This article provides a selection of the most interesting ASA adjudications from February and a summary of the key issues considered in those adjudications. In particular, the ASA considered three L’oréal adverts and their use of post production techniques, and adjudicated on the well-publicised complaints against various claims on the TripAdvisor website. The ASA also considered complaints against a number of adverts featuring sexual imagery, with the outcomes differing predominantly depending on whether the imagery related to the advertised products.
This month also sees the OFT launching a review of the payday lending sector, following serious concerns that some lenders may be targeting and taking advantage of those in financial difficulty. The fast-growing sector is widely advertised, with lenders such as Wonga and Quick Quid advertising on mainstream TV channels. The review will further investigate compliance with the Consumer Credit Act and update current OFT guidance on irresponsible lending.
ADJUDICATIONS
COSMETICS
1. Henckel AG & Co KGaA t/a Schwarzkopf, 1 February 2012 (The ASA considered claims in relation to hair colouring products)
2. L’oréal (UK) Ltd t/a L’oréal Paris, 1 February 2012 (The ASA considered three separate adverts on the basis of whether they misleadingly exaggerated the effects that could be achieved by the advertised products)
COMPUTERS AND TELECOMS
3. LG Electronics Ltd, 1 February 2012 (Samsung successfully challenged a number of claims made by LG in respect of its HD TV technology)
4. Virgin Media Ltd, 15 February 2012 (The ASA considered complaints by BSkyB in respect of comparative adverts for TV set top boxes and capability claims)
ENERGY
5. Solarking UK, 15 February 2012 (The ASA considered whether the claim ‘become energy bill free’ could be substantiated)
FASHION
6. Levi Strauss & Co t/a Levi’s, 1 February 2012 (A magazine advert showing young people holding lit fireworks was found to be harmful and irresponsible)
7. Marks and Spencer, 15 February 2012 (Complainants challenged whether moving display lingerie adverts were offensive and inappropriate)
FOOD & DRINK
8. Aldi Stores Ltd, 1 February 2012 (The ASA considered comparative claims relating to supermarket goods)
9. Kellogg Marketing and Sales Company (UK) Ltd, 1 February 2012 (The ASA considered whether adverts for cereal products breached health and nutrition Code rules)
10. Antonio Federici, 29 February 2012 (Complaints that a magazine advert for ice cream was offensive on religious grounds were not upheld)
11. Bacardi-Martini Ltd, 8 February 2012 (The ASA considered whether an online prize promotion by Bacardi on a radio station website was appropriate)
TRAVEL & TOURISM
12. Ryanair Ltd, 15 February 2012 (Complainants challenged whether newspaper adverts were sexist, objectified women, offensive and unsuitable for display)
13. TripAdvisor LLC, 1 February 2012 (The ASA considered whether travel reviews could be claimed to be genuine)
HOUSEHOLD
14. The Sofa King Ltd, 29 February 2012 (The ASA upheld complaints against an advertising slogan alluding to a swear word)
15. Robert Dyas Holdings Ltd, 8 February 2012 (A savings claim was considered to be misleading following failure by the advertiser to provide substantiation of the product selling for the higher advertised price)
16. Comet Group plc, 8 February 2012 (The extent of savings on discounted products was challenged)
17. The Hut.com Ltd t/a IWantOneOfThose.com, 15 February 2012 (The ASA considered that advertisers had not made a reasonable estimate of the likely response to a promotion)
OTHER
18. MyCityDeal Ltd t/a Groupon UK, 1 February (The ASA held that there was no evidence to substantiate that a sportswear product could aid weight loss or reduce cellulite, whilst the OFT announced the results of its investigation into Groupon’s trading practices)
19. Electronic Arts Ltd, 8 February 2012 (An advert for a video game was considered to be light hearted and mildly suggestive rather than overtly sexual and offensive)
20. Cassava Enterprises (Gibraltar) Ltd t/a 888.com, 29 February 2012 (The complainant challenged whether an advert for online poker linked gambling to seduction and sexual success)
COSMETICS
1. Henckel AG & Co KGaA t/a Schwarzkopf, 1 February 2012
Two magazine adverts and the advertiser’s website made various claims in relation to hair colouring products, including: “recommended by independent dermatologists to be used on delicate scalps”, “you can offer an exciting new colour service to clients [with] scalp discomfort because there was simply no alternative” and “Perfect white coverage up to 90%”.
