UK: ASA Adjudications Snapshot – June 2008

Last Updated: 15 July 2008
Article by Susan Barty and Susie Carr

This snapshot provides a selection of the most interesting ASA adjudications from June. It provides a summary of some of the key issues considered in the adjudications, which we consider you may find useful. For example, this month's highlights include consideration of the term "carbon neutral" and use of the colour green, marketing communications which were not clearly identified, misleading domain names and denigration of a competitor's services.

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This snapshot provides a selection of the most interesting ASA adjudications from June.  It provides a summary of some of the key issues considered in the adjudications, which we consider you may find useful.  For example, this month's highlights include consideration of the term "carbon neutral" and use of the colour green, marketing communications which were not clearly identified, misleading domain names and denigration of a competitor's services.

GREEN CLAIMS

1. EDF Energy plc, 4 June 2008

A TV ad stated that "EDF Energy aim to reduce the Carbon intensity of CO2 emissions from their electricity productions by 60%".  An internet ad showed 'green' images including countryside and wind turbines, and was accompanied by a song that included references to being 'green'.  Text stated "if we don't save today, we can't save tomorrow...Find out how EDF Energy is combating climate change".

Complaint / Decision

The complainants considered that the term "carbon intensity" was misleading because the viewer would interpret it as meaning that EDF intended to reduce their CO2 emissions.  In respect of the internet ad, the complainants claimed that the text misleadingly implied that EDF was a 'green' energy supplier.

Neither of the complaints were upheld.  The ASA considered that the term "carbon intensity" would be likely to be interpreted by reviewers as relating to absolute carbon emissions.  EDF demonstrated that if they achieved their aim, they would also reduce their absolute carbon emissions by 60% and therefore whichever way the viewers interpreted the claim, they were unlikely to be misled.

In respect of the internet ad, the ASA concluded that although there were 'green' references in the ad, viewers were unlikely to infer from the ad that EDF were a 'green' supplier.  The ASA considered that viewers were likely to understand that the ad merely highlighted that EDF wanted to take steps to tackle climate change.  It was noted by the ASA that if viewers click on the ad, they are directed to EDF's internet microsite, which included detailed information about EDF's steps to tackle climate change.

This adjudication shows references to "green" may be acceptable provided that they are supported by clear information.

2. Eurostar Group Ltd, 4 June 2008

An e-mail and a national press ad for Eurostar services from London St Pancras stated that it was less than 4 months to go before "carbon neutral journeys" would be provided by the Eurostar service.

Complaint / Decision

The complainants challenged whether the Eurostar service could be referred to as "carbon neutral".

The complaints were not upheld.  The ASA concluded that most people would expect a claim of "carbon neutral journeys" to refer only to the aspects of the journey for which Eurostar was responsible.  For example, Eurostar were not in control of the energy usage of the Channel Tunnel.  The ASA consulted with experts and noted that carbon neutrality relates to energy consumption or fuel burn of the vehicle in question, not external emissions associated with infrastructure. 

This provides some useful clarity as to the stages of the product/service which should be considered when using such a claim.

3. Fiat Group Automobiles UK Ltd, 25 June 2008 (Use Of Colour Green)

Two press ads for Fiat cars were headlined "E CO2 NOMY OF SCALE" and "LESS CO2 NO CONGESTION CHARGE".  Text beneath the ads included reference to the low emissions of the cars.  CO2 was printed in green.

Complaint / Decision

Two challenges were made.  The first related to misleading pricing and was upheld.  The second complaint was that use of the "CO2" in green print and the explanatory text indicated that the ad was for low emissions cars.  However, 3 of the 4 prices shown in the ad were for models of the car that had considerably higher CO2 emissions.

The ASA also upheld the second complaint.  The ASA concluded that the "CO2" marked in green and the explanatory print gave the impression that the ads were for low CO2 emission cars.  The ASA noted the link between the colour green and the colour-coded fuel economy label for vehicles featured on the Department for Transport's website.  According to this coding, 'green' cars were those which emitted the least CO2 as well as benefiting from cheaper car tax.  As not all cars pictured fell within this bracket, the ad was found to be misleading.

FOOD

4. Cereal Partners UK, 11 June 2008

A TV ad, for breakfast cereals, included a voice-over that stated, "Experts say you need three servings of wholegrain a day..."

