This article provides a selection of the most interesting ASA adjudications from August and a summary of the key issues considered in the adjudications.
This month, the ASA considered in particular the communication of key terms and conditions that are likely to influence consumers in their decision to participate in a promotion. A number of the adjudications highlight the importance of displaying significant terms and conditions appropriately and with sufficient prominence to avoid misleading the consumer. The ASA also gave particular consideration to the targeting of adverts.
1. Best Direct (International) Ltd, 25 August 2010 (considered the requirement to substantiate efficacy claims, including testimonials and the results of product tests)
2. Kimberly-Clark Ltd, 4 August 2010 (adverts must not be ambiguous as to the basis and/or source of claims)
3. Lloyds Pharmacy Ltd, 11 August 2010 (examined the claim that a product can “help to” achieve a health benefit)
4. Opti-Pharm Pty Ltd t/a Optislim, 25 August 2010 (on-screen text in an advert did not sufficiently qualify the images and statements made by the voice-over)
5. Marcandi Ltd t/a Madbid.com, 25 August 2010 (significant conditions of participation should be included in advertisements and prices quoted in adverts should include any relevant associated costs)
6. Hillside (New Media) Ltd t/a Bet365 (an advert for “free bets” should have referred to or provided a direct link to significant terms and conditions including costs)
7. R&D Design Ltd, 18 August 2010 (an advertiser is responsible for the activities of a third party provider of mailing services working on its behalf).
8. Easylife Group Ltd, 18 August 2010 (advertisers must ensure that people who unsubscribe to mailing lists do not subsequently receive unwanted communications)
9. Associated Newspapers Ltd t/a Daily Mail, 25 August 2010 (significant terms and conditions, availability and additional compulsory charges should be clearly stated)
OTHER
10. Kia Motors (UK) Limited, 11 August 2010 (the ASA considered the need to specifically refer to significant terms and conditions of a warranty in light of industry standard terms and conditions)
11. Emerson Electric (UK) Ltd t/a/ InSinkErator, 4 August 2010 (considered whether an advert for a waste disposal unit could condone behaviour prejudicial to health and safety)
12. Puma AG t/a Puma UK, 18 August 2010 (an advert that was light-hearted and clearly removed from reality was acceptable to the ASA)
NON-COMMERCIAL
13. The Association of Chief Police Officers, 11 August 2010 (considered whether an advert promoting an anti-terrorism hotline was offensive, harmful, or caused undue fear)
14. Marie Stopes International, 4 August 2010 (an advert that received over 1000 complaints was considered acceptable by the ASA)
HEALTH AND BEAUTY
1. Best Direct (International) Ltd, 25 August 2010
A TV advert for a skincare product included such claims as “your lines and wrinkles will disappear in an instant”, “helps give your skin a perfectly smooth appearance” and “visibly erase any lines”. It also contained two testimonials including one claiming “I look 10 years younger”.
The voice-over on the advert stated “tests showed that 95% of users immediately observed a lifting and firming effect, 100% observed a significant reduction of wrinkles and 100% also observed improvement in elasticity…”. The advert included several “before” and “after” images.
Complaint/Decision
CAP monitoring staff challenged whether the claims in the advert, including those in the testimonials and those relating to the test results, could be substantiated. They also challenged whether the “before” and “after” images were a genuine and accurate representation of the likely effects of using the product.
The ASA upheld these challenges. It considered that the claims made in the advert implied that the product would have the effect of reducing lines and wrinkles and giving users firmer, smoother skin. However, the ASA understood that the product was designed to “fill” or “cover” wrinkles and the advertiser had not produced evidence to show that the product had an effect on the skin itself. The ASA therefore concluded that these claims could not be substantiated and were misleading. The ASA noted that the claim made in the testimonial represented the user's opinion of the product and not that of the advertiser. Although it considered that the testimonial was genuine, the ASA reminded the advertiser that testimonials alone do not constitute substantiation and must be supported by documentary evidence. The ASA considered the “before” and “after” images to be visual testimonials, and therefore, in the absence of evidence to prove the authenticity of these images, the ASA considered that the use of these images was misleading.
The test results quoted in the advert related to a consumer perception study in which 20 participants completed a questionnaire at intervals of one day and seven days after using the product. The ASA noted that the study did not include controls and concluded that one study of 20 participants was insufficient to substantiate the performance claims.
This adjudication serves to remind advertisers of the importance of ensuring they have appropriate evidence to substantiate claims and testimonials, which is particularly important in relation to skin care products. It provides a useful indication of the ASA’s attitude to testimonials and its view that testimonials, including “before” and “after” pictures, should be substantiated by documentary evidence when used in the context of performance claims. The comments on the consumer perception study, both as to the size of the study and the question of controls, are also of interest.
