UK: ASA Adjudications Snapshot - February 2010

Last Updated: 23 March 2010
Article by Susan Barty and Susie Carr

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

This month, the ASA gave particular consideration to whether or not advertisers may use distressing and/ or offensive materials in their ads, in order to make them more effective. Also notable was the ASA's commentary on what constitutes a "free trial", the use of "token collect" schemes, and the offensiveness of an ad which suggests the assisted suicide of a pepperami sausage.

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

This month, the ASA gave particular consideration to whether or not advertisers may use distressing and/ or offensive materials in their ads, in order to make them more effective. Also notable was the ASA's commentary on what constitutes a "free trial", the use of "token collect" schemes, and the offensiveness of an ad which suggests the assisted suicide of a pepperami sausage.

HEALTH AND BEAUTY

1. BHH Technologies Pty Ltd t/a Nude by Nature, 3 February 2010 ("free trial" terms and conditions)

2. Ferring Pharmaceuticals Limited, 17 February 2010 ("offensive and demeaning" internet ad showing young bedwetter targeted at healthcare professionals)

3. Sasaki International Ltd, 17 February 2010 ("lose a dress size in three weeks" claim)

4. Dabs.com, 24 February 2010 (advertising of products in brochure where prices are subject to constant fluctuation)

5. Virgin Media Ltd, 24 February 2010 (implied claims about competitor's product through subtle wording)

FOOD AND DRINK

6. Unilever UK Ltd, 17 February 2010 ("ridiculous" ad involving assisted suicide of a cartoon pepperami targeted at advertising industry)

FINANCIAL

7. Loyalty Management UK Ltd t/a Nectar, 24 February 2010 (discrepancy between image of product shown on sales promotion and product sent to customers)

OTHER

8. ITV 3 Ltd, 17 February 2010 (loudness of adverts should be influenced by context/ mood of surrounding programme)

9. No Added Sugar Ltd, 24 February 2010 (ad showing children near plastic bags deemed unsafe)

10. Associated Newspapers Ltd t/a The Mail on Sunday, 3 February 2010 ("free" claim in context of token collect scheme)

11. People for the Ethical Treatment of Animals (PETA) Foundation, 3 February 2010 (image of murderer/rapist used in relation to claim about cruelty to animals)

12. Autoglass Ltd, 10 February 2010 (importance of qualifying statements in advertising products)

HEALTH AND BEAUTY

1. Ferring Pharmaceuticals Limited, 17 February 2010

A moving internet banner ad on the British Medical Journal "Learning" website showed a young boy looking miserable next to the headline "WHO'S A STINKY, STUPID, BABY BEDWETTER?" The next frame showed the young boy smiling next to text which stated "MELT AWAY THE MISERY OF BEDWETTING WITH DESMOMELT".

Complaint/ decision

The complainant, a doctor, objected that the ad was offensive and demeaning to patients who suffered from this condition.

Ferring argued that, as the ad was specifically targeted at healthcare professionals (i.e. on medical professional websites or journals), and, as such, only informed and experienced medical professionals would be able to view the ad, it could not be considered offensive or demeaning to patients, or to the general public. Although Ferring admitted that the ad was indeed "shocking", they also claimed that other measures had been implemented, such as requiring users to register on the site to see the ad, which mitigated the likelihood that it would be seen by the general public.

The ASA examined whether or not the general public would be able to access the information and concluded that, although the ad was available to view on a page of the site which did not require users to register (despite Ferring's claims to the contrary), the site on which it appeared was sufficiently specialised so as to prevent the wider public from seeing it, and, on this basis, did not uphold the complaint.

This adjudication is an interesting example of the ASA's consideration of targeted ads and the media in which they appear. Had the ad been widely available to the public, the complaint would have been likely to have been upheld.

2. Sasaki International Ltd, 17 February 2010

A leaflet for a 'Flabelos' exercise machine made various health-benefit claims, such as, "lose a dress size in 3 weeks", and, "Toning", "Burn Fat", "Anti-Aging" and "Reduce Cellulite, Increase Flexibility, Improve Circulation, Increase Bone Density, Improve Varicose Veins and Minimise Lower Back Pain".

