UK: ASA Adjudications Snapshot - April 2009

Last Updated: 20 May 2009
Article by Susan Barty and Susie Carr

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

In a busy month, the ASA ruled on complaints concerning green claims for cars, a fair basis for comparisons including top parity and absolute claims, the role played (and not played) by small print, free services, alcohol, "impossible exaggerations" and the problems with celebrity endorsements.

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Full Article

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

In a busy month, the ASA ruled on complaints concerning green claims for cars, a fair basis for comparisons including top parity and absolute claims, the role played (and not played) by small print, free services, alcohol, "impossible exaggerations" and the problems with celebrity endorsements.

GREEN CLAIMS

1. Volkswagen Group UK Ltd t/a Seat UK Ltd, 22 April 2009 (green claims)

FOOD AND DRINK

2. POM Wonderful LLC, 8 April 2009 (impossible exaggeration)

HEALTH AND BEAUTY

3. Pfizer Ltd, 22 April 2009 (justifiability of offensive ads)

COMMUNICATIONS

4. The Number UK Ltd t/a 118 118, 8 April 2009 ("free" services)

ALCOHOL

5. Wells and Youngs Brewing Company Ltd t/a Courage, 15 April 2009 (alcohol linked to increasing confidence, brand names)

SMALL PRINT

6. Tesco Stores Ltd, 8 April 2009 (small print)

7. Virgin Media Ltd, 22 April 2009 (small print and "unlimited" claims)

COMPARATIVE ADVERTISING

8. Virgin Media Ltd, 8 April 2009 (fair comparisons)

9. British Telecommunications plc, 15 April 2009 (top parity claims)

10. eBay International AG, 22 April 2009 (fair comparisons and absolute claims)

11. Wm Morrison Supermarkets plc t/a Morrisons, 29 April 2009 (misleading comparative claims)

OTHER

12. Volkswagen Group UK Ltd, 1 April 2009 (violent ads)

13. CC Automotive Group Ltd t/a Carcraft, 8 April 2009 (linking terms and conditions to main ad)

14. Paddocks Farm Partnership Ltd, 22 April 2009 (product name misleading as to product efficacy)

15. AXA UK plc t/a Swiftcover.com, 29 April 2009 (celebrity endorsements)

16. Somerfield Stores Ltd, 29 April (genuine promotion)

GREEN CLAIMS

1. Volkswagen Group UK Ltd t/a Seat UK, 22 April 2009

A magazine ad for the Seat Ecomotive range of vehicles showed photos of the Seat Ibiza, Alhambra and Leon ecomotive models surrounded by a green ivy motif. The text under the photograph stated that the cars could be found in the "goody-two-shoes" department and that they made "sense ecologically".

Complaint/decision

The complainant objected that the ad misleadingly implied that the Seat Alhambra was more environmentally friendly than it was.

Despite the fact that the Seat Alhambra's CO2 emissions data were clearly displayed under the photo of the vehicle, as well as a footnote in the ad, the ASA upheld the challenge. Volkswagen claimed that it had intended to compare the omissions performance of its Seat Ecomotive range with its Seat standard range but the ASA believed that this basis of comparison was insufficiently clear. The ASA acknowledged that the Alhambra Ecomotive had lower emissions than average for 7-seat MPVs. However, the context of the ad as a whole was considered to imply more than this. The claims that the Ecomotive range made "sense ecologically" and was in the "goody-two-shoes" department, in conjunction with the green ivy motif, was likely to mislead as to the relative environmental performance of the Alhambra Ecomotive.

This adjudication follows a similar approach to that used by the ASA previously, such as in October 2008 [link to Law-Now article from Oct 2008] and demonstrates that the ASA will closely scrutinise the accuracy of environmental claims. Even non-specific claims such as "in the goody-two-shoes department", and non-verbal motifs can cause an ad to fall foul of the rules if the overall context has misleading implications.

FOOD AND DRINK

2. POM Wonderful LLC, 8 April 2009

A poster for POM Wonderful showed a bottle of the product with a severed noose around its neck. Text stated, "Cheat death. The antioxidant power of pomegranate juice".

Complaint/decision

The complainant challenged whether the ad misleadingly exaggerated the health benefits of the product.

