UK: ASA Adjudications Snapshot - October 2008

Last Updated: 25 November 2008
Article by Susan Barty and Susie Carr

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

This month the ASA drew attention to implied claims made in food adverts and the risk that beer or biscuit ads might appeal to children, and examined the wording of and detail contained in online ads.

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Full Article

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

This month the ASA drew attention to implied claims made in food adverts and the risk that beer or biscuit ads might appeal to children, and examined the wording of and detail contained in online ads.

FOOD AND DRINK

1. Young's Seafood Ltd, 1 October 2008 (implication that product was low in saturated fat)

2. Northern Foods Grocery Group Ltd t/a Fox's Biscuits Ltd, 8 October 2008 (use of animation and appeal to children)

3. This Water Ltd, 15 October 2008 (claims to be "simple")

ALCOHOL

4. Coors Brewers Ltd, 15 October 2008 ('ragga' song juvenile but not racist)

GREEN CLAIMS

5. Eco Windows, 1 October 2008 ("ecological" claims and use of 'eco' imagery)

6. Lexus (GB) Ltd, 8 October 2008 (vague green claims)

COMPARATIVE ADVERTISING

7. Npower Ltd, 8 October 2008 (unclear basis for "best buy" claim)

8. British Telecommunications plc t/a BT, 29 October 2008 (substantiation of comparison)

9. John Lewis Partnership plc, 22 October 2008 (substantiation and key terms)

10. Vodafone Ltd, 29 October 2008 (superlative claims)

GAMING & PRIZE DRAWS

11. Partouche Betting Ltd t/a partouche-betting.com, 8 October 2008 (gambling presented as a solution to problems)

FOOD AND DRINK

1. Young's Seafood Ltd, 1 October 2008

A TV ad for battered fish fillets stated that: "they're better for you because they're now less than 5% saturated fat." Small text, appearing briefly, stated: "Reduced by 40% vs 2006". The voiceover also said: "And they're better for you because they're a natural source of Omega-3". The voiceover and text repeated the claim that the fillets were "now better for you".

Complaint/decision

Birds Eye challenged whether the ad was misleading because it implied the fillets were low in saturated fat and exaggerated their nutritional benefits. The ASA upheld these challenges.

The ASA considered that the "overriding impression" given by the ad was that the fillets were low in saturated fat, not just lower in saturated fat than they had previously been. The text "Reduced by 40% vs 2006" was not prominent enough to offset this impression. The fillets did not meet the criteria for a product that was "low in saturated fat" set out in the EU Regulation on nutrition and health claims (Regulation 1924/2006).

The ad implied there was a health benefit because of the Omega-3 in the fish. However, the ASA pointed out that Food Standards Agency guidance said that Omega-3's benefits were usually felt if it was used as a substitute for saturated fats. As the products were rated 'medium' for saturated fat, this would mitigate the health benefit of Omega-3.

This adjudication underlines the impact of the EU Regulation on nutrition and health claims in advertising and the strict line that is likely to be taken in terms of identifying the nutritional benefits of food and drink products.

2. Northern Foods Grocery Group Ltd t/a Fox's Biscuits Ltd, 8 October 2008

Fox's Biscuits chose an animated panda to promote their Viennese Melts in a TV ad. The ad mimicked the film Lost in Translation, showing the panda in a leather chair drinking milk from a whisky glass. Speaking with what the advertising company described as a 'New Jersey gangster' accent, he said: "I've got to a stage in my career... when I can afford to enjoy the finer things in life. Handmade shoes from Italy. Furniture from France. And from England – Fox's biscwuits." He bit into a biscuit and added: "Go to your supermarket and say Vinnie sent you for the good stuff".

Complaint/Decision

The complainants said:

1. The use of the panda targeted children and therefore breached the rules on advertising high fat, salt or sugar (HFSS) foods.

2. The ad targeted children and encouraged children to pester their parents to buy the product.

3. The phrase "the good stuff" could be a nutritional claim, which is not allowed in HFSS product adverts targeted directly at pre-school or primary school children.

None of the complaints were upheld. The ASA found that, in context, the ad did not directly target children, and noted that it was scheduled to avoid children's programmes or those likely to appeal to under-15s. This shows that use of animal characters will not necessarily be deemed to be directed at children.

The ASA also considered the panda's words were unlikely to encourage children to pester adults to buy the biscuits and the ASA found the reference to the "good stuff", in the context of the rest of the ad, would be seen as a reference to the biscuits' quality, rather than health benefits.

3. This Water Ltd, 15 October 2008

This Water released three posters for its fruit drinks. Each poster showed two arrows pointing at a picture of the bottle, accompanied by the text: "water from a spring" and "fruit from the trees". Underneath the picture, text read: "Simple, natural refreshment". The product labels carried messages relating to the flavour, such as: "This Water is made from fruit and clouds. Lemons, limes & spring water".

Complaint/decision

One person complained that the ads implied the products contained only fruit and water, and as they contained added sugar, this made them misleading.