Complaint/ decision

The competitor complainant, Power Plate, challenged various claims made in the ad on the basis that they could not be substantiated. Notably, one of the complaints was that the claim "lose a dress size in 3 weeks" was in contravention of various sections of the CAP Code, by virtue of the fact that the claim made a specified weight loss claim from a particular part of the body in a specified period.

The ASA, unsurprisingly, upheld all of the complainant's objections, due to the fact that Sasaki was unable to substantiate the claims.

However, what was interesting about the ASA's decision, and what will no doubt be welcomed by other advertisers who commonly claim that the use of their product can lead to individuals "losing a dress size", was the ASA's confirmation that the claim does not constitute a breach of the CAP Code by virtue of the fact that the claim related to weight being lost from a specific body part. Instead, the ASA explained, a person's dress size depends on various "height, body shape and dimensions", therefore, it cannot be held that such a claim relates to a specific body part. The reason the complainant's objection in this regard was upheld by the ASA was because of the fact that the claim specified a time-frame of three weeks, which Sasaki was not able to substantiate.

3. BHH Technologies Pty Ltd t/a Nude by Nature, 3 February 2010 ("free trial" terms and conditions)

A national press ad for a cosmetic product, included the text, "consumers are fast becoming aware that ordinary makeup could be a toxic chemical cocktail. But is mineral makeup always the answer? We take all the risk and don't ask for money up front other than the p&p of £5.95." Small print at the bottom of the ad said "Free trial available to credit and debit card holders only".

Complaint/ decision

The complainant objected to the ad on the basis that, first, the reference to a "free" trial was misleading because recipients were charged £79.95 if the product was not returned within 16 days and secondly, because the recipient was charged £5.99 for postage and packaging.

The ASA upheld both of the complaints. With respect to the first complaint, although BHH argued that the customers could cancel the trial at any time and that information as to the right to cancel was obtainable from BHH call centre operatives, the ASA held that the ad itself contained no such information. Therefore, the ASA found that it was likely to mislead. With respect to the second complaint, BHH argued that the word "free" could be used in instances where customers had the option of collecting the product for free from certain retail outlets, and that this had been possible in relation to their product. However, the ASA noted that, again, the ad itself did not make this information available, and for this reason (as well as the fact that the £5.99 charge was over and above the "unavoidable cost of delivery" and so would be in breach of the code in any event), the ad was likely to mislead.

This adjudication highlights some of the issues which advertisers should take into account when advertising a product as available on a "free" trial, and emphasizes the importance of setting out all of the fundamental terms of the offer in the ad.

COMPUTERS AND TELECOMS

4. Dabs.com, 24 February 2010

A direct mail brochure, for computers, included a Sony VAIO VGN-AW41MF laptop, which was labelled "£789.00". Text on the opposite page stated " ... Check www.dabs.com for latest prices".

Complaint/ decision

The complainant challenged whether the ad was misleading because, having visited the dabs.com website, he believed the laptop was not available at the advertised price.

Dabs argued that the price the complainant had seen on the website was not representative of the price seen in the brochure, due to the fact that their prices were "subject to regular fluctuation and could change daily". They claimed that this was not misleading due to the fact that they had alerted readers that this may be the case by including the phrase, "check www.dabs.com for latest prices".

The ASA acknowledged the inclusion of this phrase, but held that this was not sufficiently clear to inform readers that the prices in the ad were subject to regular change. Notably, the ASA held that in this instance, a printed brochure was an "unsuitable medium" for advertising such products, because it was "likely to remain in circulation after prices had changed".

This adjudication serves as a warning to advertisers who place ads in printed media, particularly where price claims are made, and particularly in publications which may have a long shelf-life. An advertiser must ensure that any offers which may be subject to change in the near future, or at least as long as they may reasonably be expected to "remain in circulation", are supplemented with sufficiently clear information about when such offers are to expire.

5. Virgin Media Ltd, 24 February 2010

A direct mailing for Virgin Media was headlined "You'd need one hell of a reason to switch from Sky. Here are 10 ...". The mailing then listed the ten reasons, which included "Delivering TV, broadband and phone down the same fibre optic cable is better value and keeps everything in one simple bill."