The ASA upheld the challenge. The advertiser had responded that it had been using a well-known technique of making claims so exaggerated that consumers would not take them seriously and would therefore be unlikely to mislead. The ASA noted that the claim "cheat death" was an obvious untruth but was concerned that it might suggest that the product contributed to a longer life when followed by "the antioxidant power of pomegranate juice". The ASA believed that the evidence submitted by the advertiser could not substantiate such a health claim as it failed to establish that consuming the product could lead to a longer life.

The ASA appeared to accept the "impossible exaggeration" as a legitimate advertising technique but not where there is an alternative interpretation of a claim that might be misleading.

HEALTH AND BEAUTY

3. Pfizer Ltd., 22 April 2009

A cinema ad about the dangers of purchasing prescription-only medicines over the internet showed a man swallowing a tablet. Shortly afterwards, he reached into his mouth and pulled out a tail, appearing to gag as a dead rat gradually emerged from his mouth. The voiceover stated, "rat poison. Just one of the dangerous ingredients that may be found in fake medicines purchased from illegal websites."

Complaint/decision

The ASA received 64 complaints and the ad attracted a lot of press attention. Most of the complainants objected that the ad was unduly distressing. Some found the ad offensive. Some also objected that the ad was misleading, because they understood that some legally prescribed medicines also contained dangerous ingredients such as rat poison and the ad might therefore cause particular distress to people who took such legally prescribed medicines.

The ASA rejected all the challenges made. It concluded that the ad did not cause fear and distress without good reason, as it was intended to raise awareness of a serious issue and was designed to be hard-hitting so as to achieve the desired impact. The restriction to 15 or 18 rated films was considered sufficient to minimise the number of younger people who saw the ad.

The ASA also rejected the challenge that the ad was misleading, as viewers were unlikely to infer that only medicines bought from unregulated sources contained potentially dangerous ingredients. Those individuals who took legally prescribed medicines containing dangerous ingredients were likely to be aware of the associated dangers and therefore unlikely to be unduly distressed by the ad.

This adjudication demonstrates that the ASA will have fair regard to the justifiability of potentially shocking advertising tactics, even where high numbers of complaints have been made. This follows the stance taken with previous government and charity campaigns in which similar complaints were made and not upheld.

COMMUNICATIONS

4. The Number UK Ltd t/a 118 118, 8 April 2009

A TV ad for 118 118 offered a question-answering service: "Text 118 118 once and we will answer all your questions for the rest of the day for free". On-screen text stated, "Texting costs a standard network charge. First responses cost 60p. All subsequent responses that day are free".

Complaint/decision

The complainant challenged whether the reference to network charges was sufficiently prominent. The ASA also challenged whether the use of the word "free" was contradicted by the qualifying text, which stated that consumers would be charged 60p for the first response.

The ASA rejected the first challenge. The on-screen text stating "Texting costs as standard network charge" was held throughout the ad and appeared as the final image and was therefore sufficiently prominent to avoid being overlooked by most viewers.

However, the ASA upheld its own challenge. The claim that viewers could ask questions for free was justified because they only paid a standard network rate for accessing the service. However, 118 118 charged 60p for the first text answer, meaning that although the subsequent answers they supplied were offered at no extra charge, the answering service was not "free". This adjudication reminds advertisers to take extra care when making claims for "free" services.

ALCOHOL

5. Wells and Youngs Brewing Company Ltd t/a Courage, 15 April 2009

A poster for Courage beer showed a nervous-looking man sitting on a sofa with a beer. A woman was standing with her back to him wearing a tight dress with its label still attached. The ad's text stated, "take courage my friend".

Complaint/decision

The complainants challenged whether the poster implied that the beer would give the man confidence either to make negative comments on the woman's appearance or to take advantage of her.

The ASA upheld the challenge. The combination of the text and the image of the man was likely to be understood by consumers to imply that the beer would give the man sufficient confidence to tell the woman that the dress was unflattering. The ASA rejected the complainant's claim that the man might make negative comments or take advantage of the woman, but believed that he would simply be candid. The ASA considered that the ad was intended to be humorous but the suggestion that the beer could increase confidence was in breach of the Code.

This adjudication serves as a reminder that the ASA will enforce the alcohol rules strictly. The fact that Wells and Youngs had hitherto used the slogan "Take Courage", a play on the brand name, with impunity for 50 years illustrates this shift. The fact it is a brand name will not give immunity.