2. Kimberley-Clark Ltd, 4 August 2010
A leaflet for paper hand towels compared the benefits of paper towels against air dryers. The advert stated “LINEN TOWELS. Considered unhygienic to use.” The advert contained small print stating “All data from University of Westminster Study Feb 2009 and User Preference Study Intermetra June 2008.”
Complaint/Decision
The complainant challenged whether the claim “Considered unhygienic to use” was misleading because it implied that linen towels were more unhygenic than other drying methods and because the study referenced in the advert had not contained an analysis of cotton.
The ASA understood that the claim was based on the User Preference Study, and not the other study referenced. However, the ASA noted that the advert contained a combination of claims and considered that the presentation of the advert was ambiguous as to the basis of each claim. The ASA considered the claim in the context of its position in the advert and the surrounding claims, and concluded that readers would assume that the claim was based on a direct comparison of various drying methods including linen towels. The User Preference Study asked participants to consider which method of drying they considered most hygenic; respondents were not asked whether they considered linen towels to be unhygenic per se. The ASA therefore concluded that that this advert contained comparative claims without being sufficiently clear as to the substantiation of those claims. The ASA also considered that the claim relating to linen towels was extrapolated from the survey results in a manner that was likely to mislead.
This adjudication highlights that advertisers must take care when making comparative adverts of any kind and to avoid ambiguity when using a variety of sources to substantiate claims. Furthermore, it indicates that advertisers must take care to be accurate when using survey results and other such material, so as to substatiate the actual claims being made.
3. Lloyds Pharmacy Ltd, 11 August 2010
A TV advert, for a blood pressure monitor, featured a voiceover stating “if you’re among the one in three adults with high blood pressure, you’re at risk of heart disease and strokes… But you can help control it by keeping a regular check on it with one of these accurate easy to use monitors…”
Complaint/Decision
One complainant challenged whether the claim “But you can help control it by keeping a regular check on it at home” was misleading, as she understood that the product could only monitor blood pressure, but could not help to control it.
The ASA noted that the advert referred to monitoring and considered that viewers would interpret the phrase as a claim that the product could help monitor blood pressure; users could then seek any appropriate medical advice. The ASA did not consider that viewers would understand the product to be suitable for self-diagnosis or the control of a medical condition, and concluded that the advert was not misleading.
Whilst this advert provides a useful example of an acceptable claim, advertisers should take care when stating that a product can help to achieve a particular effect. However, the inclusion of the word “help” in this instance was important and can be useful when making claims which might otherwise be considered to be too broad. The inferences that consumers are likely to draw from the claim should always be considered.
4. Opti-Pharm Pty Ltd t/a Optislim, 25 August 2010
The voice-over on a TV advert for a weight-loss shake stated “Shake fat fast with Optislim three-second work out. Your complete weight loss solution”. The woman in the advert was shown stretching for exercise, making a shake and then relaxing on a sofa. The on-screen text stated “when used as part of a calorie controlled diet & healthy lifestyle”.
Complaint/Decision
Six viewers complained that the advert was misleading because it implied that drinking the product would have the same benefit as exercise or could replace exercise as part of a weight loss programme.
The ASA upheld the complaint; it considered that the claims made by the voice-over together with the woman sitting on a sofa (as opposed to exercising) implied that drinking the product could replace exercise. Whilst the ASA noted the on-screen text, it did not consider that this was sufficient to remove the implication in the voice-over and images.
This advert is reminiscent of a previous Tetley ad in November 2009 involving a woman deciding to drink Tetley Green Tea for its health benefits instead of going out for a run, which was not upheld on a similar issue.
This decision highlights that advertisers must take care in making health and weight loss claims, suggesting what appears to be an alternative to exercise. Even though on-screen text or small print can assist; small print may not be sufficient to qualify claims.
LEISURE
5. Marcandi Ltd t/a Madbid.com, 25 August 2010
A TV advert for Madbid.com gave examples of products that were or had been available at low prices, including a new Ford Focus for £800, a MacBook Air for £47 and an iPhone for £30.
Complaint/Decision
Three complainants alleged that the advert was misleading because it did not make clear that Madbid.com was an auction site on which each bid would cost participants £1.50 and it was unclear whether the prices quoted in the advert included the costs associated with bidding.
