This article provides a selection of the most interesting ASA adjudications from November and a summary of the key issues considered in those adjudications.
A number of the adjudications where complaints were upheld relate to adverts on posters featuring images of a sexual nature. The impact of the Bailey Review can clearly be seen in relation to these adjudications.
To view the article in full, please see below:
Full Article
This article provides a selection of the most interesting ASA adjudications from November and a summary of the key issues considered in those adjudications.
A number of the adjudications where complaints were upheld relate to adverts on posters featuring images of a sexual nature. The impact of the Bailey Review can clearly be seen in relation to these adjudications.
ADJUDICATIONS
COSMETICS
1. Unilever UK Ltd, 23 November 2011
This adjudication concerned a poster for Lynx shower gel featuring
a picture of a young woman standing under an outdoor shower on a
beach wearing a bikini with the model clasping the undone bikini
top to her chest. The text on the advert above a large bottle of
the product stated "The cleaner you are the dirtier you
get" and text at the bottom of the advert stated "Visit
Facebook.com/lynxeffect and get dirty this summer".
Complaint/Decision
The ASA received a total of 113 complaints about this advert.
The complainants challenged the advert on the following
grounds:
1) whether the advert was offensive because it was sexually
suggestive, provocative, indecent, glamorised casual sex and
because it objectified women;
2) whether it was irresponsible because it was inappropriate for
public display, where it could be seen by children; and
3) whether it was irresponsible because it promoted
promiscuity.
The ASA upheld the complaints in relation to the first two
complaints, but not the third.
Whilst the ASA considered that the poster was not graphic or
indecent, they considered that the suggestive text particularly
placed next to the image of the women with the unfastened bikini
was clearly intended to imply that using the Lynx product
"would lead to more uninhibited sexual behaviour". The
ASA therefore considered that the poster objectified women because
consumers to make a link between purchasing the product and sex
with women. The ASA also considered that the combination of the
image, the suggestive text and the fact that the advert was in a
poster form on public display was likely to offend many members of
the public, particularly those accompanied by children. The ASA
concluded that the poster was therefore likely to cause serious or
widespread offence.
For the same reasons, despite the efforts made by Clear Channel to
limit the locations of the advert (the poster was not displayed
near any schools to minimise the exposure to children; in areas in
which there was a majority ethnic population or those areas near to
religious places of worship, to reduce any cultural or religious
sensitivities; or in areas in which they had received complaints
regarding ads before) the ASA considered that the advert was not
suitable for display in places where it might be seen by children.
The ASA was particularly concerned that a number of the complaints
received had been from complainants who had had the adverts pointed
out to them by their young children, or had been asked by them to
explain the meaning of the text. However, despite receiving 12
complaints on the issue, the ASA did not consider that the advert
was irresponsible in promoting promiscuity because it did not
feature a sex scene or suggest that unprotected sex/ sex with
multiple partners was desirable.
The billboard owners, CBS Outdoor, had sought a view from CAP Copy
Advice prior to displaying the adverts. There was some discrepancy
as to the content of this advice. Unilever submitted that it
understood that CAP Copy Advice had advocated caution but not given
a definitive comment either way and in light of that advice
Unilever had concluded that the poster was unlikely to cause
serious or widespread offence. The ASA in the adjudication said
that CAP Copy Advice had told CBS that it was likely that the
poster would generate complaints which would be passed onto the ASA
investigations team. They had been informed that the combination of
the image and the tagline in an untargeted medium were quite likely
to be problematic.
The ASA had previously considered two TV adverts from the same
campaign which it had found did not warrant investigation. However,
the previous adjudication had been in part due to the fact that
those adverts had been subject to viewing restrictions which meant
that children were less likely to see them. In contrast posters are
an untargeted medium and likely to be seen by a variety of age
groups. The ASA considered that this advert should be considered on
its own merits and outside the context of the wider campaign.
Potentially suggestive or sexual advertising in outdoor sites are
particularly sensitive areas following the Bailey Review and the
establishment of the Advertising Association's ParentPort
(insert link to www.parentport.org.uk). In response, the ASA
altered its approach to this type of
outdoor advertising and published guidelines as to what is
likely to be acceptable and what is likely to be more problematic.
As ever with adverts which are potentially offensive, targeting is
key. Marketers should consider carefully the medium used when
creating adverts. What may be acceptable in one medium could be
deemed inappropriate in others.
2. Unilever UK Ltd, 23 November 2011
This adjudication concerned a campaign related to the Unilever Lynx
advert above, and concerned five internet display adverts (on
Yahoo!, Hotmail, Rotten Tomatoes, Anorak and Spotify) for Lynx Dry
Full Control deodorant. Each of the adverts showed Lucy Pinder,
carrying out various activities including getting dressed, washing
a car, eating ice cream and standing under a washing line. Each
scene showed her wearing outfits that revealed her cleavage. Each
of the adverts included text such as "Can she make you lose
control? Put the premature perspiration to the test" or
"What will she do to make you lose control?", "Lucy
Pinder [blank]ing makes me prematurely perspire" and
"Play with Lucy".