SMALL PRINT

6. Tesco Stores Ltd, 8 April 2009

A poster advertising a docking station showed an iPod in a docking station. Small print at the bottom of the poster stated "iPod not included".

Complaint/decision

The complainant challenged the poster as misleading because it implied that the iPod was included in the advertised price.

The ASA upheld the challenge as the poster did not explain adequately what was included in the promotion. The small print was not sufficiently prominent to ensure it was not overlooked and contradicted the impression given by the picture that the iPod was part of the advertised offer.

This adjudication affirms the principle that advertisers must clearly state what is included in the promotion and may not rely on small print if the small print is contrary to the images included in the ad, which tend to be most prominent.

7. Virgin Media, 22 April 2009

Direct mailing from Virgin Media stated "unlimited downloads...come as standard".

Complaint/decision

A complainant challenged whether this claim was sufficiently qualified, as it was not made clear that Virgin Media imposed a speed-capping restriction between 4.00pm and 9.00pm each day.

The ASA upheld the challenge. It was noted that Virgin Media did not restrict the amount of content that users could download, even though users' speeds would be affected once a maximum threshold value had been reached, and therefore the "unlimited" claim was acceptable. However, the ASA considered that it was not appropriately qualified because the small print attached to the mailing was lengthy. Moreover, the disclaimer "acceptable use policy applies" was not immediately noticeable, despite being a significant caveat to the "unlimited" advertising claim. The ASA concluded that the mailing should have included a link to the relevant area of the small print.

This adjudication shows that key qualifications should not be hidden in the small print and advertisers should take steps to clearly link the specific claims to the relevant small print.

COMPARATIVE ADVERTISING

8. Virgin Media Ltd, 8 April 2009

A national press ad for Virgin Media stated, "Only 3 out of 10 homes in the UK can get 8MB or more over BT phone lines. 10 out of 10 homes with our fibre optic broadband can get 20MB".

Complaint/decision

British Sky Broadcasting challenged whether the claim "10 out of 10 homes with our fibre optic broadcast can get 20MB" was misleading because they did not believe that there was sufficient capacity in Virgin's network to provide all customers with 20MB at the same time. The ASA also challenged whether the comparison made in the ad was misleading and unfair.

The ASA upheld Sky's challenge. Virgin had not provided evidence that all Virgin customers could achieve the headline speed in the home. Customers were considered likely to understand the claim to refer to the actual speed achieved rather than the potential speed. Although the footnoted text stated that the actual speed was affected by user volume as well as the speed and capacity of users' computers, this text contradicted rather than qualified the strong implication of the headline claim.

The ASA also upheld its own challenge. The ASA had not received independent evidence that all homes with Virgin's 20MB service would actually achieve access line speeds of 20MB. It was therefore not appropriate to compare the actual access line speeds of BT lines with the theoretical access line speeds of the Virgin broadband, as consumers were likely to understand the claim to refer to actual speeds. The ASA concluded that the comparison made in the ad was therefore unfair and misleading.

This adjudication served as a reminder that footnoted text must not contradict a headline claim and comparisons must be on a fair basis using equal criteria.

9. British Telecommunications plc, 15 April 2009

A national press ad for BT stated "unbeatable wireless connection compared to other UK broadband providers" and "no other UK broadband gives you a better wireless connection than BT total broadband".

Complaint/decision

Virgin Media Limited challenged whether these claims were misleading and could be substantiated.

The ASA rejected the challenge. They considered that BT's claims were top parity claims implying that BT offered a wireless connection at least as good as other UK broadband providers and BT could substantiate those claims.

This adjudication reminds advertisers that top parity claims are easier to prove than number one claims and, if carefully worded, can still have significant impact.

10. eBay International AG, 22 April 2009

A poster for eBay stated "25% cheaper than the high street on brand new items". The small print at the bottom stated "Source: Frontier Economics, Spring 2008. Figure obtained by comparing the average sold price (including p&p) of 288 new products on eBay.co.uk with the price in mainstream retail stores. In respect of each product, prices were obtained in six different retail stores when the average price was taken."

Complaint/decision

The Complainant challenged whether the claim was likely to mislead because it did not make sufficiently clear the basis of the comparison.