The ASA considered that both the name of the advertiser and the advert itself made it clear that the service was an auction and viewers were therefore unlikely to be misled. However, the ASA considered that the £1.50 price of a bid was a significant condition, which should have been included in the advert. Rule 5.1 of the Broadcast Code, which is drafted to comply with the Consumer Protection from Unfair Trading Regulations, provides that advertisements may not mislead. In particular, they must not omit, hide or provide in an unclear manner information that is likely to affect consumers buying decisions. Such information includes pricing information. As it was not clear that there was a cost attached to making a bid, the ASA concluded that the advert was misleading.
The prices featured in the advert did not include the costs incurred in winning the relevant auctions. The ASA took the view that the quoted prices did not represent the actual overall cost paid by the successful bidders and concluded that the advert gave a misleading impression of the cost of the products featured.
This decision, along with a number of other adjudications this month, shows the importance both of communicating to consumers any significant terms and conditions associated with products and services and of ensuring that any information regarding additional costs to be incurred is made clear.
6. Hillside (New Media) Ltd t/a bet365
A banner ad for the betting website bet365 appeared on three successive screens stating “bet365 JOIN NOW… £200 FREE BETS FOR NEW CUSTOMERS… NO1 FOR SPORTS”.
Complaint/Decision
The complainant claimed that the advert was misleading because it did not make clear that the new customers could only claim the free bets if they staked a significant amount of their own money and any winnings could only be withdrawn if various conditions were met first.
The ASA noted that the terms and conditions on the Bet365 website stated that the “free bet” would match the amount deposited by the customer and that bets must be placed on three separate occasions in order to withdraw winnings. The ASA decided that, whilst experienced gamblers might be familiar with the “free bet” terminology and the terms and conditions, this advert was targeted at new customers and there was nothing to prevent inexperienced gamblers from taking part in the promotion. The ASA upheld the complaint because the significant terms and conditions attached to the “free bets” were not made clear. Rule 7.2 of the Non-Broadcast Code, which is based on the Consumer Protection from Unfair Trading Regulations, provides that marketing communications must not omit, hide or provide in an unclear manner material information, including pricing information. The ASA concluded that in order to be sufficiently clear, significant terms likely to affect a consumer’s decision to participate in a promotion should be either displayed in the advert itself or be no further than one click-through away from it.
This decision further shows the importance of displaying significant terms and conditions with sufficient prominence so as to avoid misleading consumers. This is particularly relevant in the context of targeting an advert at new consumers, whose understanding of commonly used terminology may be restricted.
DIRECT MAIL
7. R&D Design Ltd, 18 August 2010
This complaint concerns a direct mailing for gifts from R&D Design Limited.
Complaint/Decision
A recipient of the direct mailing complained because they had received it despite having registered with the Mailing Preference Service (MPS).
In their response the advertiser said that they had purchased the complainant’s details from a third party company. However, the ASA noted that it was the responsibility of marketers to ensure that their database practices were up-to-date and that all necessary steps were taken to ensure that communications were not sent to consumers who had asked not to receive them. The ASA noted that they had not seen evidence of the database practices of the company to whom the advertiser had outsourced their mailing and upheld the complaint.
8. Easylife Group Ltd, 18 August 2010
This advert concerns promotional emails that were sent to the complainant, who had made several requests to be unsubscribed from the relevant mailing list.
Complaint/Decision
In its response Easylife acknowledged that it should not have sent the emails and said that it had resolved the issues that had led to the complainant receiving the emails with its e-mail partner. The ASA upheld the complaint and reminded the advertiser of the importance of suppressing the personal details of consumers from its email lists once those consumers had unsubscribed.
Both this decision and the R&D Design Ltd decision above show that advertisers remain responsible for the distribution of advertisements when using databases in marketing communications, even if a third party is involved. Advertisers must take care to exclude recipients who have opted not to receive communications; appropriate procedures should be followed when acquiring details from third parties.
PUBLISHING
9. Associated Newspapers Ltd t/a Daily Mail, 25 August 2010
This adjudication concerned a press advert for holidays which included the wording “…FROM JUST £15 SEE FOUR-PAGE PULLOUT…”. The advert’s smallprint stated “Per person. Based on four sharing. Service charge and conditions apply”.
Terms and conditions to the offer stated “…Holidays in this offer are subject to availability at the time of your booking online or processing of your postal booking. Not all holiday parks will be available on all dates ... Service charges start at £5 per unit, per night and will be charged to you by your park in advance of your arrival … PARKS offer day and evening entertainment programmes and charge for optional Entertainment & Clubroom passes. Charges start at £3 per person per short break. Although optional, please note that Entertainment/Clubroom passes may be required for access to facilities such as swimming pools, bars, restaurants, etc …”.
