UK: ASA Adjudications Snapshot – July 2009

Last Updated: 26 August 2009
Article by Susan Barty and Susie Carr

ASA Adjudications Snapshot – July 2009

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

This month, the ASA particularly considered price comparisons explicitly made against competitors, health claims and complaints of advertisers causing serious offence.

To view the article in full, please see below:




Full Article

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

This month, the ASA particularly considered price comparisons explicitly made against competitors, health claims and complaints of advertisers causing serious offence.

COMPARATIVE ADVERTISING

1. B&Q plc, 8 July 2009 (pre-emptive price comparisons)

2. Tesco Stores Ltd, 29 July 2009 (clearly state basis for price comparisons, particularly where non-identical)

3. Pontin's Ltd, 29 July 2009 ("better value" can simply mean "cheaper" in certain contexts)

FOOD AND DRINK

4. Antonio Federici, 1 July 2009 (sexualising religious figures)

5. Arla Foods Ltd, 15 July 2009 (health-related food products must be advertised responsibly)

6. Kentucky Fried Chicken (Great Britain) Ltd, 15 July 2009 ("freshness" claims and consumer knowledge relevant to implied claims)

7. Kerry Foods Ltd, 22 July 2009 (sexual innuendo and scheduling)

HEALTH AND BEAUTY

8. Bayer plc, 15 July 2009 (cartoon-style animation not necessarily trivialising serious issues)

9. Klinge Foods Ltd, 15 July 2009 (no unqualified health claims)

ALCOHOL

10. Fuller Smith & Fuller Turner plc t/s Fuller, 1 July 2009 (official sponsorship cannot be inferred in the absence of an explicit statement)

11. Wild Cape Liqueurs Ltd, 1 July 2009 (linking alcohol with seduction)

OTHER

12. Bognor Motors Ltd, 8 July 2009 (use of term "mental" is offensive)

13. Virgin Media Ltd, 8 July 2009 ("No. 1" product must be generally available)

14. Apple (UK) Ltd, 29 July 2009 (market leader can make bold claims)

COMPARATIVE ADVERTISING

1. B&Q plc, 8 July 2009

A national press ad for B&Q stated, "We'll beat any price, any day of the week..... even when others have a 15% day". The ad compared the B&Q price of various DIY and decorating products with the Homebase 15% off price. A footnote stated "All items purchased from Homebase... 15% event starts tomorrow".

Complaint / Decision

Homebase challenged whether the ad was misleading and made an unfair comparison because the 15% discount offer had not begun by the date on which the items were purchased. Homebase said that a number of their prices quoted in the ad were not those charged during the 15% discount offer.

The ASA upheld the challenge. It acknowledged that B&Q had attempted to represent Homebase's prices accurately during the 15% discount offer by visiting a Homebase store and purchasing various products that were subject to comparison. However, Homebase had altered the base price of the products compared before the 15% promotion began, resulting in their discounted prices being significantly lower than those used in B&Q's ad. Although the ASA considered that Homebase had altered its base prices in response to B&Q's ad, the effect was that Homebase's prices were not objectively verified at the time the ad was published. The comparison in the ad was therefore likely to mislead. The ASA advised B&Q that, had the ad concentrated on the difference in current prices on the day after price check without anticipating Homebase's price discount, it could not have been challenged as being misleading.

This adjudication demonstrates that a price comparison must be objectively verified and up-to-date, even where the advertiser's competitor has reduced its prices tactically as a result of the ad.

2. Tesco Stores Ltd, 29 July 2009

Three press ads for Tesco Stores advertised washing up liquid, French wine and nappies. In each case the product was pictured and text next to it stated the price payable at Tesco and the price payable at Aldi. Text underneath stated, "Britain's biggest discounter".

Complaint / Decision

Aldi Stores Ltd challenged whether the ads contained misleading and unfair comparisons because they did not compare like for like products. Aldi and a member of the public also challenged whether the "No. 1" claim "Britain's biggest discounter" was misleading and could be substantiated.

The ASA upheld the challenge of unfair comparison in relation to the ads for the washing up liquid and the French wine. In both cases, the small print stated that the products compared were different, but the ASA considered that this text was of insufficient size to avoid being overlooked. The ASA therefore concluded that the ads were misleading.

Due to the fact that "Tesco" was printed clearly across the nappies in the picture featured in the second ad, the ASA considered that the ad made clear that these were Tesco's own-brand nappies. Consumers would therefore not expect the Tesco nappies to be identical in nature to the Aldi nappies compared. Tesco had provided evidence that the nappies compared in the ad were of similar quality and were the most comparable. The ASA therefore concluded that the comparison was fair and that the ad was unlikely to mislead.