Complaint/Decision
Ten complainants challenged whether the adverts were offensive
because they were sexually provocative and degrading to women and
whether the adverts were irresponsible because they were
inappropriately located on sites that could be viewed by
children.
The complaints about the adverts being offensive were all upheld.
Although the ASA accepted Unilever's argument that the adverts
were intended to be tongue-in-cheek, it considered that the various
activities carried out by Ms Pinder were presented in a sexually
provocative way and were likely to be seen as objectifying women.
The suggestive text that accompanied the images were also likely to
be seen as objectifying women and degrading to them and so the
adverts were likely to cause offence.
In consideration of the targeting of the adverts, in relation to
the adverts as placed on the Rotten Tomatoes and Anorak sites, the
ASA noted that it had not been provided with evidence to
demonstrate that the proportion of users of these sites were over
16. In addition, because they understood that these sites were not
protected by age verification procedures or similar targeting, the
ASA considered that the adverts could be viewed by a wider
audience. Because the ASA considered the adverts to be unsuitable
and could be seen by children, the complaints that the adverts were
irresponsible in this respect were upheld.
However, in relation to the adverts that were placed on Hotmail,
Yahoo! and Spotify, the ASA noted that Hotmail targeted the adverts
at males between 16 and 25 and that 94% of Hotmail users were over
15 and 91% over 18. It was also noted that Yahoo! had targeted the
adverts at males over the age of 18. In relation to Spotify, the
advert was targeted to users over 16 and, upon registering, Spotify
users had to verify their age.
As a result of these controls, and despite the concern that the
adverts were likely to cause offence, the ASA considered that the
adverts as placed on these websites were unlikely to be seen by
those under the age of 16 and therefore concluded that they were
not irresponsible on those grounds.
As with the previous adjudication, this adjudication demonstrates
the significance of targeting adverts to the appropriate
demographic. The age verification procedures and targeting
capabilities of online platforms must be sufficiently researched by
a marketer to ensure all reasonable steps are taken to protect
children. However, the content of this advert was still considered
to be offensive, regardless of where it was screened.
It is also interesting to note that Unilever have used the adverse
adjudication to gain further publicity for the brand. In response,
they issued a tongue-in-cheek video featuring Lucy Pinder fully
clothed wearing a long sleeved woolly jumper, returning the props
used in the original advert, including cheerleader pom poms and a
monkey toy. Ms Pinder apologises for any offence caused by the
online adverts whilst a breaking news style ticker tape runs across
the bottom stating: "Lynx apologises for any offence
caused".
3. L'Oreal (UK) Ltd t/a Lancôme Paris,
23 November 2011
This adjudication concerned a magazine advert for mascara featuring
three models and text stating "Lancôme Paris Dreaming of
a Doll Lash effect? Hypnose Doll Eyes Doll Lash Effect Mascara
– Wide-Eyed Look..."
Complaint/Decision
A member of the public and Jo Swinson MP, who has been
significantly involved in a campaign against misleading advertising
images for cosmetics and recently had two complaints upheld against
L'Oreal brands Lancôme and Maybelline [insert link to ASA
Snapshot July 2011], challenged whether the advert was misleading
because, in their opinion, it exaggerated the effect of the product
beyond that which the ordinary consumer would be able to
achieve.
The ASA did not uphold this complaint. The ASA acknowledged that
consumers expected professional stylists and photographers to have
been involved in creating images featured in adverts for beauty
products. Lancôme had also submitted pictures from laboratory
testing and consumer-use tests that demonstrated that the product
could enhance lash length and volume.
Although Lancôme used post-production techniques to add
length to some individual lashes to create a uniform lash line and
tidy up the look of the lashes, including replacing damaged or
missing lashes, they had not added any volume or lash thickness and
no lash inserts had been used. The ASA was satisfied that the lash
length did not exceed the likely consumer expectations as to what
is achievable. As a result the advert was considered
"accurately" to illustrate the effects of the product and
was not misleading.
Although contested by Jo Swinson, this adjudication shows a
somewhat more sensible approach by the ASA, reminiscent of an
adjudication also for L'Oreal, back in 2002, before the current
furore about the use of post-production procedures, when the ASA
concluded it was not misleading to use post-production techniques
to fill in gaps in Kate Moss' eyelashes.
This adjudication can be distinguished from the previous
adjudications in July 2011 because the evidence provided allowed
the ASA to reach the conclusion that the advert accurately
demonstrated what the product could achieve, whereas in the July
adjudications this was not the case. This adjudication demonstrates
that reasonable enhancements to photographs featured in beauty
product adverts are permitted, provided that these do not
exaggerate the effects of the products and there is sufficient
evidence to substantiate such effects.
4. My City Deal Ltd t/a Groupon, 23 November
2011
The ASA considered an email promotion offering discounted cosmetic
surgery procedures. The promotion was stated to be valid for one
day only. When clicking on the details of the promotion, the
consumer was re-directed to the Groupon website that included fine
print that stated that once the discount voucher was purchased, the
user had 6 months to redeem it before it expired. The page also
stated "Altering the physique needs a lot of careful
consideration..."
