UK: ASA Adjudications Snapshot - June 2009

Last Updated: 3 August 2009
Article by Susan Barty and Susie Carr

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

This month, the ASA published adjudications concerning comparative advertising, natural claims in food and fabric conditioner and the requirements for "up to" claims.

To view the article in full, please see below:



Full Article

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

This month, the ASA published adjudications concerning comparative advertising, natural claims in food and fabric conditioner and the requirements for "up to" claims.

FOOD AND DRINK

1. McCain Foods (GB) Ltd, 3 June 2009 (implied organic/natural claims)

2. Tetley GB Ltd, 3 June 2009 (antioxidant health benefits exaggerated)

3. Coca-Cola Great Britain, 17 June 2009 (fantasy ad prevented risk of emulation)

HEALTH AND BEAUTY

4. Coty UK Ltd t/a Rimmel London, 17 June 2009 ("up to" claims)

COMPARATIVE ADVERTISING

5. GlaxoSmithKline plc t/a GlaxoSmithKline Consumer Healthcare, 17 June 2009 (robust evidence across the market for comparative ads)

6. Ocado Ltd, 10 June 2009 (price match policy)

7. Spreadex Ltd t/a shortsandlongs.com, 10 June 2009 (denigration of competitor)

OTHER

8. Creafire AG t/a getiq.co.uk, 3 June 2009 (costs of a service not clearly stated)

9. Goodyear Dunlop Tyres UK Ltd, 3 June 2009 ("impressionistic" claims)

10. Suzuki GB Plc, 10 June 2009 (green claims implied through visual imagery)

11 .Unilever UK Ltd, 10 June 2009 (natural claims for fabric softener)

12. Adidas (UK) Ltd, 17 June 2009 (availability of products featured in ad)

FOOD AND DRINK

1. McCain Foods (GB) Ltd, 3 June 2009

A TV ad for oven chips showed a farmer "conducting" rain and sunshine over fields of growing potato and sunflower plants. The voiceover stated, "McCain Oven Chips are made with sunshine and rain, potatoes and sunflower oil. And nothing else."

Two viewers complained that the ad misleadingly implied that the produce was grown without the use of chemicals.

Complaint/decision

The ASA rejected the challenge. Since McCain Oven Chips did not claim to be organically produced, McCain was not prohibited from using pesticides and fertilisers to grow the ingredients. The claim "made with sunshine and rain, potatoes and sunflower oil. And nothing else" merely emphasised that the chips were made from just two ingredients and did not contain additives. Furthermore, the growing process was depicted in an exaggerated manner, and so viewers would be unlikely to see it as a realistic portrayal of a production process using solely rainwater and sun. The ASA considered it was unlikely to mislead.

This is an encouraging result for advertisers, as merely stating that a product is made from a small number of ingredients will not automatically constitute a claim as to how those ingredients have been grown.

2. Tetley GB Ltd, 3 June 2009

A TV ad for green tea showed a woman about to leave the house for a jog but giving up on the idea upon seeing that it was raining. The woman was then shown making a cup of tea with a voiceover stating "for an easy way to help look after yourself, pick up Tetley Green Tea. It's full of antioxidants." on-screen text stated "as part of a healthy diet and lifestyle".

Complaint/decision

Four viewers complained that the ad was misleading for implying that Tetley Green Tea had the same or similar health benefits as exercise. The ASA rejected the challenge. Although it disagreed with Tetley's argument that the young woman clearly led a healthy lifestyle, because she appeared glad of an excuse not to go for a run, it considered that viewers were unlikely to be misled into thinking that drinking Tetley Green Tea would have the same or similar health benefits as exercise. Viewers were merely likely to infer that it was a way of achieving some health benefits, in particular because it contained antioxidants.

However, the ASA upheld its own challenge, that the ad implied that Tetley Green Tea had greater health benefits than it did. Tetley had not provided evidence to demonstrate that green tea, or the antioxidants it contained, had general health benefits and the ad was therefore held to be misleading.

This adjudication serves as a reminder to advertisers to ensure that they hold robust substantiation for food advertising claims, particularly in relation to possible health benefits. Health claims look like continuing to be an issue for the foreseeable future.

3. Coca-Cola Great Britain, 17 June 2009

A TV ad for Diet Coke showed the singer Duffy coming on stage. An assistant handed her a can of Diet Coke and said, "You've got about two minutes, okay?" Duffy took a sip of the drink, climbed onto a bicycle and cycled through the night along quiet streets and into a supermarket. She returned to the concert in time to perform her encore.