The ASA upheld the complaint, rejecting This Water's argument that the ads were only meant to highlight the fact that water and fruit were the key ingredients of the drink. It thought that the text and arrows implied the drinks were "simple" because they contained only fruit and water, whereas in fact they were at least 8% refined added sugar. The fact that a full list of ingredients was found on the product labels and website failed to counter the impression given by the ad. This strict approach is consistent with early decisions regarding adverts which imply that foods contain only a limited number of pure ingredients.

ALCOHOL

4.Coors Brewers Ltd, 15 October 2008

Coors released a TV ad for Coors Light lager, which featured two white men performing a 'ragga' song about the beer. The ad style was influenced by comedy acts such as Flight of the Conchords and The Mighty Boosh. The song lyrics, delivered in Jamaican accents, included: "Hear me now! You taste so light just like an eagle wing, up high in the Rockies gonna do ma ting. You taste so light just like the arctic air, ice cold from the land of the grizzly bear... so if you need a taste that will delight, Coors Light taste light just like a pillow fight." The film featured shots of a fake moose and the actors' dancing featured bear impressions and martial arts-style moves. The song concluded with a woman hitting them both with a pillow.

Complaint/decision

One viewer complained that the actors' accents and dance moves were racist. The ASA rejected this. It found that the men were portrayed as ridiculous, but the humour was not derived from race and was "unlikely to be seen as humiliating, stigmatising or undermining the standing of people from any ethnic group".

The ASA upheld its own challenge that the ad was likely to appeal strongly to under-18s. It considered that the ad's juvenile humour and wacky the characters would appeal strongly to young people.

This adjudication highlights one of the difficult issues with advertising of alcohol – that of appeal to the under 18s and identifying themes associated with youth culture, particularly when using humour, where it is more likely that wacky or zany humour is always going to be more likely to appeal to young people.

GREEN CLAIMS

5. Eco Windows, 1 October 2008

A press ad for UPVC windows was titled: "eco windows – economical on price – ecological on design". The "e" of the word "eco" was in the shape of a tree.

Complaint/decision

One person challenged the ad, saying he believed that the manufacture and disposal of UPVC windows had a negative impact on the environment, so it was misleading to claim to be "ecological on design".

The ASA upheld this challenge. It considered that readers were likely to infer the whole life cycle of the product was "considered to have beneficial, or at least neutral, impact on the environment".

The manufacturer believed it would be increasingly possible in the future that UPVC would be manufactured from organic matter rather than fossil fuels, and said UPVC had the potential to be recycled four times. It added that fewer trees would be chopped down if UPVC windows and doors were used.

The manufacturer also claimed that sustainability of a material should be assessed in terms of social and economic benefits as well as environmental impact, pointing out that the UPVC industry represented 2.1% of the UK's GDP and contributed substantially to the UK's social and economic success.

The arguments were not persuasive. The ASA stated: "opinions [are] divided on whether the manufacture, use and disposal or recyclability of UPVC could be seen as sustainable in terms of environmental impact," and found the ad to be misleading. This is not surprising given the ASA's general approach regarding vague green claims.

6. Lexus (GB) Ltd, 8 October 2008

A poster and press advert for a Lexus hybrid car were headlined: "PUT YOUR CARBON FOOT DOWN," and featured a picture of the car, wheels moving, against a blurred background. The press ad stated: "The Lexus RX400h is a luxury car with a conscience. A luxury car that's better for the environment but without the compromise..."

Complaint/decision

Some complainants said the poster misleadingly implied the vehicle had a low carbon emissions rating and the press ad misleadingly suggested the car was better for the environment than it was.

In addition, two complainants and the ASA complained that the ad encouraged or condoned speeding.

The ASA considered that most consumers would understand the headline to mean the car had low emissions compared to all other cars, not just those in the same class. The claim it was "better for the environment" emphasised this, as it did not say which other cars it was "better" than. This is in contrast to previous adjudications where the claims were considered to have been too broad and not sufficiently clearly limited to the class of car.

Conversely, other people complained the poster was irresponsible for suggesting people should ignore concerns about carbon emissions, but this was not upheld.

In a reminder of the pitfalls surrounding the depiction of cars in advertising, the ASA also upheld the complaint that the ads encouraged speeding. It said the image and phrase "put your... foot down" led the ads to portray "speed in a way that might encourage motorists to drive irresponsibly".

COMPARATIVE ADVERTISING

7. Npower Ltd, 8 October 2008

A national press ad carried the headline: "Best buy energy deals. Choose the npower offer to suit you." The ad listed six different offers below.

Complaint/decision

EDF Energy challenged whether the claim "best buy energy deals" could be substantiated or was misleading, on the basis that they believed they offered several better value deals themselves.

Npower said its "best buy" claim was not comparative against any other energy suppliers, but was meant to refer to the range of deals npower offered. However, the ASA found this was not clear, and said consumers were likely to understand the claim to be a comparison to other energy suppliers. Given the competitiveness of the industry and concern that consumers can be confused by the various tariffs available, the decision was not surprising. It also highlights the difficulty in making "superlative" claims in advertising.