Complaint/Decision
The Independent Healthcare Advisory Services and one member of
the public challenged whether the offer was irresponsible because
it encouraged recipients to hurry into a decision to purchase
cosmetic surgery.
The complaint was upheld. The ASA noted that Groupon had taken
reasonable steps to ensure that when a voucher was purchased, the
consumer had the opportunity to contact the cosmetic surgery clinic
for advice and that they also encouraged the consumer to seek
independent advice about any such procedures.
However, the ASA noted that the Marketing and Advertising Code of
Ethics of the British Association for Aesthetic Plastic Surgeons
prohibited discounts with a deadline date for booking appointments.
Similarly, these types of adverts went against the General Medical
Council's good practice guide.
Whilst the advert made clear that the offer was available only to
over 18s, the ASA understood that it may have been sent to those
who had not previously considered having cosmetic surgery. The ASA
considered that the decision to undergo physically invasive
procedures was one that required substantial consideration. The ASA
understood from BAAPS that multiple consultations were required
before proceeding with a cosmetic surgery procedure, and that, in
some cases, candidates could be referred to a clinical psychologist
to help assess their suitability for surgery. Once the surgeon and
candidate were satisfied that they were suitable for surgery,
candidates were even then advised to wait a minimum of two further
weeks before booking and going ahead with the procedure. Although
once purchased consumers had six months in which to redeem the
voucher and to consider their decision before confirming their
appointment with the clinic, they only had 24 hours in which to buy
the voucher (at a cost of £1,999). As a result, the ASA
considered that the consumer would only have a very short period of
time in which to decide whether he or she was financially and
mentally committed to going ahead with a cosmetic procedure.
As a result they considered that the very limited time available in
which to purchase the pressured consumers into making a decision to
(to all intents and purposes) purchase cosmetic surgery. The ASA
therefore concluded that the advert was irresponsible.
It is interesting to see the ASA relying on industry guidance in
their decision. Although the concept of very limited time offers is
not in itself irresponsible, where the offer concerns an invasive
treatment or substantial decision which would usually require a
particularly in-depth decision-making process, such time limits can
be inappropriate. This is yet a further adjudication upheld against
Groupon – a total of 13 in the last 11 months (plus 40
informally resolved complaints).
5. Coty UK Ltd, 9 November 2011
This adjudication concerned a magazine advert (for ES magazine and
Sunday Times Style magazine) for "Oh, Lola!" perfume,
featuring actress and model Dakota Fanning, sitting on the floor
alone wearing a pale coloured thigh length dress. She was leaning
backwards supported by one arm and in the other hand she is holding
an oversized bottle of perfume that is resting on her lap.
Complaint/Decision
Four readers challenged whether the advert was offensive and
irresponsible because it portrayed the young model in a sexualised
manner.
The complaint was upheld. Coty informed the ASA that they had not
received any complaints and that they did not believe the styling
suggested the model was underage or that she was inappropriately
sexualised, in particular because no private body parts were shown
and there are no images of sexual activity. Coty also stated that
the adverts were used in highly stylised fashion magazines where
readers would be over 25.
The ASA noted the point regarding the target readership. However,
they considered that the position of the perfume bottle being held
on the model's lap between her legs was sexual provocative and
the short dress, showing part of her right thigh drew attention to
her sexuality. Although the model was 17, the ASA considered that
she looked 16. As a result the ASA considered that the advert had
the effect of sexualising a child and was therefore
irresponsible.
This is yet another adjudication made in light of the Bailey
Review. Although the adjudication may well have been upheld prior
to the review, advertisers will now have to take particular care
with this type of advertising. This advert was not a billboard and
yet the complaint was still upheld. It is not clear whether the
result might have been different had the advert appeared in a more
targeted magazine.
Advertisers must consider how old the model looks as well as how
old he or she is. Even if he or she is over the required age, the
ASA may still deem the advert to be inappropriate if he or she
looks younger.
LEISURE
6. Warner Music UK Ltd t/a Atlantic Records, 23
November 2011
This adjudication concerned a magazine advert for a music CD that
contained a review of the CD by a magazine that used the phrase
"A Rousing Roaring Return".
Complaint/Decision
The complainant believed that the advert was misleading because
the text "A Rousing Roaring Return" was not part of the
text that appeared in the magazine review and therefore
misrepresented the conclusions of the review.
The ASA upheld the complaint. Warner Music argued that although the
quote was not contained in the review in the issue of the magazine
in which the advert appeared, it was a verbatim excerpt from a
review of the first single from the album, which appeared in an
earlier issue of the magazine. Warner Music considered it
reasonable to assume that the review of the album would have been
at least similarly positive to the review of the single. In
addition, because the review and the advert were appearing in the
same issue they said that the team creating the advert would not
have had prior knowledge of the contents of the review.
The ASA that it was inappropriate to use the review of one track of
an album to advertise the whole CD. The review should have been
attributed to the single only. Therefore the advert was found to be
misleading and not substantiated.
It is important that reviews of products relate to the exact
product in an advertisement. Reviews of one product should not be
extrapolated for use in relation to another similar or related
product. It is certainly worth noting that, in this instance, the
tone of the review of the album CD differed from that of the single
being advertised.