The ASA considered that readers would understand the absolute claim as meaning that eBay was cheaper than all main high street stores for all new items, regardless of the product sector. In fact, as an average had been taken of all the store prices, it was possible that one store could have been regularly cheaper than eBay or regularly much closer in price to eBay. Moreover, the comparison did not include some product sectors that consumers might have expected, a fact that was not made clear. The ASA concluded that there was insufficient evidence to support eBay's absolute claim that it was cheaper than all high street stores for all new products. Although the small print qualified the headline claim, it was of insufficient size to avoid being overlooked and was in contradiction to the main message of the headline.

This is a reminder that the ASA will scrutinise absolute claims. Small print cannot be relied upon if its purpose is to contradict, rather than merely qualify a headline claim.

11. Wm Morrison Supermarkets plc t/a Morrisons, 29 April 2009

A TV ad for Morrisons showed Denise Van Outen saying, "I want it freshly picked, straight from the farmer, and I want the same people to look after it, every step of the way." She continued, "...from selecting it, to packing it, to delivering it. Just as fresh as you can, as fast as you can." The ad showed shots of carrots, broccoli and apples and a voice-over said, "Only one major supermarket sources and packs fruit and vegetables straight from British farms."

A second ad stated, "Only one major supermarket sells 100% British fresh beef, lamb and pork."

Complaint/decision

The ASA received a number of complaints from The Co-operative Group ("Co-op"), Asda, Waitrose and a member of the public.

There were several challenges, possibly the most interesting being (i) whether Morrisons could substantiate its claim to be the only supermarket to source and pack its fruit and vegetables from British farms and (ii) whether Morrisons could substantiate that it was the only large supermarket to sell British beef, lamb and pork.

The ASA upheld the first challenge. Morrisons had counted only themselves, Tesco, Asda and Sainsburys as "major supermarkets" on the basis that they held the top four places and carried over 10% each of the UK market share. Therefore, other supermarkets have been excluded on those grounds. However, the ASA considered that viewers might not be aware to which supermarkets the claim "major" applied. The ad should have clarified that the comparison included only Tesco, Asda and Sainsburys.

However, the ASA rejected the second challenge. Viewers were considered likely to understand that Morrisons sold 100% British meat, whilst other large supermarkets sold both British and foreign produce, and that this was substantiated. The ASA reiterated that the "major" claim should have been qualified but otherwise they ad was unlikely to mislead.

A further challenge related to whether the first ad misleadingly implied all British fruit and vegetables sold by Morrisons was sourced, packed and delivered from the farm to the store directly by the farmer. Although this was not stated explicitly, the ASA upheld the complaint, as it considered that viewers were likely to infer that all of the British fruit and vegetable produce on offer at Morrisons was supplied directly from the farm to the store. As that was not the case, the ad was considered misleading.

This adjudication demonstrates the ASA adopting a common-sense approach regarding what viewers are likely to infer from implied claims in ads. It is also a reminder that advertisers should make the scope of any comparison clear.

OTHER

12. Volkswagen Group UK Ltd, 1 April 2009

Five ads were broadcast for the Volkswagen Golf.

A TV ad featured the chief engineer of Volkswagen combating his own doppelgangers in fight sequences using martial art techniques, kicks and punches and car parts as weapons. The final scene showed that the engineer had defeated all the other versions of himself. A voiceover stated, "Sometimes the only one you have to beat is yourself ... the new Golf". This ad was also shown in cinemas.

The other TV ads were edited versions of the first ad, containing the majority of the same elements.

The ASA received an unusually high number of complaints (1,066) in relation to the ads.

Complaint/decision

Viewers challenged whether ads were offensive and unsuitable to be shown at times when children might be watching, and also whether they might encourage harmful emulation amongst children.

The ASA found that although the fight sequences were stylised, fantastical and did not show any physical suffering, the fight moves were realistic and the ASA considered that the violence could cause serious offence and distress and upheld the complaints in this respect.

In the ads where the weapons sequence was not shown, the ASA considered the level of inter-personal violence to be lower and therefore the scheduling and ex-kids restrictions were sufficient to prevent serious or widespread offence, so did not uphold the complaint in relation to these ads.

In relation to the suitability of the cinema ad, the ASA deferred to the judgment of the Cinema Advertising Association and the British Board of Film Classification, which had both approved the ad to be shown before 12A-rated films. Young children were consequently unlikely to see the ad and those under the age of 12 would have an adult present to explain it if necessary. Therefore, the ASA concluded that the cinema ad was unlikely to cause serious or widespread offence.