Complaint/decision

There were a surprising number of complaints about the ad. 18 viewers challenged whether the ad could be seen to condone behaviour prejudicial to health and safety, because Duffy was not wearing reflective clothing and did not have lights on her bicycle. Four viewers challenged whether the ad was irresponsible because it risked emulation by children.

The ASA rejected both challenges. It considered that the cycling scenes were obviously a fantasy sequence, and that this was reinforced by the transition from the realistic sounds of the concert to the dreamy vocal track. The fact that Duffy was shown cycling along empty roads and around the supermarket whilst performing a song distanced the scenes further from reality. This fantasy context prevented the ad from condoning behaviour prejudicial to health and safety.

The ASA also concluded that the ad was not irresponsible. It had been given an ex-kids restriction and the style of the ad was also unlikely to appeal to very young children due to its muted tones and relatively long takes. Older children would be unlikely to see it as a realistic situation suitable for emulation.

This adjudication demonstrates the ASA taking a sensible stance on complaints about an ad that was clearly based in fantasy, despite having received high volume of complaints.

HEALTH AND BEAUTY

4. Coty UK Ltd t/a Rimmel London, 17 June 2009

A TV ad showed Kate Moss using Rimmel's Lasting Finish Minerals Foundation. The voiceover stated, "lasts for up to 12 hours". The text of the bottom of the screen stated "12-hour wear" and "20 out of 99 women agreed" were shown in the top right corner of the screen.

Complaint/decision

Three viewers challenged whether the claims "Lasts up to 12 hours" and "12-hour wear" were misleading, because they were contradicted by the statement "20 out of 99 women agreed".

The ASA rejected the challenge. Although Rimmel had shown that 10% of the respondents to the survey agreed with the claim "up to 12 hours", other significant factors needed to be taken into account when assessing a cosmetic or efficacy "up to" claim, such as the spread of results and quality of data. In this regard, the results of Rimmel's survey showed 27% of respondents agreeing that cover lasted for 12 hours or more, 46% for 10 hours or more and 76% for 8 hours or more. In the ASA's opinion, Rimmel had therefore provided evidence demonstrating that most respondents believed that the powder lasted for 8 hours or more, which supported the "up to 12 hours" claim.

This adjudication is a reminder that "up to" claims must always be based on robust evidence, but that the ASA will consider multiple criteria when evaluating the robustness of evidence provided in this regard.

COMPARATIVE ADVERTISING

5. GlaxoSmithKline plc t/a GlaxoSmithKline Consumer Healthcare, 17 June 2009

A TV ad for Zovirax cold sore treatment stated, "Nothing works faster".

Complaint/decision

Two viewers challenged the top parity claim "Nothing works faster" because they believed that there was a light-emitting device that worked faster.

The ASA considered that viewers would infer from the ad that Zovirax worked at least as quickly as all other treatments at successfully treating cold sores. However, GSK did not hold comparative evidence to show this and therefore the claim "Nothing works faster" had not been substantiated. The ASA acknowledged that if GSK undertook further studies which substantiated that Zovirax worked at least as quickly as the light-emitting device, they might be able to use the claim "Nothing works faster" in future ads.

This adjudication is a reminder that advertisers should consider carefully which other products might fall within their comparative claims. In this instance, for example, the claim was not limited to other creams.

6. Ocado Ltd, 10 June 2009

A national press ad and an email from Ocado stated, "We are matching Tesco on all household brands*". The asterisk linked to a footnote in the national press ad that stated, "*The standard retail price is matched on all identical products at Tesco.com. Does not apply to temporary promotions or special offers. Prices checked 10/03/08."

Complaint/decision

Tesco challenged whether the price match claim was misleading, because their monitoring had shown that Ocado was more expensive than Tesco for 601 products in a sample of 3,811.

The ASA upheld the complaint, despite recognising "the challenges that operating a robust price match policy could pose". The ASA considered that Ocado had sought to implement its price match policy in a comprehensive way, noting in particular that it was reasonable for Ocado to check prices on a weekly, rather than on a more frequent, basis due to the large number of items in question.

However, although the ASA accepted that a small number of unavoidable discrepancies were to be expected due to the scale of the policy, Ocado had failed to resolve certain issues that put it at risk of failing to price match a large number of items. These included the fact that Ocado conducted its "scrape" of Tesco.com in the early morning of a price match day, meaning that if Tesco changed its prices during the course of the day, Ocado's price match claim for those products that day was rendered inaccurate.

