This article provides a selection of the most interesting ASA adjudications from December and a summary of the key issues considered in the adjudications.
The ASA’s December adjudications highlighted: the issue of offensiveness, either in the language or scenes and the impact of positioning of ads; its strict stance on environmental claims; and the suggestion that vodka makes you more attractive.
1. WM Magners Ltd, 10 December 2008 (offensive language)
2. Moet Hennessy UK Ltd, 17 December 2008 (linking alcohol to sexual success)
3. NXEC Trains Ltd t/a National Express East, 10 December 2008 (claim to have “significantly lower” carbon emissions)
FOOD AND DRINK
4. J Sainsbury Plc t/a Sainsbury’s Supermarkets Ltd, 17 December 2008 (use of “five-a-day” statement)
5. DFS Trading Ltd, 3 December 2008 (size of products exaggerated )
6. MFI Retail Ltd, 10 December 2008 (advert misleading on nine grounds)
7. Ciba Vision (UK) Ltd, 17 December 2008 (comparative claim challenged by competitor’s market research)
8. Virgin Media Ltd, 10 December 2008 (broadband speeds)
9. Barnardo’s, 10 December 2008 (charity permitted to show violence)
10. Lions Gate UK Ltd, 17 December (location of poster offensive)
ALCOHOL
1. WM Magners Ltd, 10 December 2008
Magners cider was advertised by a poster on Underground trains. The poster contained a photograph of an orchard keeper and read: “Feck off bees ‘We have beehives… The bees buzz my bald patch… Personally, I don’t like bees.’ Thomas White Orchard Keeper”.
Complaint/decision
One person complained it was offensive to use the phrase “Feck off,” particularly on a poster which could be seen by children.
The ASA rejected the complaint, finding “feck” was unlikely to be seen as a swearword. It noted Magners’ arguments that “feck” had been used since the 1800s, and in Ireland was used in informal, everyday conversations and could mean “to steal”, “to throw” or “to leave hastily”. The ASA said the ad was not aggressive or threatening, and added: “the use of the word ‘feck’ in Britain had been popularised by TV programmes such as ‘Father Ted’.”
This decision may come as a surprise to many advertisers in view of the ASA’s usual careful stance on media such as posters which have a relatively untargeted audience (such as last month’s ruling against a poster for The Sun newspaper which used the word “bloody”) and the fact that Magners’ suggested alternative meanings of “feck” clearly did not apply to the way the word was used in this context. It is particularly surprising given the ASA’s reliance on the word’s usage in a targeted TV programme which is usually broadcast on Channel 4 after the watershed. In a comparable case, the ASA previously prevented French Connection from using the initials FCUK when this was used in sentences where it could be interpreted as a swearword.
2. Moet Hennessy UK Ltd, 17 December 2008
A press advert for Belvedere vodka was headed “LUXURY REBORN”. It featured an image of a man on a couch with a woman either side of him and a table laid with food, glasses and a half full bottle of vodka in front of him. Both women were looking at his face and one had an arm around his neck.
Complaint/decision
One person complained that the ad linked alcohol with sexual success, in breach of the ASA’s Code. The complaint was upheld. The ASA noted that the man’s shirt and bow tie were undone and added: “We considered that the expressions of the women and the close physical contact of all three people, particularly the woman with her arm around the man’s neck, implied that both women were sexually attracted to the man.” The presence of the bottle of vodka implied that this had enhanced the man’s attractiveness, and therefore linked alcohol with sexual success.
This decision was reminiscent of the adjudication earlier this year against an advert for SKYY Vodka, which fell foul of the ASA on similar grounds.
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GREEN CLAIMS
3. NXEC Trains Ltd t/a National Express East, 10 December 2008
A magazine and press ad for a train service featured a picture of an aeroplane taking off, accompanied by text saying: “Wha-hey, look at that carbon go! Significantly lower your carbon emissions with National Express East Coast Trains*”. The asterix was linked to text that said the source was a “Best Foot Forward independent study”.
