged whether the ads were suitable for broadcast before 9pm. Both complaints were upheld.

Clearcast had approved all three adverts, with a post-7.30pm timing restriction, on the basis that the brevity of the adverts alleviated the potential for harm or offence. However, the ASA considered that the general tone was still 'of fear and threat', with people screaming in all three adverts. This sense of threat was exacerbated by the scenes shown being based in a recognisable domestic setting with ordinary people.

The ASA held that a post-7.30pm timing restriction was insufficient. The overall atmosphere of fear and menace was likely to be upsetting to older children as well, so a post-9pm restriction should have been instated. In relation to the potential to disturb adult viewers, the ASA considered that the adverts did not go beyond what would generally be expected from promotion of a 15-certificate horror films and so a post-9pm restriction would suffice.

The issues of distress and suitability for viewing by children were also raised in an adjudication this month concerning an NSPCC direct mailing advert in the form of a DVD case which featured the text: "Kerry's father asked her to do the unthinkable. And then he filmed it". The reverse of the box included the name and address of the recipient and the NSPCC details. The leaflet, inside the DVD case, including further information about Childline and a donation form, stated: "The footage of Kerry is now with the police. As is her father. Because she was able to talk to childline".

The complainants challenged whether the text on the cover was disturbing and would cause distress and whether it was inappropriate to be seen by children. Neither complaint was upheld. The ASA noted that the subject of child abuse would inherently cause discomfort, but that this was counterbalanced by the worthwhile purpose of raising awareness of it. The ASA considered that the NSPCC had taken steps to target the mailing to over 18s and that it was unlikely that children would understand the references made to child abuse. The advert was not irresponsible and did not breach the Code.

These two decisions show the types of issues that the ASA will consider as causing distress to children and those that will not. Clearly the visual imagery in the Paramount adverts was considered to be more explicit and more likely to be understood by children. The ASA often allows more leeway to charity advertisers, provided the charity takes reasonable steps in relation to the targeting of adverts.

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 30/04/2012.

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