Furthermore, new products added to the Ocado range were only price matched at the next designated price match day, which might not be for a whole week. However, there was no indication to customers on the website that these products had not yet been price matched. The ASA was therefore concerned that there was potential for customers to be misled. The ASA concluded that Ocado should be prohibited from repeating its price match claim until it has addressed the flaws in its price match policy.

This adjudication demonstrates to advertisers that the ASA is, on occasion, willing to accept a few inevitable errors occurring where a price match policy is particularly ambitious. However, advertisers should ensure that they have addressed all the factors within their control that are likely to lead to inaccuracies.

Although the 2006 case Lidl Belgium GmbH & Co KG -v- Etablissementen Franz Colruyt NV (ECJ) on bulk comparative advertising was not referred to in this adjudication, it remains important to consider in relation to most supermarket comparison claims. In that case, the ECJ ruled that general comparisons between baskets of goods are permitted in ads without the need to list all products that have been compared exhaustively, as long as an explanation is given as to where such details may be found.

7. Spreadex Ltd t/a shortsandlongs.com, 10 June 2009

A regional press ad for a spread-betting company was headed "Capital punishment?" The body copy stated, "Looking to escape your spread-betting firm? Want an account with tight spreads? Vast executions and no re-quotes?"

Complaint/decision

London Capital Group and CMC Markets challenged whether the ad denigrated Capital Spreads, a Spreadex competitor whose logo was very similar to that used in the ad heading. CMC Markets further challenged whether the ad was misleading, because it implied that Capital Spreads did not offer "tight spreads", "fast executions" and "no re-quotes".

The ASA upheld both the challenges. It agreed that Spreadex had used a graphic closely resembling Capital Spreads' logo, which customers might interpret as a reference to Capital Spreads' service. The ASA therefore concluded that the claim "Capital Punishment" discredited this service by denigrating Capital Spreads. The ASA further considered that the ad heading's graphic resemblance to Capital Spreads' logo implied a comparison between the two services and suggested that the account features offered by Spreadex were not available to Capital Spreads account holders. Spreadex had failed to provide evidence that this was the case, and the ASA therefore concluded that the ad was likely to mislead.

This demonstrates that the ASA will not accept advertisers asserting their own superiority by denigrating the competition and, as usual, advertisers must hold robust evidence in order to substantiate even implied comparative claims.

OTHER

8. Creafire AG t/a getiq.co.uk, 3 June 2009

An internet ad on a search website was headlined "Check new IQ game". Text below stated "Test your intelligence! Get a certificate now."

Complaint/decision

The complainant challenged that the ad misleadingly implied the results would be immediately available. In fact, participants were informed on completion of the test that results would be sent via two text messages at a cost of £4.00 each to the customer.

Creafire argued that the ad did not state that the test results were free. The ad was designed to promote the IQ test and not the result. However, the ASA upheld the challenge. It considered that consumers who took the test would reasonably expect that they could obtain the results at the end of it and would not consider obtaining those results to be a separate service. The text "Get certificate now" reinforced this impression. Consumers were only informed as to how to obtain the certificate after sending two text messages at a cost of £4.00 each, when the ad implied that the test results were immediately available at no cost. The ASA therefore concluded that the ad was misleading.

This adjudication serves as a reminder to advertisers to state the costs of a service clearly. The ASA will look closely at claims of "separate services" to ensure that advertisers are not making an artificial distinction between what consumers would consider to be two stages of one single service.

9. Goodyear Dunlop Tyres UK Ltd, 3 June 2009

A national press ad stated in headline text, "Goodyear OptiGrip. 20% better braking in wet conditions. 20% fewer scary moments on the roads." Further text stated, "The further you drive, the more it outperforms competitors tested in wet conditions. After 6,000 its braking distance is 5% shorter, after 12,000 miles its 7% shorter, after 18,000 is a massive 20% shorter." Footnoted text repeated these statistics and stated, "Tested against two leading competitors from February to April 2008 by Tuv Sud Automotive, tyre size 225/45R17: Car: VW Golf 2.0 fsi."

Complaint/decision

Straight statistics challenged whether the claim "20% fewer scary moments on the road" was misleading and could be substantiated.

