UK: ASA Adjudications Snapshot – July 2008

Last Updated: 8 August 2008
Article by Susan Barty and Susie Carr

This article provides a selection of the most interesting ASA adjudications from July. 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 the likely appeal of ads to children, consideration of the term 'carbon neutral', inclusion of points of difference in comparison ads and substantiation of price offer claims. We have also included and Ofcom decision which reminds sponsors that they should not include advertising messages in sponsorship time.

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This article provides a selection of the most interesting ASA adjudications from July. 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 the likely appeal of ads to children, consideration of the term 'carbon neutral', inclusion of points of difference in comparison ads and substantiation of price offer claims. We have also included and Ofcom decision which reminds sponsors that they should not include advertising messages in sponsorship time.

GREEN CLAIMS

Daimler Chrysler UK Ltd, 2 July 2008 (use of "Green claims" in relation to 4x4 vehicles)

British Sky Broadcasting Ltd t/a Sky, 9 July 2008 (meaning of 'carbon neutral')

FOOD AND DRINK

McCain Foods (GB) Ltd, 30 July 2008 (reference to FSA traffic light symbols/ "Eat your greens")

Bacardi-Martini Ltd, 30 July 2008 (linking alcohol to sexual activity, confidence and popularity; appeal to children)

GAMING

Littlewoods Gaming, 2 July 2008 (characters which appeal to children)

Cashcade Ltd t/a Foxy Bingo, 23 July 2008 (characters which appeal to children)

COMPARATIVE ADVERTISING

Orange Personal Communications Services Ltd, 16 July 2008 (comparisons – inclusion of points of difference)

Superdrug Stores plc, 23 July 2008 (price comparisons)

Scottish and Southern Energy plc, 30 July 2008 (inclusion of significant terms)

OTHER

Ofcom Broadcast Bulletin, 7 July 2008 – GMTV Weather (distinguishing sponsorship from advertising)

GREEN CLAIMS

1. Daimler Chrysler UK Ltd, 2 July 2008

A press ad for 4x4 Jeeps was divided into two sections. One section pictured a Jeep above the text "All New Jeep Patriot – Winner 4x4 of the Year". The other half of the ad included images of four vehicles and was headlined "From the Green 4x4 Range of the Year" and "Winner Green 4x4 range of the Year". These statements were followed by an award logo and the logo of '4x4 and MVP Driver' magazine. This half of the ad also stated "New Jeep Compass Stylish...up to 43.5 mpg (combined)". A footnote stated the fuel consumption figures for the jeep range.

Complaint/Decision

12 complainants raised 4 issues regarding the 'green' claims made by the ad. These were, first, that the description of the 4x4 Jeep range as 'Green' was misleading given that the range had high CO2 emissions. The second issue was that the ad did not make it sufficiently clear that the award was given by a 4x4 magazine. The third issue was that the ad was misleading in suggesting that the whole Jeep range had won the award, whereas it was only the Jeep Patriot. The fourth issue was that the consumption figure for the Jeep Compass was misleading because the vehicle was more likely to be used in urban areas where performance was more limited.

None of the complaints were upheld. The ASA concluded that, although the vehicles pictured were generally at the higher end of the CO2 emissions range, the readers were likely to understand the claim was for 4x4s rather than cars in general. The ASA considered that the 4x4 & MPV Driver logo was displayed clearly in relation to both awards and the ad was therefore not misleading in identifying the magazine giving the awards. The ad was clearly divided and readers were likely to understand that the award related to the Jeep in that section of the ad. In respect of the fourth claim, the ASA noted that 43.5 mpg rate was unlikely to be achieved by the Jeep Compass in an urban environment. However, the ASA considered that the footnote gave fuel efficiency information in different driving environments and the ad was unlikely to mislead.

This adjudication shows that the term 'Green' can be used even on products which would not usually be considered to be green, provided that the claims are supported by clear explanation and evidence. The use of the footnote to provide further information also enabled Daimler Chrysler to claim a mpg rate that might otherwise have been misleading

2. British Sky Broadcasting Ltd t/a Sky, 9 July 2008

A TV ad and two national press ads for Sky included the statement that Sky is "CarbonNeutral". The TV ad also included 'green' images, such as a tiger hugging a car in a field surrounded by flowers. One of the press ads and the TV ad included text promoting the website, "sky.com/environment".

