UK: ASA Adjudications Snapshot - May 2009

Last Updated: 30 June 2009
Article by Susan Barty and Susie Carr

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

This month, the ASA ruled on complaints concerning issues including green claims, "free" claims and medicinal claims, claims of "purity" of food and drink and the availability of products in a promotion.

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Full Article

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

This month, the ASA ruled on complaints concerning issues including green claims, "free" claims and medicinal claims, claims of "purity" of food and drink and the availability of products in a promotion.

GREEN CLAIMS

1. Indesit Company Ltd t/a Hotpoint, 13 May 2009 (substantiation must be based on realistic use of product)

FOOD AND DRINK

2. Arla Foods Ltd, 13 May 2009 (removal of black spots on a cow with term "purer", not racist)

3. Strix Ltd t/a Aqua Optima, 20 May 2009 (meaning of "pure")

HEALTH AND BEAUTY

4. Duchy Originals Ltd, 6 May 2009 (medicinal claims and herbal remedies)

AVAILABILITY

5. Tesco Stores Ltd, 6 May 2009 (reasonable steps to ensure availability)

"FREE" CLAIMS

6. British Telecommunications Plc t/a BT, 13 May 2009 (reference to 0845 and 0870 numbers as "free")

COMPARATIVE ADVERTISING

7. Gocompare.com Ltd, 13 May 2009 (high standard of substantiation required for competitive industry)

8. Tensar International Ltd, 20 May 2009 (evidence and implied comparisons)

VIRAL MARKETING

9. Metrodome Group Plc, 6 May 2009 (viral email campaign, obtaining explicit consent of recipient)

OTHER

10. The Ski & Outdoor Warehouse Ltd t/a Skiwear4Less, 13 May 2009 (exploitation of a sensitive topic in connection of a sales promotion)

11. HomePride Ltd, 20 May 2009 (obvious humour diffused potential sexism)

GREEN CLAIMS

1. Indesit Company Ltd t/a Hotpoint, 13 May 2009

A national press ad for a fridge stated, "Save up to 50% energy". Footnoted text at the bottom of the ad stated, "Saving based on a reduction in heat gain or cold air lost by opening one fridge door or one freezer door."

Complaint/decision

The complainant challenged whether the claim "Save up to 50%" misleadingly implied that the product could save up to 50% of the total energy used by a fridge freezer, rather than a saving in energy required to restore the internal temperature of a compartment once the door had been opened.

The ASA upheld the challenge. The results of the research provided by Indesit were based on the assumption that the fridge freezer would be empty, which the ASA considered did not represent consumers' ordinary use of the product. Further, the ASA considered that consumers were likely to understand the claim in question to mean that the product used up to 50% less energy in total than comparable models. Although the footnoted text explained the basis of the claim, the ASA considered that the small print contradicted rather than qualified the body copy claim.

This adjudication serves as a reminder to advertisers that the studies forming the substantiation of their claims must be a realistic and likely use of the product and also that, although footnotes can be useful, care must be taken to ensure they do not contradict the headline claim.

FOOD AND DRINK

2. Arla Foods Ltd, 13 May 2009

A TV ad for Cravendale milk showed an animated bull visiting a milk bar and angrily demanding milk. After it had drunk every bottle it was sent down a chute to the "Cravendale Purity Room" where it's black patches were gradually removed and it passed signs that stated, "Pure" and "Purer".

A magazine ad depicted a black and white cow with text stating, "Fresh milk", underneath which was a sieve and a white cow. Text new to the white cow stated, "Only purer".

Complaint/decision

10 viewers complained that the ads could be interpreted as racist and therefore offensive.

Arla Foods argued that the ads promoted a filtration process that removes bacterial impurities. The ASA agreed that viewers were unlikely to interpret the visual metaphor for this process as being racist, particularly due to the cartoon style of the ads. The ASA concluded that the ads were unlikely to cause serious or widespread offence and therefore rejected the challenges.
This highlights that the threshold for the ASA considering that an ad causes "serious or widespread offence" is higher than simply showing that a number of people found the ad offensive.

3. Strix Ltd t/a Aqua Optima, 20 May 2009

A radio ad compared plastic water bottles to a water filter. A voice-over stated that each plastic water bottle "Takes around 450 years to biodegrade" whereas "a single Aqua Optima water filter provides up to 200 litres of bottle-pure water without the bottle".

Complaint/decision

The National Hydration Council made four challenges, two of which related to the purity of Aqua Optima-filtered water. The National Hydration Council challenged whether the claim "A single Aqua Optima water filter provides up to 200 litres of bottle-pure water without the bottle" was misleading, by implying that filtered tap water was of the same purity and quality as bottled water. Secondly, it challenged whether the use of the term "pure" to describe filtered water was a breach of the Food Standards Authority Guidelines, as filtered water contained contaminants such as chlorine.