The ASA rejected the challenge. The ASA considered that "20% fewer scary moments on the road" was an impressionistic claim that represented the advertiser's subjective opinion of the preceding "20% better braking in wet conditions" statistic. In addition, further body copy and footnoted text qualified the methodology and results of the breaking test. The ASA concluded, therefore, that the ad was unlikely to give a misleading impression.

This adjudication highlights the fact that advertisers may interpret a factual statistic imaginatively to make an "impressionistic claim", provided that the ad explains the basis for the statistic clearly.

10. Suzuki GB Plc, 10 June 2009

A direct mailing promoted the Suzuki Alto car. The envelope was headed "Your train tickets" and contained two leaflets, one of which looked like a train ticket. This opened to reveal a photomontage of the car, butterflies, flowers against blue skies and a rainbow. Text stated "A cute and compact city car with a fun, fashionable design and great green credentials.... So your fun drive can be a guilt-free one too..."

Complaint/decision

The complainant challenged whether the mailing, and in particular the references to "great green credentials" and "guilt-free", was misleading, because it implied that car travel was more environmentally friendly than train travel. The ASA rejected the challenge, as it did not consider that most recipients would see these descriptions as a claim that the car was more environmentally friendly than train travel. Rather, the mock ticket was promoting the Alto as a convenient, fun, alternative to train travel.

The ASA itself also challenged whether these claims misleadingly implied that the car caused little or no harm to the environment. The ASA upheld its own challenge, considering that, in conjunction with the visual context of the butterflies, blue skies, flowers and the rainbow, the implication was that the car caused little or no harm to the environment. As this was not the case, the ASA concluded that the ad was misleading.

The latter part of this adjudication serves as a reminder to advertisers to take care with "green" type claims, particularly in relation to unsubstantiated implications in visual imagery, even where the body copy text itself may not be in breach, as this has now been found by the ASA on several occasions to imply unsubstantiated green credentials.

11. Unilever UK Ltd, 10 June 2009

A magazine ad for a range of fabric conditions had the headline "Get back to nature". Underneath was an image of the aloe vera, cotton extract and jojoba oil products in the range, surrounded by flowers, stems and leaves. Text stated, "Blended with simple, natural ingredients, a new range of Comfort naturals infuses your clothes with beautiful fragrances inspired by nature. Each one is dermatologically tested..."

Complaint/decision

The complainant challenged whether the ad misleadingly implied that the products were made of 100% natural ingredients and whether the claim "determatologically tested" was misleading, because it implied that the product was suitable for people with allergies.

The ASA rejected both challenges. The body copy text stated that the products were "Blended with simple natural ingredients". Consumers were likely to understand the term "blended with" to mean that the natural ingredients named had been used in combination with other ingredients that might not be natural. The body copy claim "beautiful fragrances inspired by nature" would be understood by consumers to mean that the fragrances had been influenced by natural fragrances, rather than created using natural ingredients only.

Unilever had provided the ASA with their test methodology and results. The ASA considered that the term "dermatologically tested" implied that the product had been tested for general skin irritation, as shown by the test results. The ASA did not consider that consumers were likely to understand from the term that the product in question would be particularly suitable for people who suffered from specific allergic conditions. The ASA concluded that the ad was not misleading on this point.

Advertisers will be encouraged to observe that this adjudication demonstrates the ASA differentiating between "natural" claims, which are commonly used in connection with food/drink products, and claims that products are merely "inspired by", "influenced by" or "blended with" natural ingredients, which will carry a less onerous duty of substantiation.

12. Adidas (UK) Ltd, 17 June 2009

A TV ad featured celebrities and young people at a house party, wearing Adidas clothes and shoes. The singer Katy Perry was shown wearing red Adidas trainers. There was a close-up of some white and silver Adidas trainers. There were more party scenes and shots of trainers.

Complaint/decision

A viewer objected that the ad was misleading because two pairs of trainers featured were not available for purchase in the UK: the red trainers worn by Katy Perry and the white and silver trainers.

The ASA rejected the challenge. A number of different Adidas products were featured throughout the ad and it did not linger specifically on any particular item of clothing or footwear. The trainers appeared relatively briefly and were not the main focus of the ad. The ASA observed that the ad did not state the price of any of the featured items or make reference to any particular sales outlets. The ASA agreed with Adidas that the ad was aimed at promoting the brand in general, rather than any particular items. The ASA therefore concluded that the ad was not misleading.

This adjudication demonstrates that, in a general promotion of a brand, advertisers are not required to ensure the availability of every item featured in an ad, provided that the items which are not available do not feature prominently in the ad.

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 27/07/2009.

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