Nationwide's Ad Campaign Promotes Competition And Consumer Choice. So Was The ASA Wrong To Uphold Santander's Complaint?

GA
Global Advertising Lawyers Alliance (GALA)

Contributor

With firms representing more than 90 countries, each GALA member has the local expertise and experience in advertising, marketing and promotion law that will help your campaign achieve its objectives, and navigate the legal minefield successfully. GALA is a uniquely sensitive global resource whose members maintain frequent contact with each other to maximize the effectiveness of their collaborative efforts for their shared clients. GALA provides the premier worldwide resource to advertisers and agencies seeking solutions to problems involving the complex legal issues affecting today's marketplace.
One of the most amusing ad campaigns of the last 12 months has been the one created by New Commercial Arts for the Nationwide Building Society.
Worldwide Media, Telecoms, IT, Entertainment
To print this article, all you need is to be registered or login on Mondaq.com.

One of the most amusing ad campaigns of the last 12 months has been the one created by New Commercial Arts for the Nationwide Building Society. The purpose of the campaign is to highlight that Nationwide is the only major bank or building society to make a promise to keep open its branches until at least the end of 2026. When the campaign was launched in October 2023, that was a commitment for more than 3 years. So it is disappointing that the Advertising Standards Authority has upheld a complaint by Santander over relatively minor flaws in the ads which fall short of meeting the CAP and BCAP Code tests of being 'materially misleading', enabling Santander to stifle competition and consumer choice "on the cheap".

What did the TV commercial claim?

The campaign included TV, radio, and press ads, but the TV ad has attracted the most attention, partly because of the comedic quality of NCA's script, and partly because the bravura performance of its star, Dominic West, playing the archetypal banker, in both the literal and the cockney rhyming slang sense. Dominic is famous for his dramatic roles, such as Prince (now King) Charles in The Crown, as well as staring in The Wire and The Affair. But who knew that he is also such a talented comic actor?

The TV ad opens with a shot of a gleaming glass office block bearing the legend "A.N.Y. BANK". Cut to an interior shot of an individual office with an exchange between the boss, played by Dominic, and his executive assistant (also played brilliantly by comedian Sunil Patel). They start by discussing the boss's unconscionably large expenses claim following a fat lunch with his c-suite colleagues. The conversation then takes a turn to more serious matters:

Boss: "Anyway cutbacks, initial thoughts, downsizing, I could make do with this office here I suppose, but that big space downstairs is? A bit over indulgent nowadays isn't it?"

Assistant: "By downstairs do you mean, closing the actual branch?"

Boss: "Mmmmhmm."

Assistant: "But Nationwide aren't."

Boss: "But we're not Nationwide are we, we're nothing like them"

On-Screen text: Publicly shared branch closures at Lloyds, Bank of Scotland/Halifax, Natwest, Barclays, Santander and HSBC.

Voiceover: "Unlike the big banks we're not closing our branches."

On-Screen text: Visit Nationwide.co.uk/ourpromise. Valid until 2026

What is Nationwide's 'Branch Promise'?

Nationwide's 'Branch Promise' was first launched in 2019, but subsequently renewed and strengthened to become a promise not to close any of its branches until at least the end of 2026. The claims in the ads are expressed in the present tense, not the past tense, and they are forward looking. The ads don't discuss the past, only that Nationwide is not closing branches at present.

Nationwide's last branch closure prior to the launch of the campaign was in April 2023, 6-months before. Only 2 branches had closed during the calendar year 2023, one of which was because the landlord terminated the lease on the building. Nationwide (and Clearcast and the Radiocentre) believed this 6-month gap would be consistent with the expectations of the Average Consumer, who would interpret the Branch Promise as meaning that no branches are being closed presently (or in the recent past), and that going forward, no branches will be closed branches until at least the end of 2026.

What was Santander's complaint?

Santander, who understood that Nationwide had 'recently' closed or reduced opening hours at some branches, challenged whether the ads were misleading. After submitting its complaint to the ASA, Santander then publicised that fact to the media, which garnered some coverage in the newspapers. While not strictly a breach of the ASA's competitor complaints procedure, this publicity is not in accordance with the spirit of it either. The ASA's primary sanction following an upheld complaint is negative publicity, but Santander jumped the gun, resulting in a substantial number of consumer complaints as well. The ASA does not explain the nature of these complaints, but it is safe to assume that consumers were not concerned that Nationwide was being unfair to Santander, let alone the other Big Banks named in the ad. Although some may have been concerned about the reduced opening hours at some Nationwide's branches, that issue was not pursued by the ASA, who accepted the Financial Conduct Authority's view that reducing opening hours is better for consumers than closing branches and not tantamount to closure.

Santander's only complaint about the campaign was their belief that when the campaign was launched, Nationwide had 'recently' closed or reduced the opening hours at some of their branches. Santander raised no concern about whether consumers would appreciate that the Branch Promise is currently planned to end in 2026, or about what will happen after it expires.