7. Rage Media Ltd t/a The Skinny, 23 November
2011
The ASA considered a promotion to win a tablet in The Skinny
magazine. The promotion related to the Edinburgh International
Science Festival and stated that in order to celebrate the opening
of the festival, a Samsung Galaxy Tablet PC was available to one
reader. The terms of the promotion stated that the closing date for
entry was 30 April 2011. The promotion stated that other terms were
available on the website and stated that "Winners will be
notified via email after the closing date and prior to the expiry
date of the prize".
Complaint/Decision
The Institute of Promotional Marketing challenged whether the
competition had been administered fairly because the winner was
given under one week to respond to the promoter. The original
winner had not been able to respond in time because she was away on
holiday.
The complaint was upheld. Rage Media stated that they regularly ran
promotions and each prize required different response times, for
example some prizes were tickets so needed to be claimed before the
performance date. They believed that they had given a reasonable
time for the original winner to respond, in light of the average
response times of competition winners generally.
The ASA recognised that some prizes were time specific and may
require a short deadline, however, this was not the case with the
promotion in question. Significantly, neither the advert nor the
T&Cs included a date by which the winner must claim their
prize. Since the winner had been given under a week to claim the
prize, and since there had been no indication that there was a
deadline for claiming the prize, the time limit was unreasonable.
Therefore the ASA concluded that promotion had not been
administered fairly.
Unreasonable deadlines in relation to promotions and, in
particular, in relation to claiming prizes will not be considered
acceptable by the ASA. Any deadlines imposed must be specified in
at least the terms and conditions, if not the advert itself.
8. Northern & Shell plc t/a OK!, 30 November
2011
The ASA investigated complaints made in relation to three
television adverts for OK! magazine. The adverts featured images of
the magazine's content and a voice-over which included
"World exclusive – TOWIES Lauren speaks for the
first time about aborting Mark's baby..."
Complaint/Decision
Ten complainants considered the adverts to be offensive and
irresponsible because they trivialised the topic of abortion. In
addition, two complainants challenged whether the adverts were
suitable for broadcast before 7pm.
The complaints were not upheld. The voice-over in the adverts had a
"sing-song voice" which, in the ASA's view,
represented the gossip style of the magazine. Whilst the ASA noted
that some viewers would consider the overall tone of the advert to
be sensationalist and to consider the presentation of abortion as
distasteful, the ASA considered that the majority of viewers would
understand that the presentation of the story reflected the content
of the gossip magazine and that it was not an article that was
seeking to address the moral arguments for or against abortion. On
this basis the ASA concluded that the advert was not irresponsible
or likely to cause serious or widespread offence.
The adverts had an ex-kids timing restriction (i.e. they were not
to be shown on children's channels or around children's
programmes). The ASA considered that the advert did not need to be
kept away from times when older children would be watching
television, and therefore concluded that the ex-kids timing
restriction was sufficient.
The mere mention of a controversial issue in a light-hearted manner
will not necessarily be considered by the ASA to be offensive to
the public if the viewers/ readers would readily understand the
advert in the context of the product/ service (for example, in a
gossip magazine).
9. Merlin Entertainments Group Limited, 30
November 2011
This adjudication concerned a poster for an interactive movie
experience at Madame Tussauds featuring images of superheroes with
text around the image stating "Amazing"
"Stupefacente", "Ersaunlich" and "A ne pas
manquer". Under each word were five stars.
Complaint/Decision
A complainant challenged whether the advert was misleading
because the use of five stars under each word implied that the
experience had received positive reviews from critics.
The complaint was upheld. The ASA noted that the poster was an
imitation of a movie poster. Unlike movie posters the comments were
not attributed to any critic. However, the ASA considered that
readers would be aware of this and the fact that the comments
instead related to reviews from visitors to the experience.
The ASA acknowledged that the phrases used on the poster were
comments left by guests and the average rating given by guests was
9.4 out of 10. Merlin said it had used an artistic licence to
translate these ratings into 5 stars. However, the ASA considered
that the phrases in Italian, German and French implied that
visitors from those countries had made the comments, whereas the
ASA understood that these were merely translations of comments that
were made in English. Furthermore, the ASA considered that the five
stars featured under the four phrases implied that four people had
rated the experience as being five star, however, they understood
that visitors had not been asked to rate the experience according
to a star rating system. Therefore, the ASA found that the poster
gave the impression the comments were genuine quotes from visitors
to the experience. Because this was not the case, the ASA concluded
that the advert was misleading.
When including positive feedback in adverts it is not necessarily
essential to indicate where the feedback has come from when this
can be readily interpreted by the consumer. However, the
endorsements used in the advert should accurately reflect the
rating system and feedback originally obtained.
FASHION
10. Prada Retail UK Ltd t/a Miu Miu, 23
November 2011
This adjudication concerned an advert in Tatler Magazine for Miu
Miu that featured the young model and actress, Hailee Steinfeld. In
the advert, Hailee was shown sitting on railway tracks, looking
upset and like she may have been crying.
Complaint/Decision
One complainant considered that the advert was irresponsible
because it was suggestive of youth suicide, and they were
particularly concerned that the advert may be seen by
impressionable young people. In addition, the ASA challenged
whether the advert was irresponsible because it showed a minor in
an unsafe location.