However, the ASA upheld the challenge in relation to the claim "Britain's biggest discounter". It considered that the basis of the claim was ambiguous and could be understood in a variety of ways. The CAP Code states that comparisons should be "clear and fair" and should not mislead "by inaccuracy, ambiguity, exaggeration, omission or otherwise". Tesco attempted, in its response, to substantiate several different possible interpretations of the claim, including related to its volume of sales and market share. However, the ASA considered that a significant number of people could interpret the claim to mean that Tesco prices on individual items likely to be purchased by one customer were lower than in all other stores or that Tesco discounts offered on any one item were greater, as indeed the public complainant had interpreted the claim. The ASA concluded that the claim was ambiguous and the basis of the comparison unclear, and therefore the ads were likely to mislead.

This adjudication demonstrates that the ASA's chief concern in price comparative advertising is clarity for the benefit of the consumer. Particularly in the current economic climate, it was unsurprising that this well-publicised and controversial "No. 1" claim was challenged.

There was also another Tesco adjudication on 29 July 2009this month on misleading price comparisons with Asda. This concerned comparisons made against different pack sizes and the number of "real baskets" that formed the basis of the comparison, and comparisons between promotional and non-promotional items.

3. Pontin's Ltd, 29 July 2009

A national press ad for Pontin's was headed, "Outstanding value at Pontin's – better value than Butlins. - You be the Judge!" Boxed text stated "Outstanding value - Just compare our prices", followed by the Pontin's website address. Text in a list stated "Prices include entertainment and up to 50 FREE family leisure activities; Our Bluecoats have the x-factor; Who else gives you up to £50 Pontin's Pounds holiday spending money! And our prices won't put you in the Red." Body copy underneath stated, "If you think you have found a better value British Family Holiday elsewhere - then take it! Pontin's make your pound stretch further!"

Complaint / Decision

Bourne Leisure (Butlins) challenged whether the comparative claim, "better value than Butlins" was misleading and could be substantiated.

The ASA rejected the challenge. It observed that Butlins had not disputed that Pontin's holidays were cheaper. Butlins had instead claimed to provide more activities and more better quality facilities, which it considered should have been taken into account in the "better value" claim. However, the ASA considered that the focus of the Pontin's ad was on the prices of holidays at Pontin's and how those prices compared with Butlin's. The ASA therefore concluded that, in the context in which it appeared in this ad, the claim was unlikely to mislead readers

This adjudication demonstrates that the ASA will have regard to the context of an ad when considering a "better value" claim, and may restrict the interpretation of such a claim to represent a price comparison where the focus is on the price alone.

FOOD AND DRINK

4. Antonio Federici, 1 July 2009

A magazine ad for Antonio Federici Gelato Italiano ice-cream showed a priest and nun looking as if they were about to kiss. Text stated, "Kiss temptation".

Complaints / Decision

Ten complainants objected to the suggestion of a kiss between a priest and a nun as offensive, because it demeaned people who had chosen to follow a religious vocation.

The ASA upheld the challenge. Although the ad stopped short of showing the nun and priest kissing, they were portrayed in a sexualised manner. This was considered likely to cause serious offence to some readers. Use of religious imagery in advertising is always a sensitive issue and likely to attract complaints and, consequently, be looked at carefully by the ASA.

5. Arla Foods Ltd, 15 July 2009

An ad for Lactofree stated, "If you are not able to tolerate dairy products, then think again – Lactofree is dairy you can enjoy". Text underneath stated, "If you experience pain or discomfort after consuming milk, it is worth checking to see if you could be lactose intolerant. The safest and easiest way to do this is to experiment with removing different items from your diet. Lactofree has created the Elimination Diet to help you do this (visit www.lactofree.co.uk )".

Complaint / Decision

The complainant challenged whether the ad discouraged essential treatment from a suitably qualified medical practitioner and misleadingly implied that elimination diets were safe and easy.

The ASA rejected both challenges. It was satisfied that Arla had designed its diet plan in consultation with medical and dietary experts. The ASA also understood that lactose intolerance did not require essential medical treatment. In any event, the Arla website advised visitors to consult a GP prior to starting the diet.

It was interesting that, in the ASA's view, the claims "safest" and "easiest" were relative and did not suggest that all elimination diets were safe and easy. Arla's diet plan had been devised in conjunction with experts and the product website contained all necessary significant information, the ASA concluded that the claims were unlikely to mislead.

This adjudication demonstrates that the ASA will be more amenable to ads in which the advertiser has acted responsibly and provided consumers with all necessary information.