Complaint / Decision
L’Oréal (UK) Ltd challenged the claims on a number of bases, in particular, whether “perfect white coverage” misleadingly implied 100% coverage and was contradicted by the further text “up to 90% white coverage”. Other challenges included: whether the claims that the products were appropriate for use on sensitive scalps were misleading because the products containing known irritants; that it was not possible to substantiate the efficacy of the products or the claim that the product was “recommended by dermatologists”; and that the claim “there was simply no alternative” was misleading.
The phrase “90% coverage” was considered to be a qualification to the claim “perfect coverage” and the ASA did not consider this to be misleading. It considered that the adverts were aimed specifically at hairdressers, who would understand “90% coverage” to relate to quantity of hair coverage achieved by the dye and the use of “perfect” to relate to coverage quality.
The claims in relation to scalp irritation were not considered misleading and the complaints were not upheld. Independent experts had tested the products over several years and the ingredients had been certified suitable for use.
The complaints regarding the efficacy claims of specific ingredients were upheld. Although the advertisers was able to demonstrate the efficacy of the substances generally, and in other cosmetic products, the ASA considered that, to substantiate the claims, the advertiser would need to demonstrate the properties claimed were the same when used alongside (or following) the hair product chemical components and this had not been done.
The ASA considered that the claim “…simply no alternative”, although being accurate and not a claim to be the only product on the market that was geared towards scalp discomfort, would be likely to be interpreted by the hairdressers to whom it was addressed as a claim that there were no other products available for sensitive scalps. As the advertiser had not provided any evidence to show this was the case, the ASA considered the claim to be misleading.
This adjudication shows the importance of targeting. An advert which might otherwise be misleading, when published in a trade journal, may be acceptable.
2. L’oréal (UK) Ltd t/a L’oréal Paris, 1 February 2012
L’oréal was the subject of three adjudications this month.
The first concerned a TV advert for mascara, featuring a voice-over that stated, “... The secret? Our collagen enriched formula and claw brush flick out and extend the look of lashes at the corners, for up to seven times more volume ...”. The advert featured close ups of a model wearing the mascara.
The second concerned a press advert for a moisturiser featured a photograph of Jane Fonda. Text stated “Your experience. Our expertise. AGE RE-PERFECT Pro-Calcium + SPF15 Trust Science for skin that feels toned, smoother, more resilient”.
The final advert under scrutiny was a two page magazine advert for an anti wrinkle cream, featuring close up black and white pictures of actress Rachel Weiss. Text included “New Revitalift repair 10 our 1st multi-tasking anti-ageing moisturiser targets 10 signs of ageing in one”, “wrinkles appear reduced; skin looks smoother; skin feels firmer; skin is hydrated; skin feels more toned; skin feels more supple; complexion looks more even; skin is luminous; skin texture feels refined; skin looks plumper; it’s not a facelift, it’s Revitalift”.
Complaint / Decision
All of the adverts were challenged on the basis that the images shown misleadingly exaggerated the effects that could be achieved by the products. Of note is that Jo Swinson MP was the complainant in relation to the advert featuring Rachel Weiss.
The complaints made in relation to the Age Re-perfect cream and the mascara adverts were not upheld. Only the complaint made by Jo Swinson in relation to the Revitalift advert was upheld.
When adjudicating on the mascara advert, the ASA considered that, although post-production techniques had been used in the production of the advert, the length and volume of the lashes shown in the advert did not go beyond what a consumer would expect to be able to achieve when using the product. This was verified by the photographs provided by L’Oréal of consumers wearing the product which showed lashes comparable to those shown in the advert, despite not having been subject to post-production techniques. Clearcast also said that they had been assured by the agency and the advertiser that the advert had been created in line with the CAP Help Note on production techniques in cosmetics advertising. As a result, the ASA considered that the illustrated effect shown was in line with the effects shown in the consumer photos and therefore the advert was not misleading.
In relation to the adverts featuring Jane Fonda and Rachel Weiss, the ASA stated that they considered that consumers were likely to expect a degree of glamour in images for beauty products and would therefore expect the models to have been professionally styled and made-up for the photo shoot, and to have been photographed professionally. They also acknowledged that advertisers were keen to present the products in their most positive light, using techniques such as post-production enhancement and the re-touching of images. The ASA said that they considered this approach was acceptable, so long as the resulting effect was not one which misleadingly exaggerated the effect the product was capable of achieving.