The first complaint was not upheld, but the second complaint
was.
Prada stated that the photos were part of a campaign based on an
imaginary film and that the photos were "between takes"
shots, in which the model was acting in an unconscious manner and
not posing and she had not been asked to look upset.
The ASA noted that he advert contained stylised images of the model
dressed in 1940s adult clothing and the Miu Miu brand was not aimed
at teenagers or children. The ASA considered that because the
advert was targeted at a high fashion magazine with mainly adult
readership, the readers would understand that the image was
sufficiently removed from reality and that it represented a staged
fashion shoot. The ASA therefore took the view that the advert was
not suggestive of youth suicide.
The ASA noted that the image was of the model on an abandoned
railway train track and it clearly showed that no train was in
sight, in addition, it was clear that the model was not constrained
in that position, that she was not playing on the railway track,
and the advert was placed only in serious high fashion magazines
which were not aimed at children. However, because the model was
only 14 when the photograph was taken and the scene depicted a
potentially hazardous situation, the ASA concluded that the advert
was irresponsible.
The ASA is particularly strict in applying rules to adverts that
depict children, even when such adverts are specifically aimed at
an adult audience. In this case the ASA expressed no overt concern
in the adjudication that the advert would be seen by children, but
still managed to reach the conclusion that actually showing a child
in a potentially dangerous situation was irresponsible.
11. Marks & Spencer plc, 30 November
2011
This adjudication concerned two posters on buses, advertising
lingerie. Both posters featured two images of two women wearing
lingerie in different poses. The first advert featured a close up
of a woman lying on her side and a woman kneeling on a bed. The
second advert featured a close up of a woman lying on a bed with
her legs slightly apart, and a second woman sitting on a bed.
Complaint/Decision
Several complainants argued that the first advert was offensive
because the images were overtly sexual and objectified women. In
addition, several complainants challenged whether both adverts were
suitable for display on posters on buses, as the images were
sexually suggestive and likely to be seen by children.
The ASA upheld only one of the three complaints. In relation to the
first complaint, the ASA noted that there was no explicit nudity
and considered reasonable to feature women wearing underwear in an
advert for lingerie. In the context of a lingerie advert they
considered that viewers would be less likely to view the images as
gratuitous and having the effect of objectifying women. Although
the ASA considered that the pose of the woman kneeling on the bed
was overtly sexual, because her legs were wide apart, her back
arched and she had one arm above her head with the other touching
her thigh, they considered that the pose of the woman lying on the
bed was only mildly sexual in nature, as not all of her face was
visible and there was some emphasis on her breasts. Therefore
overall ASA considered that, although some people might find the
advert distasteful, in the context of it being an advert for
lingerie, they concluded that it was unlikely to cause serious or
widespread offence.
In relation to the complaints that the adverts were unsuitable for
display on buses, the ASA considered that most children viewing
either advert would understand that they were advertising lingerie
and therefore would not expect the models to be fully clothed. In
relation to the second advert the ASA considered that, in the
context of a lingerie advert, the image of the woman sitting on the
bed, was not likely to be seen as sexual and the pose of the woman
lying on the bed was mildly sexual, as her legs were slightly apart
and her hands behind her head. Therefore the ASA concluded that the
use of this advert on bus posters was not socially
irresponsible.
In contrast, the ASA considered that the pose, in the first advert,
of the woman kneeling on the bed was overtly sexual, as her legs
were wide apart, her back arched and one arm above her head with
the other touching her thigh. The ASA also noted that the woman in
this image wore stockings. As a result, the ASA considered that the
image was of an overtly sexual nature and was therefore unsuitable
for untargeted outdoor display, as it was likely to be seen by
children. Therefore the ASA concluded that the advert was socially
irresponsible.
12. H&M Hennes & Mauritz UK Limited, 9
November 2011
This adjudication concerned a television advert for H&M
clothing store featuring a female model wearing a jacket and high
heels and striking different poses for the camera.
Complaint/Decision
A total of nine complainants challenged whether the advert was
offensive and harmful because they believed that the model looked
unhealthily thin and could give an unrealistic idea of a desirable
body image to children. One complaint suggested that the advert was
socially irresponsible on the basis that it would encourage
unhealthy eating habits in vulnerable people who might attempt to
look like the model shown.
The ASA did not uphold any of the complaints. The ASA acknowledged
that the model was slim and that wearing the short coat and high
heels emphasized the length and thinness of her legs. However, the
ASA found the advert to be typical of those for fashion products
and did not think that the model appeared too thin or that she
looked unhealthy or emaciated. The ASA also considered that because
the model was shown striking various poses in the coat and the
image was accompanied by on-screen text stating the price of the
product, the advert would be interpreted by viewers as promoting
the clothing rather than a desirable body image. Therefore, the ASA
considered that the advert was unlikely to be seen as
irresponsible, or cause harm or serious or widespread
offence.