As regards potential emulation, the ASA found that the ads had not been designed to appeal to children and represented individual struggle as opposed to condoning violence. Moreover, the ordinary-looking characters and the unglamorous factory setting might have mitigated the appeal to children. As such, this complaint was not upheld.

Violence is always an area that attracts a high volume of complaints. Nevertheless, given the sophisticated nature of the imagery, it is perhaps surprising that this ad attracted quite so many complaints. This also shows that the ASA will take particular circumstances into account in relation to similar ads in different contexts, which emphasises the importance of appropriate targeting, particularly for ads that may be considered by some to be offensive.

13. CC Automotive Group Ltd t/a Carcraft, 8 April 2009

A radio ad was broadcast for Carcraft's nearly new cars. Details of the credit terms were stated at the beginning of the ad.

Complaint/decision

A listener challenged the ad as misleading because credit terms are usually stated at the end of an ad, not the beginning, and they believed it was unclear whether those details applied to the current ad or the ad that came before it.

The ASA upheld the challenge. Although the terms of the finance package being advertised were clearly audible, as legally required, the tone of the voiceover for the finance detail section differed substantially from the tone of the voiceover for the remainder of the ad. One was more business like, whilst the other was more light-hearted, and different voices were used. The ASA concluded that listeners were unlikely to realise that the finance details at the beginning were connected to the ad, particularly as no reference was made to Carcraft in the finance details section.

This adjudication highlights that important information such as finance details must be clearly connected to the material to which it relates and need to be addressed in a clear manner.

14. Paddocks Farm Partnership Ltd, 22 April 2009

A magazine ad and ad feature for Verm-X parasite control pellets appeared in a specialist agricultural magazine.

Complaint/decision

A complainant challenged whether the name Verm-X was misleading as the word "verm" was Latin for worm and implied efficacy when combined with "X".

The ASA rejected the challenge. Although there was one other wormer on the market with the word "verm" in the product name, the ASA concluded that most readers were unlikely to be aware of the Latin derivation and meaning of the word and consequently it was unlikely to mislead with regard to the product's efficacy.

This adjudication therefore suggests that producers of products using Latin-derived names that make implied claims may not be in breach of the code if consumers are unlikely to be aware of their etymology.

15. AXA UK plc t/a Swiftcover.com, 29 April 2009

A TV ad promoting car insurance featured the rock star, Iggy Pop. The words "car insurance" and "policy" were shown on screen and Iggy said, "I got it Swift-covered. I got insurance on my insurance."

Complaint/decision

Viewers challenged whether it was misleading to suggest that Iggy Pop had insurance with the advertisers, because those who worked in entertainment could not take a car insurance policy with the advertiser, according to the Swiftcover website. The ASA agreed that some viewers might understand from the ad that those in the entertainment business, like Iggy Pop, would be able to get Swiftcover insurance. The advertiser was not helped by the fact that Iggy Pop did not actually have a policy with Swiftcover.

This adjudication serves as a reminder to advertisers to approach celebrity endorsements with caution. If the celebrity in question is unable to buy the product being endorsed, that particular celebrity is unlikely to be an appropriate ambassador for your target customers.

16. Somerfield Stores Ltd, 29 April 2009

A TV ad for Somerfield stated "half price on our pork loin steaks" and on screen text stated, "half price £8.99 now £4.49 per kilogram".

Complaint/decision

A view complained that the ad was misleading because she believed that the pork steaks had never been sold at £8.99.

The ASA considered the BERR Pricing Practices Guide, which states "A price used as a basis for comparison should have been the most recent price available for 28 consecutive days or more" and, "The period of time for which the new (lower) price will be available should not be so long that the comparison becomes misleading". The Guide also specifies that the higher retail price should be genuine, which can be evidenced by a significant quantity being on sale at that price for a sufficient period of time. The ASA rejected the complaint on the basis that the product had been available at the higher price in 375 stores and had not been available, even at another price, at the remaining stores. Although the BERR Guide does not specify the number of stores at which a product should have appeared at the higher price, the ASA was satisfied that the £8.99 price had applied in a significant proportion of Somerfield stores nationwide and therefore consumers would not have been materially disadvantaged.

This adjudication is a useful indication of the evidence that the ASA will consider acceptable when considering whether price promotions are genuine.

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 13/05/2009.

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If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.