6. Kentucky Fried Chicken (Great Britain) Ltd, 15 July 2009

A TV ad for KFC featured a restaurant kitchen and a chef carrying a tray of chicken on the bone before placing it on a wire tray. He said, "The secret to producing the best food is using the right ingredients. Like this chicken, came in fresh this morning". A voice-over said "KFC. Fresh, on the bone chicken, every store, every day".

Complaint / Decision

A viewer complained that the ad misleadingly implied that chicken was delivered daily. In fact, chicken on the bone was delivered three times a week, and so the ASA held that the ad was misleading on this point.

18 viewers challenged the ad as misleading because it claimed that the food was fresh and prepared in-store, whereas they believed that the food was prepared off-site and the chicken was delivered frozen. Two viewers also believed that the ad misleadingly implied that the chicken was grilled rather than fried.

The ASA rejected these two challenges. The ASA considered it clear from the ad visuals and the voice-over that the claim "fresh and prepared in-store" referred to one specific product: the chicken on the bone. As KFC had demonstrated that this meat was delivered fresh and prepared each day in store, the ad was deemed unlikely to mislead. This demonstrates the ASA taking a sensible approach and shows that fast food ads are still able to focus on freshness of ingredients provided that they have the relevant substantiation and do not mislead. The ASA also commented that the KFC brand was well-known for selling fried chicken. The brief shots of the wire tray to move the chicken around the kitchen were unlikely to mislead viewers about how the product was cooked.

This adjudication serves as a reminder that advertisers must substantiate even implied claims, but general consumer knowledge about the product may be taken into account.

7.Kerry Foods Ltd, 22 July 2009

A radio ad for Matteson Smoked Pork Sausage featured a male voice, stating, "Mmm, Matteson's Smoked Pork Sausage. Think about all the things you can stick this tasty, extraordinarily large sausage in.... You have any ideas? Give me a call and tell me where you like to stick it. Ladies, I'm waiting for your call.... Mmm, Matteson's Smoked Pork Sausage. You want it." Three other radio ads proceeded on similar lines.

Complaint / Decision

21 listeners complained that the ads were offensive, because they contained inappropriate sexual innuendo. Some of those listeners also challenged the ads as unsuitable for broadcast when children were likely to be listening.

The ASA rejected the challenge of offensiveness. It was noted that the ads were intended to be tongue-in-cheek. The opening line, "Mmm, Matteson's Smoked Pork Sausage", made clear that the ads were referring to food. Furthermore, the innuendo was not sexually explicit. The ASA concluded that the ads were unlikely to cause serious or widespread offence.

However, the ASA upheld the second challenge. Although young children would be unlikely to understand the innuendo in the ads, it might cause harm to older children. The ASA concluded that the ads had been inappropriately scheduled because they had not been scheduled away from times when children might be listening.

This adjudication demonstrates that light-hearted treatment of an ad may negate potential offensiveness, but that the ASA remain sensitive to scheduling concerns.

HEALTH AND BEAUTY

8. Bayer plc, 15 July 2009

A TV ad for Levonelle One-Step Emergency Contraception featured cartoon-style animation of a worried looking woman. The condom balloon burst to reveal the text "The 'condom split' one". The woman was then shown on a bus near a crying baby and text on the window of the bus stated, "The 'I'm not ready for that'". The woman was then shown walking into a chemist where she was given the product. The text "The 'only over the counter' one" featured. The woman was shown walking out of the chemist with a smile on her face and the text "The 'what a relief' one" appeared on a billboard.

Complaint / Decision

An extremely high number of viewers complained about the ad. 112 viewers challenged the light-hearted, cartoon style of the ad as trivialising a serious issue and suggesting that unprotected sex is not a problem, thereby encouraging promiscuity.

The ASA rejected the challenge. It considered that the woman was depicted looking worried, suggesting that her situation was not trivial but of concern to her. She was not presented in a glamorous way and so was unlikely to particularly appeal to young people. The animated condom balloon and on-screen text referred to the fact that a condom had split, clarifying that the couple had not had unprotected sex. The voice-over and on-screen text also referred to the product as "emergency contraception" and did not suggest that it was suitable for more regular use. The ASA therefore concluded that the ad would not cause serious or widespread offence.

This adjudication demonstrates the ASA adopting a measured approach to a vast number of complaints. The use of cartoon-style animation will not necessarily be found to appeal to children or trivialise issues.

9. Klinge Foods Ltd, 15 July 2009

A TV ad for Lo Salt claimed it was a "healthy alternative" to regular salt.

Complaint / Decision

The complainant challenged the claim "healthy alternative" as misleading, because Lo Salt contained over 50% potassium chloride. It was his view that Lo Salt was worse for the human body than regular salt.