Complaint/Decision

Four complainants challenged whether Sky could substantiate the claim that they were a 'carbon neutral' company.

The complaint was not upheld. The ASA considered that most viewers were likely to interpret the claim "CarbonNeutral" to mean that Sky had taken steps to reduce its carbon emissions to zero from its business activities that were within its reasonable control and offset any remaining emissions through robust and verifiable schemes.

An expert advised the ASA that Sky had complied with the Greenhouse Gas Protocol and that this was a core element of generally accepted best practice in terms of accounting and reporting greenhouse gas emissions as part of a carbon neutrality claim. The expert said that by including Scope 3 emissions (e.g. emissions from premises, vehicles, operational electricity consumption and employee business travel), Sky had sought to go above generally accepted best practice. The expert said that factors to be considered when determining whether an offset is robust include validation, verification, project type, timing of credits, leakage and double counting.

The ASA concluded that Sky had followed the generally accepted best practice methodology for boundary setting and calculation methodologies for emissions accounting and reporting. The offsets were also certified and therefore Sky had substantiated its "CarbonNeutral" claim.

This provides some useful guidance on the principles that should be adopted to substantiate a "carbon neutral" claim and that scientific evidence should be available to support claims based on accepted best practice.

FOOD AND DRINK

3. McCain Foods (GB) Ltd, 30 July 2008

A poster for oven chips was headed "Eat your greens" above four green circles and an image of a bowl of chips. The four circles each contained text, stating LOW FAT, LOW SATURATES, LOW SUGAR and LOW SALT respectively. Below the circles there was a picture of the product pack and the text "It's all good".

Complaint/Decision

9 complainants challenged the reference to "greens". They considered it misleadingly implied that oven chips were a green vegetable and could count as one of your five vegetables a day.

The complaints were not upheld.

The ASA noted that the reference to "green" was, in this instance, intended to refer to the FSA traffic light labelling scheme, which was designed to provide consumers with readily accessible information about the level of a particular nutrient in a product. The scheme used green circles to represent that the food was low in the particular nutrient. The ASA concluded that the clear use of green traffic lights directly below the phrase "Eat your greens" would be understood by consumers to refer to the FSA traffic light labelling scheme. This was emphasised by the text LOW FAT, LOW SATURATES, LOW SUGAR and LOW SALT and it was noted that the ad contained no reference to the government's '5 A Day' recommendation for fruit and vegetables.

This adjudication appears to have assumed a relatively high level of consumer knowledge regarding the FSA traffic light labelling scheme. The decision is in some ways surprising; given that the subject matter was in fact a vegetable, it is more conceivable that a consumer would be mislead by the term "eat your greens" than if it was advertising, for example, a dairy prod

4. Bacardi-Martini Ltd, 30 July 2008

A TV ad for Bacardi Superior opened with an image of a bottle of the product. Droplets splashed from the bottle, as the bottle vibrated to the bass beat of a club track. The bottle then disintegrated into the liquid, which transformed into the shape of a man. The bass beat became a full dance track and the virtual man began to move and was joined a virtual woman. The virtual man and woman danced opposite each other, whilst liquid splashed around them. The virtual figures then fused together, reforming into a glass of Bacardi and cranberry. A bottle of Barcadi Superior was then shown with the text "made to mix" and "with cranberry".

Complaint/Decision

Three challenges were made. The first related to whether the images of the virtual figures linked alcohol with sexual activity or success. The second was whether the virtual figures, in addition to the phrase "made to mix" suggested that alcohol increased your popularity and confidence. The third challenge was whether the ad was likely to appeal strongly to people under the age of 18.

None of the complaints were upheld.

In respect of the first two complaints, the ASA found that the virtual figures were surreal and ambiguous. Nothing in their movement indicated sexual activity and would be interpreted by the viewer as representing the product as being a mixer drink. The ASA concluded that the figures were representative of the fusion of liquid, as was also represented by the phrase "made to mix" in the context of mixing Bacardi with cranberry juice. The ad therefore was not an indication that confidence or popularity could be enhanced by alcohol.