Complaint/ decision

British Sky Broadcasting Ltd (Sky), in yet another complaint in the long-running battle between Virgin Media and Sky, challenged whether Virgin's ad was misleading and could be substantiated because it implied that Virgin offered better value packages than Sky on account of providing services through a fibre optic cable (which Sky argued was not the case), and that, also, the ad (wrongly) implied that it was not possible for customers of Sky to receive a single bill for a selection of services.

Virgin argued that, at the time the ad was aired, their entry-level package was cheaper than that of Sky's, and provided evidence to substantiate this claim. Further, they argued that the ad did not imply Sky customers could not receive one single bill for a combination of services; rather, the claim clarified that all Virgin customers would receive one single bill, which they were entitled to do as to their knowledge, only 80% of Sky customers received a single bill.

The ASA upheld both of the complaints, on the basis that in the context of the ad, customers would understand the claim "better value and keeps everything in one simple bill", to mean that firstly, Virgin offered better services than Sky because of the way the services are delivered (i.e. via fibre-optics), and secondly, that Virgin customers would receive "one simple bill", while Sky customers would not.

This adjudication highlights the strict approach taken by the ASA in instances where an advertiser purports directly to compare its product with that of a competitor. It is notable in this case that, although Virgin did not explicitly mention any details of Sky's product, the ASA felt that an inference could be drawn from the statement anyway. Care should always be exercised when making comparative ads, particularly when competitor challenges are almost inevitable, as it most surely was in this instance.

FOOD AND DRINK

6. Unilever UK Ltd, 17 February 2010

An internet banner ad, for Pepperami salami, appeared on Brand Republic's website and stated "$10 000 TO KILL ME IN THE MOST CREATIVE WAY". A cartoon Pepperami was shown holding a sign that stated "ASSISTED SUICIDE".

Complaint/ decision

The complainant objected that the ad was likely to cause distress and serious offence, in particular to those who had related personal experiences, in light of recent public debates about assisted suicide.

Unilever disputed that the ad was likely to offend or cause distress, on the basis that Pepperami advertising was known for its creative format, and its ads often featured its main character, the pepperami, being killed in various ways before being eaten. Further, Unilever argued that, as the ad was only targeted at the ad industry, rather than the general public, any distress caused because of the sensitive subject matter (if any), would be diverted from public gaze.

The ASA agreed with Unilever's assessment and refused to uphold the complaint, on the basis that it was targeted specifically at people who might want to enter the competition, and who would understand the humour contained within the ad. Although the ASA accepted that assisted suicide was a sensitive issue, it considered that the concept of assisting the suicide of an item of food was "ridiculous rather than offensive".

This adjudication highlights the readiness of the ASA to take a pragmatic approach where potentially offensive ads are carefully targeted, particularly where an ad is targeted specifically at particular industry groups, thereby shielding them from the public eye. The approach of the ASA in this case is similar to that taken in respect of the Ferring Pharmaceuticals case above (see no. 1). Furthermore, the decision also shows that, although the ad featured a particularly distressing and sensitive issue (assisted suicide), its seriousness was mitigated due to the "ridiculousness" of the context in which it was portrayed.

FINANCIAL

7. Loyalty Management UK Ltd t/a Nectar, 24 February 2010 (discrepancy between image of product shown on sales promotion and product sent to customers)

A direct mailing, sent to Nectar card customers, showed products that could be obtained by redeeming points. It included an image of six bottles of wine; text stated "Festive 6 case Six of the best. 7,700 points". Text below stated "Turn points into wine at nectar.com"; small print stated "Terms and conditions apply to all treats shown, visit nectar.com for details".

Complaint/ decision

The complainant challenged whether the mailing was misleading, because he believed the bottles of wine shown in the image were different to those sent to customers.

Nectar argued that due to the size of the image on the ad, it was not possible to read the labels on the bottles, therefore, it was not possible to determine whether there was a discrepancy between the bottles shown on the ad and those sent to customers. They pointed out that the ad included directions to the Nectar website, where they said a clear and full description, including images, of the actual contents of the case was provided. They therefore believed the ad was not misleading.