Complaint/decision
One complainant challenged whether the claim “from £15 per person” was misleading because an additional service charge would always be payable. A further complainant challenged the availability of the offer, after being told on the first day of the offer then no holidays were available in August. The ASA further challenged whether the advert was misleading because it was not clear that additional passes were required to access certain facilities at some parks.
The ASA upheld all three of these complaints. It considered that the headline “from £15 per person” would be understood to mean that some holidays were available at £15 when, in fact, there would always be an additional service charge payable per night. It was therefore impossible for consumers to take up the offer at the stated price.
The ASA further considered that August would be the most popular month for the offer, but noted that there was less availability in August than during other periods, and this had been exhausted during the first 2 days of the offer. The ASA therefore concluded that there was insufficient availability and the limited August availability had not been communicated to consumers; the advert was therefore considered misleading.
The ASA concluded that the requirement for passes to use additional facilities was a significant condition that was likely to influence consumers in their decision to take part in the offer. The ASA considered that this should have been made clear in the body of the advert and therefore the advert was misleading.
This adjudication is another example of the need for advertisers to make clear significant terms that are likely to be influence to consumers. It also serves as a reminder that prices quoted in adverts should accurately state any additional compulsory charges.
OTHER
10. Kia Motors (UK) Limited, 11 August 2010
This adjudication concerned national press, TV and radio adverts for Kia Motors. Each of the adverts made reference to Kia cars being sold with a seven-year warranty. The press advert and the television advert contained smallprint stating “7 year/100,000-mile warranty” and alerted consumers to the fact that terms and conditions applied. The radio advert also stated that terms and conditions applied, but did not make reference to the 100,000-mile limit.
Complaint/Decision
A company complained that the press and television adverts were misleading on three grounds: the television advert failed to give sufficient prominence to the 100,000-mile limit; the warranty cover varied for different components; and the warranty did not relate to the wearing of parts through general use. A second complainant challenged the radio advert because it did not make reference to the 100,000-mile limit.
The ASA noted that although the mileage limit was included in the final frames of the television advert, it was not on screen during the visual and voice-over description of the warranty. It considered that the general impression of the advert, including the repeated references to the number 7, indicated that the warranty was valid for 7 years. The ASA decided that the 100,000-mile limit was a significant condition, which should have appeared in the main section of the advert. As this was not given sufficient prominence the ASA concluded that the television advert was misleading. With regard to the issue raised by the second complainant, the ASA noted that seven-year warranties were not typical in the industry and the cars were being promoted specifically by reference to the warranty. Accordingly, the 100,000-mile limit was a significant condition and the omission of this in radio advert led the ASA to conclude that this advert was also misleading.
The ASA also noted that various cover periods applied to different components in the car, but considered that without qualification, consumers would assume that all components were covered by 7-year warranty. The exclusions were not sufficiently referred to and therefore the ASA decided that both the press advert and the television advert were likely to mislead in this regard.
The ASA considered that most consumers would not expect wear and tear to be included in a warranty. Although some independent manufacturers offered warranties covering wear and tear, most manufacturers’ warranties did not cover this. The ASA decided that comparisons made by the press and television advert were comparing the advertiser’s warranty with that of most other manufacturers. Accordingly this complaint was not upheld.
This decision is interesting because mere reference to the significant terms and conditions was considered insufficient in these circumstances. Significant terms may need to feature throughout the duration of an advertisement, rather than merely at the end of the advert. It also shows that the ASA is prepared to take into consideration offers or promotions that are commonly made in a particular industry, and assess whether a particular term was given sufficient prominence with reference to these.
11. Emerson Electric (UK) Ltd t/a/ InSinkErator, 4 August 2010
A TV advert for a waste disposal unit featured a woman putting food waste into the sink and pushing it into the plug hole with her hand.
Complaint/Decision
Six viewers complained that the advert was harmful, because it might encourage people to put their hands into waste disposal units.
The ASA noted that the advert had been given an ex-kids restriction so that it was not shown in or around children’s programmes. It considered that the advert demonstrated the correct use of the unit and there would be no danger if used as demonstrated. Accordingly, the ASA concluded that the advert did not condone behaviour prejudicial to health and safety.
The risk of emulation, particularly by children is always an important issue to take into account, but in this instance the advertiser had taken a cautious approach to targeting and had applied an ex-kids restriction. This adjudication shows the consideration given by the ASA with regard to targeting and broadcasting restrictions placed on the advert when reaching its conclusions.