Complaint/decision
The ad received two complaints: that the Best Foot Forward (BFF) survey was not “independent” because it was commissioned by the advertiser, and a challenge whether the claim that travel with National Express would “significantly lower your carbon emissions” could be substantiated.
The ASA upheld the first complaint. BFF’s report used their own figures for greenhouse emissions of car and air travel as well as data provided by the advertiser for selected train journeys. Even though the ASA said it “appreciated that the calculations were conducted by BFF without input from NE,” it found the claim that the report was “independent” was misleading.
The ASA did not uphold the second complaint. It considered readers would not expect factors such as emissions resulting from the construction of the rail network to be included. And it did not agree that using the advertiser’s average figures for passenger loads as opposed to peak services or national averages was inaccurate, especially as the ad clearly stated the source of the claim.
This decision is a reminder of the many different factors advertisers need to consider when making specific claims.
Although the advertiser could substantiate the green claims made in this ad and there was no evidence it interfered with the results of the report, the ad should not have referred to the report it commissioned as “independent”. This is a tough decision by the ASA, and significant for a number of advertisers, as almost all advertisers will commission studies to support claims be used in their marketing materials. Clearly, merely commissioning a study need not compromise the independence of its results. However, in light of this decision, advertisers need to take care when describing reports as ‘independent’.
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FOOD AND DRINK
4. J Sainsbury Plc t/a Sainsbury’s Supermarkets Ltd, 17 December 2008
A TV advert focused on Sainsbury’s deals on healthy food. As a voiceover said, “Right now at Sainsbury’s, get on your way to five-a-day for the amazing price of 55p – healthy food, healthy deals,” the screen showed a number of bubbles, containing pictures of potatoes, kiwi fruit, onions, plums and vegetable stir-fry.
Complaint/decision
Two viewers claimed the advert was misleading because it suggested potatoes counted towards the Government target of eating ‘five-a-day’ portions of fruit and vegetables.
The ASA looked at information in Sainsbury’s stores and on its website which explained that potatoes did not count towards the ‘five-a-day’ target. Sainsbury’s said that because the voiceover used the phrase, “get on your way to five-a-day,” it was clear it did not imply the range would satisfy this target, adding the ad was intended to highlight promotional prices, rather than make a health claim. However, the ASA noted that the voiceover said this phrase at the same time as the shot of the potatoes appeared. This timing, along with the images fruit and vegetables, could suggest to some viewers that potatoes contributed to the five-a-day target, it said.
This decision demonstrates the care with which advertisers need to review any statements which could be seen as health claims. In this case, the timing of the voiceover claim with the image of potatoes led the ASA to take a tough stance, and reflects the ASA’s strict approach to what can be seen as health claims.
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CONSUMER PRODUCTS
5. DFS Trading Ltd, 3 December 2008
Three TV adverts showed actors dancing and miming to the song ‘Rockstar’ by Nickelback in front of, or while sitting on, a range of sofas.
Complaint/decision
Twenty one people complained that the ads were misleading because they believed the actors had been superimposed over the backgrounds to make the sofas appear bigger than they actually were.
The ASA upheld the complaint. DFS said that in order to show a large range of their sofas, they had filmed actors against a green screen and superimposed them against a background image of a sofa. The ASA said some of the sofas seemed large in relation to the actors in the TV ads, and as DFS was unable to provide sufficient photographic evidence of the size of the sofas, the ads were misleading.
This adjudication highlights the dangers of digital manipulation, and is a warning to advertisers to ensure that situations presented as lifelike – rather than clearly fantastical – do not have misleading implications.
6. MFI Retail Ltd, 10 December 2008
Furniture giant MFI entered administration in November. Shortly afterwards, the ASA found that a series of its adverts were misleading on nine grounds.
First, a TV advert told viewers they could “Get up to 50% off and a free Bosch dishwasher in the MFI sale.”