The ASA concluded that the ad was unlikely to have strong appeal to people under the age of 18. The bass beat track had been specifically chosen because it appealed to an over 30 audience. Additionally, the virtual figures were computer generated and surreal. They were not identifiable figures and were not likely to be seen as aspirational characters for viewers under the age of 18.

A recent report out by the ASA shows that 97% of all alcohol ads complied with the new rules suggesting that the vast majority of advertisers are complying with the self regulatory scheme. If this level of compliance continues, alcohol brand owners may be able to avoid legislative requirements for alcohol advertising being implemented.

GAMING

5. Littlewoods Gaming, 2 July 2008

An internet banner ad, for a gambling website, featured a cartoon image of Spiderman and stated "The Amazing Spiderman 25 Line Jackpot Slot £50...ALL THIS AT onlinegamblingweb.com".

Complaint/Decision

The complainant challenged whether the ad was irresponsible because it was likely to appeal to children.

The complaint was upheld. The CAP Code provides that marketing communications for gambling should be socially responsible and should not be likely to be of particular appear to children or young persons, especially be reflecting or being associated with youth culture. Spiderman appeals to some adults but the popular comic book character was likely to have particular appeal to children and young people. The ad therefore breached the CAP Code.

This is perhaps an obvious example of a character with appeal to children. Other characters may be more difficult to determine. It can be contrasted with the next decision below for Foxy Bingo.

6. Cashcade Ltd t/a Foxy Bingo, 23 July 2008

A TV ad for online bingo featured an actor dressed as a fox wearing a suit. The fox was shown strutting down a street and as he walked past various shops, including a bakery, a tea shop and a laundrette, women were shown leaving the shops to follow him. The fox then boarded a double decker bus with the women. The bus destination was "Having fun!" and it stopped at a house where there was a party. As the fox and women got off and joined the party, a voice-over stated "C'mon join the Party at Foxy Bingo.com and get £10 free".

Complaint/Decision

The complainant challenged whether the fox character was likely to appeal to children.

The complaint was not upheld. The ASA considered that the fox had been designed to appeal to women over 35 and the scheduling restriction meant that the ad was not shown adjacent to children's programmes. The fox had been designed to represent an adult figure, it wore dated rather than trendy clothes and it was adult rather than cute or youthful in its appearance. The overall context, including the soundtrack and that women were shown following the fox, meant that the ad was unlikely to appeal to children.

This ad shows that characters that might otherwise appeal to children can be used in advertising for gambling, provided that the ads are specifically and exclusively designed to target adults. The scheduling restriction, which would not have been available in relation to an internet banner ad, also influenced the decision not to uphold the complaint.

COMPARATIVE ADVERTISING

7. Orange Personal Communications Services Ltd, 16 July 2008

A national press ad compared the Orange Home Max package with two BT packages. The ad stated "save over £190 when you switch from BT..." It then detailed what was included in the Orange Home Max package and the foot of the ad stated "savings claims of over £190 based on standard cost of Orange Max wireless broadband and phone line package, £24 a month over 18 months (total of £432) and BT's standard publishing pricings as at 04.12.2007 for BT Broadband Option 3 and BT Together Calling Plan Option 2 over 18 months..." The statement continued, detailing the prices of the two BT packages plus line rental.

Complaint/Decision

BT complained that the comparison was misleading because it failed to take into account features that were included in the BT packages but were not included in the Orange Home Max package.

The complaint was upheld. The ASA considered that there were significant differences between the services and that these should be included in the ad to enable the consumers to make a fair comparison. The ASA concluded that the CAP Help Note on Price Claims in Telecommunications Marketing advised that comparison ads should be against the competitor's most comparable service and should state clearly the services that form the basis of comparison. The ad should also state the differences between the services that were likely to influence the consumers' evaluation of that comparison.

This adjudication highlights the need to take care when making comparisons between different packages which will apply across a number of different industries.

8. Superdrug Stores plc, 23 July 2008


Two national press ads for Superdrug compared Superdrug prices to those of Boots. The ads stated: "we compared the prices of 1,048 everyday health and beauty products...960 cheaper at Superdrug 84 the same price 4 cheaper at Boots..." Small print at the bottom stated the stores that were compared and that the comparison took place between 7 – 9 January 2008.

Complaint/Decision

Following a price comparison of its own, Boots UK Ltd challenged whether:

(i) "960 cheaper at Superdrug 84 the same price 4 cheaper at Boots" could be substantiated.