Complaint / Decision

Seven viewers challenged whether the claim "Experts say you need three servings of wholegrain a day..." could be substantiated.

Complaint upheld: The ASA concluded that the ad implied that there was a consensus of opinion among experts regarding the quantity of wholegrain that should be eaten on a daily basis.  The ASA noted that the UK Government advice recommended a healthy, balanced diet, but it did not specifically recommend a daily quantity of wholegrain foods that should be eaten.  Additionally, the ASA noted that the Food Standards Agency advised the public "to try to choose wholegrain foods whenever possible"

The ASA drew parallels with the "3-a-day" phrase and the Government's "5-a-day" recommendation for fruit and vegetables and considered that it would cause confusion among viewers.

MARKETING

5. Virgin Media Ltd, 18 June 2008 (Marketing Letters Not Identified As Such On The Envelope)

A marketing mailing for a Virgin Media broadband service was contained in a plain, white envelope with no markings to identify Virgin as the advertiser.  On the right hand side of the envelope, there was a small hole that went through the envelope and some of its contents and was designed to look like a bullet hole surrounded by burn marks.  The envelope contained a leaflet about Virgin Media broadband, which had a similar 'bullet hole' and clearly displayed the Virgin Media logo.

Complaint / Decision

There were 3 challenges.  The complainants challenged whether the use of the bullet hole marking was likely to cause 1) serious or widespread offence and 2) unnecessary fear or distress.  The ASA also challenged whether the envelope made clear that it contained marketing material.

Complaints 1 and 2 were not upheld.  The ASA considered that the bullet hole design was a gimmick and the recipients of the letter were unlikely to think that it was an actual bullet hole.

However, the third complaint was upheld.  The ASA concluded that the envelope should state clearly that it contained marketing material to avoid confusion about the status of the envelope. 

6. People For The Ethical Treatment Of Animals T/A PETA, 18 June 2008

A circular for People for the Ethical Treatment of Animals (PETA) showed a caricature of KFC's Colonel Sanders covered in blood holding a chicken by the legs in one hand and pointing a knife at in the other.  Text stated "KFC Cruelty The Colonel's Secret Recipe Includes: Live Scalding, Painful Debeaking, Crippled Chickens PeTA KentuckyFriedCruelty.co.uk."  The reverse of the circular contained a number of other pictures of chickens in distressing conditions and graphic, detailed 'recipe instructions' for 'KFC Cruelty'

Complaint / Decision

The complaint was whether the circular was offensive, irresponsible and unsuitable for untargeted delivery.

Perhaps a little surprisingly the complaint was not upheld.  The ASA noted that the circular was intended to promote the views of PETA.  It considered that PETA had made reasonable efforts to instruct its supporters not to distribute the leaflet in an untargeted way.  Therefore, the ASA concluded that the leaflet had not been targeted inappropriately and was unlikely to cause serious or widespread offence or distress to children.

This adjudication may demonstrate a reluctance of the ASA to interfere in matters which might involve the right to freedom of speech.  However, it is notable that the adjudication did not include any response from KFC as KFC was not a complainant.  As such, the actual claims made by PETA were not challenged which one might have expected.

OTHER

7. LG Electronics UK Ltd, 4 June 2008 (Encouraging Dangerous Behaviour)

A TV ad for a mobile phone included a scene showing a woman stuck in her car in a traffic jam.  The ad then showed a close up of the mobile phone, as a woman's finger touched the screen on the phone.  The ad then rotated to show a variety of different, more pleasurable scenes, the aim being to convey the text of the advert which said "Moodswing? Modeswing!"

Complaint / Decision

The thirty-three complainants challenged whether the ad encouraged dangerous behaviour by showing a woman using her mobile phone while driving.

The complaint was upheld.  The ASA considered that the sequence of images of the woman in the car, before and after the image of the mobile phone, implied that she had been using her mobile whilst at the wheel of the car.  The ASA noted that the woman's hands had remained on the steering wheel throughout and that the mobile phone was only shown in a neutral position.

See also complaint 10 below.

8. Inter-Markets Ltd T/A gov-certificates.co.uk, 11 June 2008 (Misleading Domain Name)

A sponsored link on Google was headlined "Birth Certificates UK".  Text under the headline gave the website www.gov-certificates.co.uk and stated "Official Birth Certificates from the UK. Order online!"