This decision can be contrasted with the ASA's adjudication in
Drop Dead Clothing Ltd (9 November 2011) which
concerned an advert for a clothing retailer that included several
images of a model wearing bikinis and denim shorts. The complainant
challenged whether the advert was irresponsible because the model
looked unhealthily thin. The ASA upheld the complaint, finding that
the model was very slim and that her ribs, hips, collar bone and
thigh bones were highly visible in the images. On this basis, and
combined with the stretched out pose and heavy eye makeup also
featured, the ASA considered that the model looked underweight. The
ASA also noted that the target market for Drop Dead clothing was
young people and considered that the images might represent an
image that the audience would aspire to. Therefore, they considered
that, whilst the images might not cause widespread or serious
offence, the advert was nonetheless irresponsible.
However, there is clearly a fine line between what will be
acceptable and what will not. The model in the Drop Dead advert is
arguably no thinner than the model in the H&M advert, but the
fact that the latter was wearing a coat in the images meant that
the elements of the Drop Dead images that the ASA were concerned
with (such as hollow thighs, visible ribs and hip bones) were not
visible in the H&M advert. In addition, the heavy eye make-up
on the Drop Dead model which enhanced the hollow look of her face
and the overall styling (messier hair, less of a
"polished" look) gave the impression that the Drop Dead
model was not as healthy as the H&M model.
The issue of using underweight models in fashion adverts has been
an issue for a number of years. Similar to the issue of the use of
child models, these two decisions show how the ASA will consider
the whole context of the advertisement, including styling of
photos, text and target audience when considering such sensitive
issues.
MOTOR
13. Fiat Group Automobiles UK Ltd, 23 November
2011
A regional newspaper advert for the Fiat 500 TwinAir was headlined
"Try a whole new kind of speed dating" with further text
stating "First, find a new girl and say 'If I don't
like you by the time we've driven to Land's end and back,
it's a non-starter.'... The Fiat 500...as well as being a
blast to drive, is the lowest CO2 emission petrol engine in the
world".
Complaint/Decision
One complainant challenged whether speed was the main message of
the advert, in particular because of the reference to speed in
"Speed Dating" and "a blast to drive".
The complaint was not upheld.
The ASA disagreed with the suggestion that the main message of the
advert was speed. The ASA concluded that the main message was in
the context of speed dating and that the claim "a blast to
drive" would be seen as a message that the car was fun to
drive. As a result, the ASA concluded that the advert would be
unlikely to encourage anti-social behaviour and irresponsible
driving.
FOOD & DRINK
14. Unilever UK Ltd, 2 November 2011
This adjudication concerned an advertorial for Flora pro.activ on
the Telegraph website which included the headline "Flora
pro.activ: Stepping up the pace. Telegraph journalist Chris Jones
tried Flora pro.activ and brisk walks to lower cholesterol".
There was a photo of Chris Jones walking in the park. The main body
of the advert recounted Chris Jones' experience of combining
the changes to diet and exercise routine with drinking Flora
pro.activ. The top right-hand corner stated "in association
with Flora pro.activ".
Complaint/Decision
One complainant challenged whether the advert was misleading
because it resembled a news article written by a journalist and did
not appear to be a marketing communication.
The complaint was upheld. The ASA noted that there was a web-link
(flora pro.activ) above the main title of the advertorial. In
addition they noted the other heading "in association with
Flora pro.activ", but considered that it was not clear that
this related to the advert because it appeared on the far
right-hand side of the webpage above listings for other
cholesterol-related articles, with a line dividing that part of the
page from the advertorial. Although they noted that the title,
sub-title and text at the end of the advert all referred to Flora
pro-activ, the ASA considered that these references were not
sufficient to counter the overall impression created by the
advertorial, written in the style of a health and lifestyle
article, that it was an article written independently by a
Telegraph journalist.
Unilever had said that they did not believe that the majority of
their visitors would have been misled because they were able to
provide viewing figures for the page of just over 21,000 people,
whilst the ASA had only received one complaint. However, the ASA
did not consider that this demonstrated that only the complainant
had been confused, because not all visitors who had not identified
the feature to be an advertorial would have raised a complaint
because they could have understood the advert to be a health
article. The ASA concluded that the advert was misleading because
it did not make it clear that it was marketing communication.
This decision demonstrates clearly that the ASA will entertain a
complaint even where there has been only one complaint received and
the majority of consumers were not misled by an advert and despite
evidence of a high number of views to the web page. This
adjudication also serves as a reminder that all advertorials must
be clearly identified as marketing communications. Any advertorial
or similar promotions must clearly indicate that the piece is a
marketing communication.
15. Wells & Youngs Brewing Company Ltd, 30
November 2011
This adjudication concerned a cinema advert for Estrella Damm
lager. The advert showed images of a young man arriving at a
coastal destination to attend a catering course during the summer.
There were scenes of him becoming friends with a group of young
people over that time and engaging in various activities. Specific
scenes showed the group working in the kitchens, playing cards and
drinking beer around a table, and the next scene showed them
swimming in the sea and riding motorbikes. In other scenes the
group of young people were sightseeing, drinking beers in a field,
then followed by a scene of a man snorkelling. There were also
scenes of them attending a concert, collecting sea food, falling in
the sea in the day, skinny dipping, jumping off a boat, and
drinking and dancing on the beach at night, followed by a scene of
them swimming at night.