(ii) the products compared were "everyday health and beauty products".

(iii) the comparison was based on the most up-to-date data.

All the complaints were upheld.

In relation to the first complaint, the ASA noted that Superdrug had no documentary evidence of having purchased the product at the claimed prices and therefore the ASA found that Superdrug were unable to verify the prices on which the comparison was made.

Superdrug argued that they had based "everyday health and beauty products" on a core group of some of the best selling products which they believed were widely available in health and beauty retailers. However, the ASA considered that readers were likely to understand the claim as meaning that the compared products all related to health and beauty and were likely to be bought on a regular basis. Therefore, products such as food lines, film and battery products and magazines were not "health and beauty products". Electrical beauty products and fragrances were not "everyday" products. Superdrug had provided no other basis for substantiating the claim and therefore the comparison was likely to mislead.

In respect of the third complaint, the ASA noted that prices in the retail sector change regularly, often from week to week. The ASA therefore concluded that the 3 and 4 week gaps between the prices being checked and the ads appearing meant that the ad was misleading and was not based on the most up-to-date data. It is clear therefore that the industry will be relevant when considering the age of the data. Comparative ads of this type should always ensure that the substantiation corresponds accurately with claims made. They are particularly likely to be challenged by competitors due to the fact that they name a specific competitor and that competitor can readily verify the accuracy of the claims made.

9. Scottish and Southern Energy plc, 30 July 2008

TV, press and radio ads for Southern Electric contained slight variations of the statement "on average, Southern Electric offers the cheapest dual fuel prices in the UK". In the press ad, the headline was "cheapest AVERAGE DUAL FUEL PRICES IN THE UK". The ad contained a footnote which stated "when comparing Southern Electric's standard dual fuel credit tariff compared to all other major suppliers standard dual fuel credit tariffs averaged across the UK".

Complaint/Decision

Two challenges were made. British Gas and two members of the public challenged whether the claim that "on average, Southern Electric offers the cheapest dual fuel prices in the UK" was misleading because it implied that Southern Electric were cheapest in all regions, rather than cheapest when all regions were added together and averaged out. British Gas also challenged whether the footnote in the press ad was a significant condition and should have been included in the body of the ad.

The ASA upheld both complaints.

The ASA found that although Southern Electric offered the cheapest standard dual fuel credit tariff when all regions across the UK were added together and averaged out, they were not the cheapest in each region. The ASA considered that consumers might not be aware that energy prices vary from region to region and would therefore understand Southern Electric's claim as meaning that Southern Electric were cheapest for them. The ads were therefore misleading.

In respect of the footnote in the press ad, the ASA considered that the headline "cheapest AVERAGE DUAL FUEL PRICES IN THE UK" implied that the comparison would include all dual fuel tariffs. As specified in the footnote, the comparison applied to standard credit tariffs only. The ASA concluded that this was a significant qualification and it should therefore have been included in the body of the ad.

This adjudication is similar to the Orange adjudication above, in that it shows the ASA's requirement that ads must include all significant terms that may influence the decision of the consumer.

OTHER

10. Ofcom decision, 7 July 2008 - GMTV Weather

A credit for the sponsor contained the claim "helping you get the three servings of wholegrain you need everyday". Ofcom considered Rule 9.13 of the Broadcasting Code. This requires sponsorship to be distinct from advertising.

Ofcom has published specific guidance on this rule which states"Specific or detailed descriptions of a sponsor's business or products are likely to be viewed as promotional and are therefore unacceptable. Brief statements (straplines etc) may be acceptable in credits but claims that are capable of objective substantiation, particularly those that are comparative, may breach this rule."

Decision

The purpose of sponsorship is to inform the audience that a programme is sponsored and identify the sponsor. There are strict rules on the amount of advertising broadcasters are permitted to air and, importantly, sponsorship credits do not count towards the broadcasters advertising time allowance. Broadcasters are therefore required to ensure that sponsorship credits do not include advertising messages.

Ofcom considered that the claim "helping you get the three servings of wholegrain you need everyday" was a specific promotional claim about the sponsor's products and that it was clearly intended to advertise the sponsor's products. As such the sponsorship credit was deemed to be unacceptable.

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 07/08/2008.

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