The ASA rejected the first challenge: Strix provided evidence that filtered water and bottled water had a similar mineral content on average and therefore were comparable to bottled water, the ad was not misleading.

However, the ASA upheld the second challenge. The ASA considered the FSA guidance on the term "pure" in "Criteria for the use of the terms Fresh, Pure, Natural etc. in food labelling" (10 July 2008). It is permitted to describe as "pure" a single ingredient food to which nothing had been added, and the ASA considered that consumers would expect the same. Tap water contained contaminants such as chlorine and therefore to describe filtered water as "pure" was in breach of FSA guidance. This description was therefore held to be misleading.
This adjudication contains some helpful guidance as to what the ASA will accept in terms of claims as to the purity of a food or drink product and that it will often turn to industry guidance on the interpretation of particular phrases (see the ASA Adjudications Snapshot for April on "natural" claims).

HEALTH AND BEAUTY

4. Duchy Originals Ltd, 6 May 2009

A promotional email for a range of organic products stated, "Look no further than our new Echina-Relief tincture, which offers natural relief from cold and flu symptoms... Our Echinacea, Hypericum and Detox tinctures provide alternative and natural ways of treating common ailments such as colds, low moods and digestive discomfort."

Complaint/decision

The complainant challenged whether the efficacy claims in the ad could be substantiated for Echinacea, Hypericum and Detox tinctures.

The ASA upheld the challenges.

Although the advertiser's Echina-Relief and Hyperi-Lift tinctures were registered by the MHRA under the Traditional Herbal Medicines Registration Scheme, registration under the scheme required that all advertising for registered products stated clearly in the body copy "Traditional herbal medicinal product for use in [specified indications] exclusively based upon longstanding use as a traditional remedy". Since the ad did not include this required statement, the ASA considered that the ad implied the products had scientifically proven benefits. Since they did not, the ad was considered misleading.

With regard to the Detox tincture, the challenge was also upheld, as the ASA had seen no evidence for the efficacy of the product to substantiate the claim that it could "treat digestive discomfort" or, therefore, that it had scientifically proven benefits.

This adjudication is a reminder that the ASA expects any prescribed rules for advertising products, especially health products, to be adhered to closely. Advertisers must also provide robust evidence to substantiate claims as to the efficacy of their products.

AVAILABILITY

5. Tesco Stores Ltd, 6 May 2009

A double page national press ad for Tesco featured several discounted alcoholic drinks, including a bottle of Baileys labelled "£8 1 litre". The small print stated, "Selected discount brands and new price cuts available in +1500 stores. Selected UK stores. Subject to availability."

Complaint/decision

A customer found Baileys out of stock in several stores and challenged its availability.

The ASA rejected the challenge based on the stockholding figures submitted by Tesco. Tesco had arranged for a similar amount of stock as in a recent Baileys promotion when demand had been overestimated. Tesco had projected greater sales than for each of its previous three promotions despite the fact that the current promotion was shorter and an additional 33.3% of stock was also made available. On this basis and because 75% of stores had stock available at the end of the promotion, the ASA considered that Tesco had taken reasonable steps to ensure that it had sufficient stock to meet its sales projection. The ad therefore did not breach the Code.

The customer also complained to Trading Standards on the basis that Tesco was operating unfair trading practices, in breach of the Consumer Protection from Unfair Trading Regulations 2008 (the "Regulations"). The Regulations were introduced into UK law last year to implement the Unfair Commercial Practices Directive. In particular, Tesco was reportedly under investigation for engaging in "bait advertising". This describes the practice of retailers advertising goods for which they expect to have insufficient stock. It is one of the banned practices defined as "always unfair" under the Regulations. Although no results of any Trading Standards investigation have been published, this finding by the ASA suggests that there was no breach here of the Regulations.

"FREE" CLAIMS

6. British Telecommunications Plc t/a BT, 13 May 2009

A TV ad and a press ad for BT promoted calls to 0845 and 0870 numbers as "free". Both ads stated, "Availability of free 0845 and 0870 calls...dependent on BT calling plan" and "Free within your inclusive call time".

Complaint/decision

The complainant challenged whether the ads were misleading for not making it sufficiently clear when the calls to 0845 and 0870 numbers were free. It was further challenged whether the TV ad was misleading because it showed someone making calls to utility companies that were not likely to be open during the evenings and at weekends, which were the times when the calls would be "free".