However, the ASA upheld the complaint, on the basis that the complainant had been able correctly to identify the bottles of wine in the image, and was therefore entitled to assume that that particular brand of wine would comprise part of the offer. Although the Nectar website did indeed make statements such as "wines featured in mailings...are only representative of the wines that may be included...", the ASA commented that this was not made clear enough in the ad itself.

The decision has parallels to a recent ASA adjudication against Play.com ( LawNow, December 2010 issue) (http://tinyurl.com/yfc9bcv), and serves as a reminder of the importance that the ASA places on ad imagery. Advertisers should be extremely careful to ensure that products shown in ads are the same as those which are actually on offer to recipients.

OTHER

8. ITV 3 Ltd, 17 February 2010

Eight ads were shown in an ad break during Sherlock Holmes on ITV3.

Complaint/ decision

The complainant challenged whether the ads were excessively noisy compared to the surrounding programme material.

ITV argued against the complaint on the basis that, although the programme featured long periods of quiet to build up suspense/ drama, the loudest parts of the programme were as loud as the loudest parts of any of the ads which were shown during commercial breaks (in line with applicable regulations). They pointed out that they were not required to police content that was quiet for "dramatic, editorial or impact-related purposes", and that they believed the loudness of the ads was "appropriate and consistent in the context of the overall loudness of the channel".

However, perhaps somewhat surprisingly, the ASA upheld the complaint, on the basis that ITV had breached Rule 6.9 (sound levels in advertisements) of the CAP (Broadcast) TV Advertising Standard Code, which requires a subjective assessment of whether any "perceived imbalances" are apparent between the loudness of a programme, and of the surrounding ads.

This decision highlights the difficulty advertisers may have in subjectively assessing what is 'too loud', in respect of the loudness of ads under Rule 6.9 of the CAP(B)TC Code. Indeed, it should be noted that not only should advertisers/broadcasters take into account the maximum loudness levels of the surrounding programme, but they should also look at the mood and style of the surrounding programme, when deciding which ads are appropriate for inclusion, which might be quite burdensome. Note also that ITV have stated that they are "working with broadcasters and the broader advertising industry" to establish clearer and more consistent working practices going forward.

9. No Added Sugar Ltd, 24 February 2010

A children's clothing catalogue for a new winter range used the theme of rubbish, concentrating on the type of things that people throw away on a daily basis, including empty plastic carrier bags and refuse sacks full of waste. It showed various pictures of children sitting in close proximity to coloured rubbish bags or holding items of rubbish on or near their heads.

Complaint/decision

Six complainants objected that the catalogue was irresponsible because it featured images of children with plastic carrier bags on or near their heads, an action which could be copied by children, leading to their physical harm.

No Added Sugar Ltd argued that the ads were not irresponsible because they were stylised and modern and in line with the context of the catalogue story. They argued that the catalogue was directed entirely at adults who would purchase clothes for a child and that the images were not intended to be anything other than a "playful tribute" to the 'rubbish' theme.

The ASA upheld the complaint. Although recognising that the ad would be targeted at adults, it considered that it was likely that children would, in some circumstances, have access to the catalogue. The ASA noted in its assessment that, although adults would be likely to understand the "tongue-in-cheek" theme, children would not, and may try to copy the actions of the children in the ad, which warranted an unacceptable safety risk.

Although we have seen recent decisions which have reflected a more lenient approach from the ASA where potentially distressing or harmful ads are targeted at specific individuals (for example see the Ferring decision at 1 above), it appears that the ASA is less likely to display such leniency where the safety of children is put at risk. It is also interesting to contrast this with the decision of the ASA in the Coca-Cola ad featuring Duffy in June 2009 (http://tinyurl.com/yj9r9z8), where an ad showing the pop star cycling without a helmet was adjudged as acceptable, on the basis that the surrounding environment in the ad was so dream-like and fantasy-based, that it was unlikely to be seen as a realistic scenario suitable for emulation.