Complaint/Decision
One complainant challenged whether the advert was irresponsible
because it made a link between alcohol and activities such as
swimming and riding motorbikes in which drinking alcohol would be
unsafe.
The complaint was upheld. The ASA stated that the daytime scenes of
drinking beer and other activities such as swimming and riding
motorbikes, were unlikely to be considered by viewers to be
chronological or directly linked. They took the view that viewers
would know those activities occurred at separate times. This was
particularly illustrated by the fact that the picnic scene where
the group drink beer in a field that was immediately followed by a
scene of a man scuba diving, from which they considered that
viewers would not infer that the man had gone diving after he had
been drinking alcohol.
In contrast, the ASA considered that the night time scenes of the
group drinking and dancing on a beach that was immediately followed
by three men running into the sea were likely to be interpreted by
viewers as being directly chronological and having taken place on
the same evening. Although the ASA noted that the water that the
men were in was not deep, they considered that viewers would infer
that the characters had been drinking alcohol before going swimming
at night. This was unsafe. On the basis of these scenes, the ASA
concluded that the advert was irresponsible.
This is quite a strict adjudication. The ASA was arguably not
consistent in their view of when viewers would understand scenes to
be directly chronological and when they would consider them to be
separated in time. However, the Code takes a strict approach to
alcohol adverts, so the safest course is to not show any scenes
depicting activities that would be unsafe to undertake when under
the influence of alcohol. Alternatively, making it clear that the
two events were separated in time (for example by clearly
distinguishing between day and night or location) would be a
plausible way to avoid these risks.
16. Channel Four Television Corporation, 23
November 2011
This adjudication concerned a complaint about the scheduling of a
television advert for Brothers cider on Channel Four. The advert
was cleared by Clearcast with an 18 scheduling restriction, but was
shown during an episode of Embarrassing Bodies: Teen Special.
Complaint/Decision
One complainant challenged whether the advert was
inappropriately scheduled because it was shown during a programme
that targeted an audience below the age of 18.
The ASA did not uphold the complaint. The advertised product
contained more than 1.2% alcohol by volume and therefore the advert
fell into the category of adverts that should not be broadcast in
or adjacent to programmes commissioned for, principally directed
at, or likely to appeal particularly to audiences below the age of
18. However, the ASA noted that the audience index for the episode
of Embarrassing Bodies: Teen Special demonstrated that the
programme was not of particular appeal to under 18-year-olds.
Therefore the ASA concluded that the advert was not in breach of
the BCAP Code scheduling rules.
Although the title of the programme suggested that it was aimed at
teenagers, this adjudication shows that such presumptions can be
rebutted by evidence that the actual audience demographic is
different. The audience index for programmes is clearly very
influential in the ASA's decisions on suitable scheduling.
HOUSEHOLD
17. Jackel International Ltd, 30 November
2011
This adjudication concerned a magazine advert and a website advert
for a range of hygiene products headed "Kind and gentle".
Text in the magazine advert stated "Protect your baby from
germs with Tommee Tippee's Closer to Nature hygiene range"
along with a variety of other claims about the safety of the
product.
Complaint/Decision
One complainant challenged whether certain claims were
misleading for the following reasons:
1) "Kind and gentle" because the advert featured a
biocidal product;
2) "Closer to Nature" because the product contained
ingredients that were hazardous to the environment;
3) "free from alcohol and bleach, making it safe for you and
your baby" because the complainant believed that for the
cleaning products to work for 24 hours they must leave a residue on
the surfaces that could be ingested by the baby;
4) "offering long-lasting protection against 99.9% of bacteria
and viruses" because the complainant believed the products
were not effective against bacterial spores and therefore could not
be used for sterilisation of bottles; and
5) "leaves no taint" because he believed that the Byotrol
in the product must remain on the surface to work for the claimed
24 hours.
The ASA upheld complaints 1) and 3) only.
The ASA noted that Jackel said they did not intend "Kind and
gentle" as a specific product claim. However since the claim
appeared beneath a picture of a pair of woman's hands cleaning
a soother for an infant, with the surface wipe product prominently
displayed, the ASA considered that, in the wider context of the
advert (which covered a range of products and included the
sub-heading "Protect your baby from germs with Tommee
Tippee's Closer to Nature hygiene range"), it created the
impression that the product claim was made in relation to the whole
range.
The ASA noted that a biocide was used in the product range. The ASA
considered that the Biocidal Products Regulations 2001 included a
requirement that adverts for biocidal products should not include
descriptions such as "low-risk" "harmless" or
"non-toxic" which might mislead in respect of the risks
associated with the product. Therefore, the ASA concluded that the
claims "kind and gentle" and "free from alcohol and
bleach, making it safer for you and your baby" in the context
misleadingly implied that the product carried no risks and
therefore breached the Code. In relation to the latter, the ASA
also considered that describing the product as safe or harmless
could lead to consumers using more than the recommended amount of
the product, which could be dangerous.
In contrast, the ASA considered the claim "Closer to
Nature" was not used in such a way as to imply that the
product was wholly natural or safe for the environment without
qualification. Therefore this claim was found not to be in
breach.