The ASA rejected both challenges. It considered that customers were likely to understand that the reference to the calls being free within the "inclusive call time" meant that calls to 0845 and 0870 numbers were free at the times when calls to ordinary numbers were not charged. Customers were also likely to understand from "dependent on BT calling plan" that it was dependent upon their call package.

It was therefore concluded that the ads were unlikely to mislead. Moreover, the ASA held that many companies operating 0845 and 0870 numbers for customer services did indeed keep their lines open in the evenings and on Saturdays. Since BT have made sufficiently clear that free calls were available only during a customer's inclusive call time, it considered that the ad was also unlikely to mislead on this point.
This adjudication serves as a reminder to advertisers to ensure that the conditions attached to a "free" service are made sufficiently clear. It is also important to explain where such services are inclusive as part of a service plan.

COMPARATIVE ADVERTISING

7. Gocompare.com Ltd, 13 May 2009

Two Google-sponsored links for Gocompare.com stated, "We compare more than anyone else." A TV ad showed a man saying, "When you visit Gocompare.com, you can compare the prices for more car insurance companies than any other comparison website."

Complaint/decision

Moneysupermarket.com Group Plc challenged whether the ads were misleading, because they believed that they compared quotes from more car insurance providers than Gocompare.
The ASA acknowledged that the market for price comparison sites was relatively dynamic and the number of car insurance providers compared by each site could change frequently over the course of a month. Gocompare therefore needed to demonstrate that it provided a higher number of quotes each month on average for a sustained period of time in order to substantiate the claims in its ads. Both Gocompare and Moneysupermarket provided data in this regard. However, Gocompare's data related only to June and July 2008. The ASA considered this insufficient to substantiate Gocompare's claims. Gocompare would need to show that it compared more providers than its providers every month on average for more than two months, and more recent data. For this reason, the ASA upheld the challenge that the claims were likely to mislead.
The ASA advised Gocompare to hold more robust data for their closest competitors, failing which, it should make no such comparative claims in future.

This adjudication demonstrates that the ASA will take the circumstances of a particular industry sector, such as the volatility of the market for price comparison sites, into account. General "number one" claims which are not qualified will need particularly robust substantiation, although the ASA did not stipulate here what period of time would have been sufficient to substantiate the claims.

This complaint is part of what appears to be an ongoing battle between Gocompare and Moneysupermarket to claim the "number one" position in the volatile comparison site market. In November 2008, Gocompare challenged a Moneysupermarket ad that claimed the company "compared more quotes than anyone else" (see our ASA Adjudications snapshot for November [link]).

The ASA rejected Gocompare's challenge on the basis that Moneysupermarket had supplied data collected over 12 and 17 months up to July 2008, whereas Gocompare had once again only provided data for June and July 2008. Due to the fact that figures could fluctuate frequently over the course of a month in this sector, the ASA considered evidence gathered over a sustained period of time to be more robust than a snapshot of a particular month. Moneysupermarket's information was, therefore, held to be more accurate than Gocompare's data.

8. Tensar International Ltd, 20 May 2009

A brochure advertised, Geogrids, strengthening grids used in construction. The brochure claimed that TriAx "Outperformed the best performing biaxial geogrids" and "Scientifically proven to outperform biaxial geogrids".

Complaint/decision

NAUE GmbH & Co KG (NAUE) challenged whether the claims could be substantiated and the comparison made in the ad with Tensar's competitors was verifiable.

The ASA upheld both challenges after taking expert advice. The ASA considered that it had not seen sufficiently robust evidence to substantiate its claims to be the "best performing" geogrids, as the evidence submitted by Tensar only related to its own products. The ASA therefore concluded that Tensar had not proven its claims.

Although Tensar claimed that it had not intended to make a comparison between its products and those of its competitors, Tensar's claims to be the "best performing" geogrids contained this implication. The ASA criticised the ad for not explicitly referring to the means by which readers could verify the basis of the comparative claims, such as by way of a "signpost".

As with the previous adjudication, robust evidence is required to substantiate "best" or "number one"type claims. Comparisons can be made without explicitly mentioning competitors by name, and the sources of the data which verify the claims must be flagged up for the purposes of verification.