10. Associated Newspapers Ltd t/a The Mail on Sunday, 3 February 2010

A promotion in the Daily Mail, for an MP4 player, stated "FREE WITH The Mail ON SUNDAY ... MP4 VIDEO PLAYER ... Get YOUR MP4 video player FREE with tomorrow's The Mail ON SUNDAY". Smallprint next to an image of the MP4 player stated "TOKEN COLLECT AND *P&P APPLIES".

Complaint/decision

The complainant objected that the ad was misleading, because it implied that the MP4 would be free with the Mail on Sunday when it was, in fact, a token collect promotion.

The Daily Mail argued that the ad clearly made reference to a token collect scheme being in place, as evidenced by the footnote, and that therefore, the ad was not likely to mislead customers.

The ASA upheld the complaint, and determined that, because the footnote was of "very low prominence" and because the information in the footnote contradicted rather than qualified the headline offer, the ad was likely to mislead.

This adjudication should be noted by advertisers who regularly offer token collect schemes, as it would appear that the ASA are taking a strict approach to ensure that the exact nature of such offers is communicated clearly and prominently to avoid any ambiguity.

11. People for the Ethical Treatment of Animals (PETA) Foundation, 3 February 2010

A poster for an animal rights campaign group featured a picture of Steven Barker, the individual found guilty in the well-publicised case of Baby P (who was abused and killed). Text next to the picture stated "Steven Barker: Animal Abuser, Baby Abuser, Rapist. PEOPLE WHO ARE VIOLENT TOWARDS ANIMALS RARELY STOP THERE". Further text underneath stated "Report cruelty to animals immediately PeTA".

Complaint/decision

The complainant challenged whether the ad was offensive and distressing, used unnecessary shock tactics and exploited the death of Baby P. It was also argued that the ad, which was also displayed in the area where Baby P lived and died, was particularly offensive and distressing to residents of that area.

PETA argued that there was empirical evidence to show a tendency of people who commit violent acts towards animals, to go on and perpetrate violent crimes against humans, and that therefore, animal abuse should not go unchallenged. They argued that Steven Barker had been known to torture animals as a child, and had been convicted by the courts of the abuse of Baby P and the rape of another child. PETA emphasised that, although the ad would inevitably cause some fear and distress, it was designed in such a way so as to be as straightforward as possible, without any sensationalist imagery.

The ASA upheld both of the complaints, on the basis that ads should not cause fear and distress "without good reason", and that in this instance, the shock tactics used in the ad were tantamount to being "exploitative".

This decision highlights the importance of targeting, and can be compared with several cases involving charities (see for example the Motor Neurone Disease Association June 2009 decision (http://tinyurl.com/yh9we3f) and the Barnardos December 2008 decision) (http://tinyurl.com/yzeswhd) in which the ASA allowed ads to remain in current form, even though the subject matter of each could be considered distressing.

12. Autoglass Ltd, 10 February 2010

A TV ad, for a windscreen repair service, showed a windscreen chip being repaired. A man said "If you call Autoglass as soon as a chip appears, we can come to you and usually repair the windscreen without replacing it. We inject our special resin and in just 30 minutes the result is almost invisible and the windscreen is strong again ...". The repair made the chip virtually invisible.

Complaint/decision

The complainant challenged whether the ad was misleading, because he did not believe that such repairs could make windscreen chips "almost invisible".

Autoglass argued that the use of the word "almost" in this context, represented a qualification which left scope for a subjective assessment of the effectiveness of the product. They also maintained that the ad's depiction of the repair was representative of normal results, and provided a wealth of evidence of "before and after" photographs to prove exactly how well the product had worked in the past.

The ASA rejected the complaint, and agreed with Autoglass's assessment that the use of the term "almost invisible" was subjective, and that viewers would understand that the results of the repair process would not be uniform. This assessment came after a detailed analysis of the evidence provided by Autoglass, which vindicated Autoglass's assertions about the effectiveness of the product.

This adjudication offers interesting guidance as to the importance of qualifying statements made when describing the effectiveness of products, so as to allow for a subjective assessment by the viewer/ reader.

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 22/03/2010.

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