The fourth complaint was not upheld because the ASA were happy that
the results of tests submitted by Jackel sufficiently substantiated
kill rates of at least 99.9% on the bacteria and viruses tested.
Similarly, in relation to complaint 5) Jackel was able to
demonstrate that the products were statistically unlikely to leave
a taint on food that had been on contact with the traces of the
products left behind on hands and surfaces. The ASA therefore
concluded that the claim "leaves no taint" was not
misleading.
This adjudication shows the fine line between claims which may be
considered misleading and those which are acceptable. Clearly
reference should be made to any relevant regulations (in this case
the Biocidal Product Regulations) which may have an impact.
18. Mars Petcare UK, 16 November 2011
The ASA considered a complaint in relation to a television advert
for a dog treat. A picture of a dog was shown accompanied by the
voice-over "Jumbone shmunbone. I can chew any treat in no
time". The advert showed a dog trying to eat the dog chew. The
visuals were then speeded up and the sound track was accelerated
and the dog eventually gave up on the dog chew. The voice-over then
stated "Well I didn't mean this one did I" followed
by "Pedigree Jumbone, the long lasting chewy
treat".
Complaint/Decision
The complainant challenged whether the claim "long lasting
chewy treat" and the visuals in the advert were misleading
because both of the complainant's dogs had eaten the product in
under one minute.
The complaint was not upheld on the basis that the ASA considered
that Mars were able to substantiate the "long lasting"
claim. The ASA considered that the advert was likely to be seen by
consumers as a comparison with more traditional soft treats that
were likely to only last a few seconds. The ASA noted that the
average consumption time of the Pedigree treat was just over 3
minutes, and therefore in comparison to traditional soft treats
considered that this was "long-lasting".
This decision is perhaps surprising because 3 minutes, although
relatively long lasting in comparison to soft dog treats, does not
in itself seem like it could be described as long lasting. In
addition, 3 minutes is a short time in comparison to the time it
would take for dogs to chew through harder, more substantial
treats. Therefore, the ASA might well have required such an advert
to make clear the basis on which the long-lasting claim was made
(i.e. "in comparison to soft dog treats").
19. John Lewis Partnership plc, 30 November
2011
This adjudication concerned two national press adverts and a
regional press advert for the John Lewis promotion, Never Knowingly
Undersold.
a) The first advert was headed "Discover our range of Apple
computers, all with a free 2-year guarantee". Further text
stated "All our computers come with a free 2-year guarantee.
All our shops are Never Knowingly Undersold so we won't be
beaten on quality, price or service...".
b) The second advert promoted a Sony TV and free Blu-Ray player
with text stating "Blu-Ray player...Free 2-year
guarantee....all our TV's come with a free 5-year guarantee.
All our shops are Never Knowingly Undersold..."
c) The regional press advert included the text "... Never
Knowingly ..."
Complaint/Decision
DSG Retail Limited challenged whether the guarantees offered in
a) and b) were genuinely free because they believed the guarantees
had always been included in the price and therefore could not be
described as "free". They also challenged whether the
"Never Knowingly Undersold" price promise was misleading,
because they believed that John Lewis would not price match
products that did not have the same length of guarantee.
Both complaints were upheld. The ASA noted that marketers must not
describe an element as "free" if that element was
included in the package price, unless consumers were likely to
regard it as an additional benefit. They considered that to avoid
being misleading, John Lewis would need to show that the products
had previously been on sale at the same price, but either without
or with significantly shorter guarantees. This had not been
demonstrated and as a result the advert was found to be
misleading.
In relation to the price promise, John Lewis informed the ASA that
they proactively matched the "box price" of their
competitor's products and noted that this policy had been put
in place following customer feedback. The ASA considered it
acceptable in principle to exclude products that did not have the
same length of guarantee from the price match policy. However, this
was on the proviso that this information was presented prominently
to the consumer in the advertisements. In this case, although the
John Lewis website and leaflets explained that they would expect
their competitors to provide a comparable length of guarantee
before they matched their price, the adverts did not make clear the
exact items on which the price promise was based and therefore the
ASA concluded that they were likely to mislead consumers.
20. Moneysupermarket.com Limited, 30 November
2011
The Moneysupermarket website offered discount vouchers for
personalised wall art and text next to the promotion stated
"Canvas Buddy present £9 instead of £30 for a 48cm
v 35 cm canvass effect portrait". Below the headline was an
image of a canvas placed on the wall above a sofa with the width of
the canvas being nearly the width of two seats of the sofa.
Complaint/Decision
Two complainants challenged whether the image was misleading
because it exaggerated the size of the canvas that was part of the
offer.
The ASA upheld the complaints. They considered that including the
image of the canvas in the lounge setting would lead the consumer
to believe that they would receive a product of comparable size,
whereas the canvas on offer was considerably smaller. Even though
only a small section of a sofa was visible in the image, the ASA
considered the sofa to be sufficiently prominent to give customers
an exaggerated impression of the size of the canvas. The ASA
therefore concluded that the advert was misleading.
Again marketers are reminded to use only images that accurately
depict the actual product on offer.
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 22/12/2011.