Then a press advert read: “SAVE UP TO 50% ON THOUSANDS OF LINES,” and gave as an example a ‘Hygena Rimini kitchen’ which it said “WAS £687 NOW £537”.
Finally, a leaflet stated: “mfi price promise BRITAIN’S LOWEST PRICES! If you find a comparable quote at a current lower price or get a lower quote, we’ll match that price and give you an EXTRA 10% off the difference too! … EVERY DAY UNBEATABLE PRICES”. Other text read: “Cosmos Double Non-Storage Divan… ONLY £249,” next to a picture of a double bed with built-in storage drawers.
Complaint/decision
B&Q successfully complained that the adverts were misleading in a number of ways. These were:
- The TV ad did not make clear that to qualify for a free dishwasher, customers must spend £1,500. Small print that “Minimum spend levels apply” was not sufficient because it was such a large sum
- The press ad was wrong in saying that MFI stocked “THOUSANDS OF LINES” because although the company had thousands of products, only 28 kitchen lines were included in the promotion
- The Hygena Rimini kitchen had not been previously sold for £687, as claimed. MFI submitted no evidence this price had been charged before, or after, the sale
- The press ad and leaflet failed to make clear the closing date of the promotion, in breach of the CAP Code
- MFI did not have “BRITAIN’S LOWEST PRICES” because they could only offer these prices using their ‘price promise,’ and CAP guidance said such a promise would not justify a lowest price claim in the absence of a monitoring policy
- The phrase, “EVERYDAY UNBEATABLE PRICES” implied MFI’s non-sale items were cheaper than their competitors, in the context of the ad; MFI did not prove this.
- The leaflet did not make it clear that there was a significant exclusion to the ‘price promise’ because it did not apply to online quotes
- The advert for the Cosmos Divan was misleading because the given price did not relate to the pictured product and the contradiction between the photograph and text was confusing This emphasises the importance, particularly in comparative ads and when making ‘lowest price’ claims, of having clear claims which can be substantiated.
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HEALTH AND BEAUTY
7. Ciba Vision (UK) Ltd, 17 December 2008
Ciba Vision ran a poster and a TV advert for a new disposable contact lens from its ‘Dailies’ range. The poster had a picture of an eye and text reading: “THE MOST COMFORTABLE DAILIES® CONTACT LENS EVER, GUARANTEED.” The TV ad featured an image of an eye blinking. Every time it blinked, the images multiplied. A voiceover said: “imagine a unique new contact lens, one that refreshes itself every time you blink. Only Dailies AquaComfort Plus has our unique triple action moisture that lubricates, moisturises and refreshes.” There was a shot of the product pack and it continued: “…new Dailies AquaComfort Plus daily disposable lenses. The most comfortable Dailies contact lens ever.” On-screen text read: “THE MOST COMFORTABLE DAILIES® CONTACT LENS EVER.. DAILIES is a registered trademark.”
Complaint/decision
A competitor objected that the adverts misleadingly implied the lenses were more comfortable than any other brand of daily disposable contact lens ever. They commissioned their own market research into the poster and provided this as evidence that a significant proportion of consumers and eye care professionals would interpret the claims in this way.
The ASA reviewed the competitor’s research, but disagreed with its conclusion. The report showed that 47% of respondents believed the claim, “THE MOST COMFORTABLE DAILIES® CONTACT LENS EVER, GUARANTEED” to refer to all daily-wear contact lenses. However, the ASA found this claim was put to participants in isolation rather than in the context of the ad, and this could potentially unduly influence their responses.
The adverts used the registered trade mark symbol and referred several times to the “DAILIES® AquaComfort Plus®” brand name. In this context, the ASA thought consumers were likely to understand the claim to mean that the AquaComfort Plus product was the most comfortable of the Dailies range.
This complaint demonstrates that an advert may be able to withstand complaints when care has been taken over its wording and the parameters of any claims it makes.