VIRAL MARKETING

9. Metrodome Group Plc, 6 May 2009

A viral email campaign promoted the film Shifty. The website for the film invited visitors to "Stitch up a mate" by entering a friend's email address. The website stated that the recipient would not see their email address. The recipient was subsequently sent an email address communitydrugsteam@ukgov.org.uk. The subject line stated "CRIMINAL INVESTIGATION" and was followed by a reference number including the recipient's name. The email stated, "A copy of this notice has been sent to the postal address registered under the electoral roll." The email informed the recipient that a person had been arrested for possession of Class A drugs and had supplied the email recipient's name as a habitual narcotics user. The recipient was therefore "now at risk of a criminal prosecution". The email recipient was given two options, both of which were accompanied by a website link. The recipient could either "participate in the newly launched Act Against Drugs campaign, and submit to counselling and weekly drug testing" or appeal against the notice. The email continued that if the recipient did not respond within seven days, "This will then become an official matter and there will be a strong likelihood of criminal investigation". When the recipient clicked on either of the links in the email, they were directed to the website for the film, which stated, "You have just been stitched up by your friend. If you can't spot a shifty email when you see one... to stitch up your own friend click here".

Complaint/decision

The complainant received the email at their work address and was concerned that it could pose a threat to their employment. The complainant therefore challenged whether the ad was distressing and irresponsible by implying that the recipient had been involved in the use of illegal drugs. Furthermore it was challenged whether the ad was misleading due to its appearance as an official communication without making it clear that it was merely marketing material.

Unsurprisingly, the ASA upheld both challenges. The ASA considered that the email could indeed cause alarm and undue distress due to the implication that the recipient was at risk of criminal prosecution and that the email had been sent by an official body. This distress could be compounded if the email were seen by the recipient's employer or friends and family. Although Metrodome had amended the ad to include text stating, "If you are still reading this email please be aware that this is a hoax sent to you by one of your friends", this text was insufficient to mitigate the possible distress caused by the overall impression of the ad. The ASA concluded that the ad was irresponsible. In addition, the ASA considered that the marketing campaign misled recipients of the email. The email address, communitydrugsteam@ukgov.org.uk, the references to the Community Drugs Team, the reference number and the mention of the electoral roll gave the impression of being official. Nothing in the body copy of the email, its subject line or sent address identified the email as marketing material. The ASA therefore concluded that the ad was misleading.

The ASA raised a third challenge with respect to whether the approach used by the advertisers breached the database rules because recipients had not given explicit consent to receive marketing by email. The ASA upheld this challenge as the film's website did not seek to obtain the explicit consent of the recipient. Moreover, since the sender's email address would be withheld, it was unclear to recipients how and when their email address had been obtained. Since Metrodome had failed to establish whether the recipient was happy to receive email marketing, the ad was held to be in breach.

The Information Commission's Office has issued guidance about such viral email marketing campaigns to ensure that the data used is collected fairly, which includes safeguards to ensure that consent is obtained by the third party before sending the viral. The very fact that this viral campaign was a "stitch-up" demonstrates that consent would not have been obtained.

OTHER

10. The Ski & Outdoor Warehouse Ltd t/a Skiwear4Less, 13 May 2009

An email for skiwear4less.com stated, "We regret to inform you that British actress, Natasha Richardson has died in hospital this morning, after suffering a head injury in a skiing accident...She was not wearing a helmet at the time ...We, as a company, strongly recommend the wearing of ski helmets by children and adults, in light of this and other tragedies. To encourage the wearing of ski helmets, we have reduced the prices of both kids' and adults' ski helmets".

Complaint/decision

The complainants challenged the email as offensive because it used the recent death of Natasha Richardson to sell the advertiser's ski helmets.

The advertiser argued that the email was a newsletter and not an ad. The ASA, in upholding the complaint, warned the advertiser that particular care should be taken when using such stories, especially those involving a death. The ASA considered the email to be an ad because it promoted a sales offer.

This adjudication shows that the ASA is sensitive to ads that seek to exploit sensitive topics in order to increase sales. Advertisers may not be able to seek refuge in the excuse that they are merely reporting current news stories and, in any event, should be mindful that of causing possible negative publicity by referencing tragic events purely in order to promote a sales offer.

11. HomePride Ltd, 20 May 2009

A TV ad for an oven cleaner stated, "So easy, even a man can do it". A man was shown to use the product with ease, to his exaggerated delight. On-screen text at the end of the ad stated, "Note: no men were harmed during the making of this commercial".

Complaint/decision

673 viewers complained that the ad was sexist and offensive. Most complainants objected that the ad suggested that men were stupid and lazy. Other complainants considered that the ad suggested that cleaning was generally a woman's job.

The ASA rejected the complaints. The ASA noted that the ad played on traditional gender roles but considered that the gender stereotypes used were not harmful. In particular, the tongue-in-cheek humour prevented serious or widespread offence from being caused.

This adjudication demonstrates the ASA adopting a measured stance despite a very significant number of complaints having been made. In certain circumstances, the use of obvious humour can greatly assist to diffuse potential offence.

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 29/06/2009.

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