Santander was also the only bank named in the ad to complain. Neither Lloyds, Bank of Scotland/Halifax, Natwest, Barclays nor HSBC complained, but then they've all announced additional branch closures since the campaign was launched. Santander have pointed out that they have not formally announced any additional branch closures since October 2023, but crucially, unlike Nationwide, they have not made any promise not to do so.

Why did the ASA uphold the complaint?

The ASA provides its rationale for upholding the complaint at the end of the Adjudication, stating that "Because we considered that consumers would understand from the ads that Nationwide would not be closing branches in the long-term future and that they had not recently closed their branches, we concluded that the ads were misleading."

So let's look at those two reasons, but in reverse order.

How long is the 'recent past' in the mind of the Average Consumer?

The claims in the TV ad are expressed in the present tense and the Branch Promise is forward facing. It is reasonable to assume that the Average Consumer, who is "reasonably well-informed, observant and circumspect" would assume that the claim "Unlike the big banks we're not closing our branches" covered a period starting sometime before the first air date, but how long before? In my opinion, 6 months is a reasonable period. Instead, the ASA chose to consider the 12 months prior to the launch of the Ads, despite the forward-looking nature of the claims and the use of the present tense. In doing so, the ASA adopted the time scale selectively advocated by Santander to confer an artificial advantage on themselves, because during that period Nationwide had closed more branches than Santander. But the ad wasn't about history, it was about the present day, and an express promise not to close any more branches for the next 3 years.

The ASA also appears to have been unduly influenced by the fact that "at the time the ad was seen Santander had not announced that they would be closing branches in the future." Although Santander may not have announced any further branch closures, they have already cut their estate by 63% over the last 10 years, compared with a 20% cut by Nationwide over the same period. And Santander have conspicuously failed to match Nationwide's express commitment not to close any more branches in future, whether for 3 years or longer. And that is the point of the ad campaign.

How long would the Average Consumer expect the Branch Promise to last?

When the campaign launched, the branch promise was expressed to last until at least 2026, i.e., at least 3 full years. The super at the end of the TV ad clearly stated, "Valid until 2026." This super complied with Clearcast's rules for both the font size and the duration of hold. The press ad includes small print which stated, "If we have a branch in your town or city, we'll still be there until at least 2026."

It is true that the radio ad omitted a reference to the 2026 date, and it would have been open to the ASA to uphold the complaint in relation to the radio ad alone, but not the TV or press ad. Instead, the ASA came to the strange conclusion that, "we considered the qualifications would be likely to be missed..... Had the timeframe been made clearer in the ads, we considered that would likely have overridden the impression that the Branch Promise related to the longer term." It is important note that Santander did not complain that the 2026 date was unclear. And as far as we know, neither did the consumers who complained. Given Nationwide had complied with the Clearcast rules for supers, this rationale is worrying. It creates considerable uncertainty about what an advertiser must do to ensure that a qualification is sufficiently prominent. Presumable the ASA is not saying the current Clearcast rules must be changed, so what should have been done differently? And was the ASA justified in adding this point to a competitor complaint?

Again, the question is what would the Average Consumer expect having seen the ad? Even if they had failed to notice the reference to 2026 in both the TV and press ads, there is no reason to suppose that they would assume the Branch Promise is the equivalent to a marriage vow, to keep every branch open 'for as long as we both shall live'. The Adjudication says that after 2026, Nationwide could start to close branches, as if that would be news to the Average Consumer, and which is why the ads included an end date. In fact, Nationwide has no such plans to close branches after 2026 - and has now announced that the Branch Promise has been extended to 2028; but that does not seem to have carried as much weight with the ASA as the fact that Santander has not announced any closures, even though it could do so at any time.

Competition or consumer protection?

Reasonable people might disagree about the appropriate duration of the gap between Nationwide's last branch closure and the launch of the campaign, but the absence of any announcement by Santander of an intention to close branches is not equivalent to Nationwide's promise not to do so. There is no evidence that the average consumer would not see or understand the significance of the end date of the Branch Promise and that does not appear to be an issue raised by Santander or consumers.

The bigger picture is that consumer interests are served by promoting competition between banks. One important element of that competition concerns branch networks, particularly against the background of widespread branch closures over the last decade or more. Rather than competing with Nationwide by matching its expensive promise to maintain its branch network, Santander took the much cheaper decision to lodge a complaint with the ASA. Was this in the interests of consumer? No. It was in the interests of Santander.

The CAP and BCAP Codes are only infringed if a claim is materially misleading, so an ad that promotes competition and choice should not be banned over minor flaws or technicalities, as that is not in the interests of consumers.

{Nationwide said: "We recognise the ASA's decision and are delighted to have the opportunity to make even clearer our now extended branch promise to keep every branch open until the start of 2028."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More