The ASA upheld the challenge. They had consulted the Foods Standards Agency, which concurred that it might be healthier alternative to regular salt. However, the high potassium content might cause a risk to certain sub-populations such as infants, the elderly and patients with certain conditions. However, as the ad suggested that Lo Salt was healthier than regular salt for everyone, the ASA concluded that the claim "healthy alternative" was absolute and therefore likely to mislead.

This adjudication demonstrates that advertisers must take particular care when making unqualified health claims, however small or apparently low-risk any sub-population exceptions might be.

ALCOHOL

10. Fuller Smith & Turner plc t/a Fuller, 1 July 2009

This month, the ASA also published an adjudication in relation to a regional press ad for Fuller's London Pride Ale, which showed an image of a rugby post and text stating "Support English rugby". For our Law-Now article on this please click here.

11. Wild Cape Liqueurs Ltd, 1 July 2009

An ad for Wild Africa Cream Liqueur showed a couple embracing. The woman's arm was covered in leopard skin and scratch marks were shown. Text stated, "Everyone has a wild side to them. Discover yours with Wild Africa Cream".

Complaint / Decision

Alcohol Concern objected that the ad linked alcohol to seduction, sexual activity or sexual success. The ASA also challenged whether the ad implied a link between alcohol and a change in mood or enhanced confidence.

The ASA upheld both challenges. Although the scratch marks were stylised and unlikely to be seen as having been inflicted by the woman, the couple's embrace and the leopard skin, in conjunction with the strap line "Unleash your wide side" implied that the woman had seduced the man after consuming Wild Africa Cream Liqueur. Linking alcohol with seduction breached the CAP Code.

The ASA also considered that the image of the smiling woman and the strap line suggested that the product Wild Africa Cream Liqueur had changed the woman's mood and enhanced her confidence, in breach of the Code. On this point as well, the ad breached the Code.

This adjudication serves as a reminder to alcohol advertisers that the ASA is very sensitive to any suggestion that alcohol might influence a change in mood or confidence, even if there is a clear link with the product name.

OTHER

12. Bognor Motors Ltd, 8 July 2009

A radio ad for a car dealership stated, "If you don't go to Bognor Motors, you must be mental".

Complaint / Decision

The Project Trust, a mental health charity, challenged whether the ad was offensive to those of mental health problems.

Although the Radio Advertising Clearance Centre considered that the word "mental" was used in its colloquial and innocuous sense, the ASA upheld the challenge. It considered that listeners would understand the word to denigrate those with mental health problems and could therefore cause serious offence to some listeners.

This adjudication shows that the ASA is sensitive to language that retains any offensive meaning, even where it has a common non-offensive meaning in the vernacular.

13. Virgin Media Ltd, 8 July 2009

A TV ad, a press ad and a poster ad for Virgin Media Broadband stated, "The fastest broadband in the UK".

Complaint / Decision

BT objected that the claim was misleading because some of its customers in Kent were able to download at faster speeds. A member of the public also objected to the ads because they believed that faster broadband was available from another provider.

Broadband speed is always a controversial and competetive area and advertisements which make comparisons in this area tend to attract complaints. In this case, the ASA rejected both complaints. The faster broadband offered by BT was merely a pilot project. The provider to which the member of the public referred had launched its faster broadband after the ads published. Because Virgin Broadband was the fastest generally available broadband in the UK, the claim was considered unlikely to mislead customers.

This adjudication demonstrates that advertisers can make a "No. 1" nationwide claim, even in competitive industries, provided that the advertised product is widely available.

14. Apple (UK) Ltd, 29 July 2009

A TV ad demonstrated a range of applications for the Apple iPhone. The voice-over stated, "Yep, there's an app for just about anything. Only on the iPhone."

Complaint / Decision

10 viewers challenged the ad as misleading because the G1 phone had a similar application marketplace from which a range of applications could be downloaded.

The ASA rejected the challenge. It considered that viewers would understand the claim, "Only on the iPhone" to refer to the range of applications available and the user experience of iPhone, and not as a claim that Apple was the only company to provide mobile phone applications. The ASA considered that Apple had demonstrated that there were more applications available for the iPhone than the G1 phone and that user experience of the iPhone and the application store was distinct from its competitor. It therefore concluded that the claim, "Only on the iPhone" was justified and not misleading.

This adjudication reminds advertisers that the ASA will, in appropriate circumstances, accept bold comparative claims made by an advertiser that leads the market. Another example of the ASA accepting such claims was from 6 June 2007 where Intel made the bold claim, "the world's best processors". Intel was able to substantiate the claim and the complaint was consequently not upheld.

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 26/08/2009.

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