12. Puma AG t/a Puma UK, 18 August 2010
A magazine advert for football boots showed a famous footballer kicking a football in a room. He was surrounded by broken, expensive-looking items. The text included “PUMA THE POWER OF” and “LOVE EQUALS FOOTBALL”.
Complaint/Decision
Two complainants challenged whether the advert condoned anti-social behaviour; they understood that the publication in which the advert appeared was aimed at children, who might view the footballer as a role model.
The ASA considered that the advert was light-hearted and the scenario featured was clearly removed from reality. Whilst it acknowledged that young readers might view the footballer as a role model, the ASA concluded that the advert did not condone and was unlikely to provoke anti-social behaviour.
This advert is an interesting example of an instance in which the ASA considered that a light-hearted and clearly unrealistic advert was acceptable, even though it was targeted at youngsters and even where there might otherwise have been considered a risk of emulation.
NON-COMMERCIAL
13. The Association of Chief Police Officers, 11 August 2010
A radio ad for the Anti-Terrorist Hotline stated “…The man at the end of the street doesn't talk to his neighbours much, because he likes to keep himself to himself. He pays with cash because he doesn't have a bank card, and he keeps his curtains closed because his house is on a bus route. This may mean nothing, but together it could all add up to you having suspicions. … If you see anything suspicious, call the confidential, Anti-Terrorist Hotline on 0800 XXXXXX. If you suspect it, report it”.
Complaint/Decision
18 complainants challenged the advert on various grounds, including that it was offensive because it encouraged people to report law-abiding citizens, that it was harmful because it could encourage people to harass or victimise their neighbours, and that it made an undue appeal to fear.
The ASA noted that the behaviour referred to in the advert was based on trends identified by the police, which, when taken together, could constitute grounds for suspicion. However, it noted that these could also be behavioural trends exhibited by law-abiding citizens, who could be offended by the implication that their behaviour was suspicious. The ASA also considered that listeners might be offended by the suggestion that they report their neighbours. Accordingly, the complaint that the advert was offensive was upheld.
However, the ASA noted that the advert conveyed its message in a reasonable tone, was not sensationalist and did not suggest that listeners approach anyone whom they suspected. Accordingly the ASA did not consider that the advert condoned harrassment and concluded that it was not harmful.
The ASA also acknowledged that the intention of the advert was to raise awareness and considered that the conditional wording “may mean nothing” was proportionate. It therefore concluded that the advert was unlikely to cause anxiety for listeners and did not make an undue appeal to fear.
This adjudication, and that for Marie Stopes International below, both attracted significant amounts of media attention, even where in one case the complaint was not upheld. They are both interesting examples of the approach taken by the ASA to adverts for non-commercial organisations or services. Advertisers should note that in this decision the ASA considered the intention of the advert, its tone and proportionality.
14. Marie Stopes International, 4 August 2010
The voiceover in a television advert for a not-for-profit organisation stated “If you’re pregnant and not sure what to do, Marie Stopes International can help”.The final caption showed a website and phone number for an advice line.
Complaint/Decision
The ASA received 1054 complaints about this advert. These included that the advert was offensive, harmful (including on the grounds that it did not refer to the health risks of an abortion) and misleading. Complainants also challenged whether Marie Stopes International should be allowed to advertise its services on television for a number of reasons, including that it promoted a medical procedure and that is was scheduled at times when children might see it.
The ASA did not uphold any of the complaints. It acknowledged that the issue of abortion was controversial and could evoke a reaction in someone directly affected, but it considered that the advert promoted an advice service which provided a range of health advisory services including general pregnancy advice. The ASA considered that the advert was understated and not sensationalist, and did not advocate a particular course of action or option. Accordingly, the ASA did not consider that the advert was likely to cause serious or widespread offence.
The ASA was satisfied that callers to the advice line would receive appropriate information about any applicable health implications. As the three women featured in the advert were not presented in a glamorous manner, the ASA did not consider that the advert would particularly appeal to young people. The ASA also considered that the content of the advert was not directly targeted at children and noted that the advert had been given an ex-kids restriction. The ASA therefore concluded that the advert was not harmful or misleading.
This is an interesting example of the ASA not upholding a large number of complaints against a high-profile advert. Whilst the ASA acknowledged the socially controversial subject nature of the advert, it accepted that this advert related to the promotion of a non-commercial advice service. Under the new CAP and BCAP Code rules, advertisers will be required to take account of the prevailing standards in society in considering if an advert is likely to cause serious or widespread offence. Ofcom has also adjudicated on this advert (click here), following 270 complaints on the basis the advert was political in nature, and found the advert not to be in breach.