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COMPARATIVE ADVERTISING
8. Virgin Media Ltd, 10 December 2008
Two posters carried the claim, “The UK’s fastest broadband is fibre optic. Only from Virgin Media." A press ad stated, “it’s the fastest broadband you can get*. Right now we’re offering you speeds of up to 20Mb”.
Small print in all three ads read: “*Fastest broadband claim based on Epitiro data for 01/10/07 to 31/12/07 (up to 20Mb cable broadband vs BT, TalkTalk, Tiscali and AOL ADSL Max)… Epitiro benchmark performance of major UK ISPs 24/7. Tests on up to 20Mb cable broadband and ADSL Max…”
Complaint/decision
The complainants queried whether:
- the claim to offer the “UK’s fastest broadband” could be substantiated, as they believed up to 24Mb broadband was available from other providers
- the Epitiro data was sufficient to substantiate the claims, as it only applied to Epitiro’s members rather than the whole industry, and only related to up to 20 Mb broadband (which only a small proportion of UK customers received)
The ASA upheld both complaints. On the first point, Virgin had said its claim was based on the actual speeds most users experienced, rather than the headline “up to…” speeds. However, the ASA felt readers would understand the claim to mean it was not possible to obtain a faster maximum download speed in the UK than with Virgin. This was misleading because some users could procure speeds of up to 24Mb in optimum conditions using an ADSL2+ service.
On the second point, the ASA found against the advertiser because the Epitiro data used did not cover all UK ISPs, and because participating ISPs had some control over which of their locations were included in Epitiro’s data.
This is a useful reminder that superlative claims will always require robust substantiation.
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OTHER
9. Barnardo’s, 10 December 2008
477 people complained about two TV adverts for Barnardo’s which featured a number of distressing and violent scenes, including a man hitting a teenage girl on the head, and the same girl in prison, using drugs and crying. The scenes were repeated at speed, emphasizing the sound of the slap.
Complaint/decision
Most of the complainants found the adverts distressing and likely to cause serious or widespread offence. Some, including those who had been abused as children, complained the adverts were likely to cause serious distress.
The ASA did not uphold any of the complaints. It acknowledged that many of the complainants were deeply offended and the distress of those who had suffered abuse was deeply felt, but considered that the ad’s aim of raising awareness of abuse would justify the shock of watching it for most viewers. It added: “Although the scenes of violence might be unacceptable in other advertising we noted that the TV Code contained provision for charity ads to contain scenes that might otherwise be unacceptable to viewers.”
Advertisers in the commercial sector should take notice that the ASA will apply different standards to violence depicted in adverts for charities. This also illustrates once more that even where there has been a very high number of complaints, the ASA will not necessarily uphold the compliant against an advertiser.
10. Lions Gate UK Ltd, 17 December
An advert for the film ‘Righteous Kill’ ran in the press and on London Underground posters, including at Stockwell station. It depicted Robert De Niro and Al Pacino against the New York skyline, with a police badge in the corner. Text read: “THERE’S NOTHING WRONG WITH A LITTLE SHOOTING AS LONG AS THE RIGHT PEOPLE GET SHOT”.
Complaint/decision
Five people complained the ads glamorised violence and gun crime by suggesting it was sometimes morally acceptable to kill people.
The ASA challenged whether the poster was likely to cause serious or widespread offence specifically because it was displayed at Stockwell tube station at the same time as an inquest into the 2005 shooting of Jean Charles de Menezes at that station.
The ASA rejected the first complaint, saying most people would understand that the quote was “intended to be wryly humorous”.
However, the ASA upheld its own challenge. Lions Gate said it had not selected specific station locations. CBS had removed the poster from Stockwell station within 48 hours of receiving an instruction from London Transport to take it down. The ASA welcomed this but nevertheless found the poster had the potential to cause serious offence because of its location.
This adjudication raises difficult issues for advertisers, as they may not have direct control over the positioning of adverts. An advert may therefore be held to cause offence because of its location even when complaints against its content alone are not upheld. In such instances it is vital that the advertiser reacts quickly to remove offending ads.