8. British Telecommunications plc t/a BT, 29 October 2008

BT ran two online banner ads comparing its services with Sky. The first read: "Sky Talk calls are up to six times more expensive than BT. In fact, BT calls to 0845 and 0870 numbers are cheaper than Sky, Virgin and Tiscali." The second read: "BT's Unlimited Anytime offer is actually cheaper [than Sky]".

Complaint/decision

Sky (British Sky Broadcasting) complained the first ad was misleading because it implied many or all Sky Talk calls cost more than BT, whereas it believed only the 0845 and 0870 numbers had significantly more expensive rates per minute. It complained the second ad was unclear about the basis of the comparison and failed to include the differences between the services compared.

The ASA upheld both complaints. On the facts, nearly 80% of calls made with Sky were the same price or cheaper than with BT, and this was not the impression given by the first ad. With regards to the second ad, the ASA reminded advertisers that they should clearly name the services they were comparing and significant differences between them. For banner ads, such differences must appear prominently on a website no more than one click-through away.

9. John Lewis Partnership plc, 22 October 2008

John Lewis ran a national advert in the press for digital cameras. One of the cameras shown was a Nikon D60 at the price of $459. Text below the picture of this and other cameras read: "Naturally, all our shops are "Never Knowingly Undersold" (see leaflet in store for details)". The relevant leaflet made the following statement: "We constantly check prices in local shops and if we find the same item cheaper, we lower our price to match, even during Sales".

Complaint/decision

DSG Retail Ltd made three complaints, the most interesting being that the ad failed to include details of what conditions applied to the "Never Knowingly Undersold" claim, and so was misleading.

The ASA upheld this complaint because the "Never Knowingly Undersold" policy did not apply to competitors online or those selling through catalogues, which was a significant condition not included in the advert.

This is interesting as it serves as a caution to ensure that phrases used in ads should always be substantiated, even if they are phrases commonly known to identify the advertiser.

10. Vodafone Ltd, 29 October 2008

Vodafone ran two press ads for a mobile broadband service. Both were headed: "The fastest, most reliable mobile broadband in the galaxy. Only £15 a month". An image depicted a USB stick as a space rocket and further text said customers would: "get download speeds of up to 7.2Mbps on your laptop, which is as quick as most home broadband... mobile broadband that's light years ahead..."

Complaint/decision

This ad generated several complaints from some of Vodafone's competitors, as well as a member of the public.

The challenges were:

  1. whether Vodafone could substantiate the claims,"most reliable" and "fastest" mobile broadband; and
  2. whether the claim "light years ahead" misleadingly implied that Vodafone's mobile broadband was significantly better than its competitors.

The ASA upheld the complaints. The ASA found the basis of the "most reliable" claim was not explained, and customers might understand this to mean a variety of things. With regards to speed, Vodafone had based its claims on the nationwide averages of a UK-wide trial, but the ASA noted the trial results showed that in six out of 10 regions, Vodafone was downloaded web pages more slowly than other networks. The trial also showed another provider also offered a service up to 7.2Mbps.

The ASA examined the claim, "light years ahead" in the context of the whole ad. This was a claim to superiority, and as the other claims related to the service's speed and reliability, the ASA said readers would take the claim to mean Vodafone's service was superior in these areas, which it had not shown. This demonstrates the strict approach taken in comparative ads, particularly those making "superlative" claims.

GAMING & PRIZE DRAWS

11. Partouche Betting Ltd t/a partouche-betting.com, 8 October 2008

Two internet banner ads which appeared during the Euro 2008 football championships featured an image of a flag and text stating, "BET TO FORGET" and "CLICK OR REGRET". The second ad also had a picture of footballer Eric Cantona dressed as King Arthur.

Complaint/decision

The complainant said the ads irresponsibly exploited vulnerable people by suggesting gambling could be an escape from personal problems. The ASA challenged whether "CLICK OR REGRET" indicated that gambling was indispensable.

Partouche explained its campaign was meant to light-heartedly encourage English people to bet on Euro 2008 despite the fact England had failed to qualify for the final phase. They had ignored the CAP Copy Advice team's advice not to use the claim "BET TO FORGET" because they believed that vulnerable people would be able to distinguish between their joke about England and Euro 2008 and the ironic suggestion that betting could provide a solution to problems.

However, the ASA considered that the ads did not sufficiently explain the link between their message and the Euro 2008. The claim "BET TO FORGET" was therefore likely to be interpreted as suggesting gambling was an escape from personal problems – particularly for vulnerable people.

As regards the phrase, "CLICK OR REGRET", the ASA looked at the ad in context, and found it implied that consumers would regret it if they did not click through to the website and place a bet. It therefore suggested that gambling was indispensable.

This decision demonstrates the strict rules that are rigorously enforced in relation to gambling ads, following implementation of the Gambling Act 2005.

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 24/11/2008.

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