Complaint / Decision

The complainant challenged whether the domain name www.gov-certificates.co.uk misleadingly implied that the advertisers were an official government agency.

The ASA upheld the Complaint.  The ASA considered that the use of 'gov' in the domain name implied that the advertiser was an official government agency.

This adjudication illustrates one of the problems arising out of the ASA's limited remit.  It was not possible for the ASA to prevent Inter-Markets Ltd from using its own website to refer to the domain name and call it official.

9. EasyJet Airlines Co Ltd, 11 June 2008 (Promotions – Referring To Vouchers As 'Cash' And NPN Route)

An ad for scratchcards in easyJets in-flight magazine stated "Funcards – WIN £20,000...Thousands of other cash prizes are also up for grabs with a 1 in 4.27 chance of winning.  With £20,000 to be won...what are you waiting for? (...No Purchase Necessary)".  The smaller prizes available were actually vouchers which could be redeemed against goods from the easyJet on-board kiosk.

Complaint / Decision

The complainant maintained that "thousands of other cash prizes are also up for grabs" was misleading because it implied cash prizes, not redeemable vouchers.  The ASA also challenged whether there was a "No Purchase Necessary" route as claimed.

Both complaints were upheld.

The ASA considered that the phrase "thousands of other cash prizes are also up for grabs" would clearly cause consumers to believe that there were thousands of other cash prizes, in addition to the prize of £20,000.  The ad was therefore misleading, as the reality was that there were lots of redeemable vouchers to be won.  The ASA also noted that the ad should have specified the minimum number and nature of any prizes and it had failed to fulfil this requirement.

The ASA also concluded that the 'No Purchase Necessary' route should have been clearly explained in the ad itself and not just on the easyJet website.

10. Unilever Ireland Ltd, 18 June 2008 (Encouraging Dangerous Behaviour)

A TV ad for Sure Girl deodorant showed three young women dancing while seated in the back of a moving vehicle.  The women were not wearing seatbelts. 

Complaint / Decision 

Twenty-one complainants challenged whether the ad was irresponsible because the young women were shown dancing in a moving vehicle without wearing seatbelts.  The complainants maintained that this encouraged dangerous behaviour.  Unilever responded by commenting that the VW van was a vintage vehicle, without rear seatbelts.  Additionally, the van was stationary during filming and the motion of the vehicle was caused by the young women dancing.

Despite Unilever's response, the complaint was upheld.

The ASA considered that viewers were likely to expect passengers to be wearing seatbelts, regardless of the age of the vehicle.  The ASA concluded that although the vehicle was in fact stationary, the movement of the vehicle gave the impression that it was in motion.  Therefore, the ad was likely to be seen as condoning or encouraging an unsafe practice.

In this decision, the ASA have clearly adopted the same strict line as was taken in the LG Electronics adjudication above.  Once again, a relatively high number of complainants were received and the ASA decision indicates the lack of tolerance for motoring ads which might encourage dangerous behaviour.

11. Interprise Solutions LLP, 25 June 2008 (Comparative Claims, Denigration)

A direct mailing for a software package showed an office worker kneeling on a deserted beach with his hands stretched up towards the sky.  In front of the man were the letters SOS written in pebbles.  A headline stated "Sick Of Sage?" with S, O, S highlighted in green.  The text on the mailing stated "If so, take a look at Interprise Suite...Integrated CRM, BI...i.e. not a bag of bits".

An internet banner was also headlined "Sick Of Sage?" with S, O, S highlighted.  The beach image and the text "If so, take a look at Interprise Suite" appeared below the headline.

Complaint / Decision

Sage (UK) Limited complained that the ads denigrated their product and took unfair advantage of the reputation of their trade mark SAGE.

The complaint was upheld.  The ASA considered that the readers would infer from the ad that Sage users experienced distress when using the Sage product and needed rescuing.  The ASA considered that the phrase "bag of bits" would be seen as a reference to Sage and also that the use of S in SOS would draw attention to the trade mark SAGE in a prominent way.  The ASA concluded that the ad denigrated Sage and their products and took unfair advantage of the SAGE trade mark.

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 15/07/2008.

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