In relation to the advert featuring Jane Fonda, the ASA noted the overall appearance of the image of Jane Fonda that appeared in the advert had not been significantly modified and concluded that the image did not exaggerate the effect that could be achieved by the product. However, the advert featuring Rachel Weiss made a number of claims. In relation to the claims that the product made skin feel firmer, toned, supple and refined, which related to tactile rather than visible effects, the ASA acknowledged that these effects would not be represented in the image. The ASA also considered that the claims that skin appeared plumper and hydrated were acceptable claims for a moisturising product.
However, with regard to the remaining claims, that “skin looks smoother” and “complexion looks more even”, the ASA found that, despite the image not misrepresenting the luminosity or wrinkling of Rachel Weisz’s face, the image had been altered in a way that substantially changed her complexion to make it appear smoother and more even. Therefore these claims were considered misleading.
These adjudications show the ASA taking a more reasonable approach and acknowledging that there is a place for post-production techniques, provided that they do not go too far. Post-production techniques have been a particular focus of the ASA for some time. Jo Swinson MP has been a long-time campaigner in this topical area, having made previous complaints to the ASA. Both the ASA and Jo Swinson recently took part in an interview with BBC Radio 4 Woman’s Hour to discuss the above adjudications.
COMPUTERS AND TELECOMS
3. LG Electronics Ltd, 1 February 2012
This adjudication concerned a press advert, the advertiser’s website and a sales promotion. The press advert was headlined “It's 3D TV (But not as we know it)”, with further text including: “Unlike other 3D TVs, with LG Cinema TV, everyone will feel the full effect of the 3D experience. That's because the ultra wide viewing angles allow you and your family and friends to sit where you want in comfort….” The website stated “LG Cinema gives you wider viewing angles so you don't have to rearrange your living room. You can sit where you want, how you want, and you'll still get the same immersive 3D experience… the LG Cinema 3D TV produces a brighter and clearer picture in stunning FULL HD 3D picture quality”. The sales promotion for LG 3D Cinema included the text “FULL HD 1080P”.
Complaint / Decision
Complaints were lodged by both Samsung Electronics and a technology journalist, challenging whether the claims "Full HD 3D Picture" and "FULL HD 1080p" and "HD 1080p" were misleading because they believed the technology used passive 3D technology which had a lower line resolution than that used by full HD. In addition, they challenged whether the claims "you can sit where you want, how you want and you'll still get the same immersive experience" and "That's because the ultra wide viewing angles allow you and your family and friends to sit where you want in comfort" could be substantiated, because they understood passive 3D televisions had a very small viewing angle for 3D content.
The ASA upheld the complaints in relation to the HD claims. Samsung and LG each provided arguments, in relation to the definition of Full HD and the supporting technology involved. The ASA noted that there was no official standard definition of Full HD, but agreed with Samsung that it was commonly understood by both the industry and consumers to have a particular meaning (i.e. a screen with a line resolution of 1920x1080). Because this effect could only be achieved by using the advertised product with additional passive technology (3D glasses), and the adverts did not make this clear to the consumer, the ASA considered the claims (in the absence of clarification) to be misleading.
The ASA said that LG was wrong to state that the 3D picture was 1080p when, by its use of passive 3D technology, which interlaces right- and left-eye images, the 3D view is, at best, 1080i.
In respect of the claims relating to viewing position, the ASA considered that they would be interpreted as meaning that the viewer would be able to view the content in 3D, provided that they were seated in a such a way that they could comfortably view the entire screen and that consumers would be aware that the 3D image would be distorted if viewed outside the optimum angle. The ASA considered that the viewing angles were within the expectation of the average consumer who had an interest in 3D TVs and therefore considered that these claims were not misleading.
The ASA makes clear in this adjudication that the distinction between passive and active 3D is important, and that advertisers should make clear to consumers which system is being used, and note any additional requirements needed to achieve resolution.
4. Virgin Media Ltd, 15 February 2012
This adjudication concerns three national press adverts for a set-top box. The first was headlined “This new box leaves Sky+ looking like a relic from a bygone era.” The second included the text “Only Virgin Media gives you the freedom to record two shows while watching a third. Or record three shows while you watch something you've recorded earlier ...” The third was headlined “A truly next generation PVR that should have Sky shaking in its boots” and the further text “Virgin Media TiVo Service. Stuff thinks it's the best way to watch TV. Ever. What do you think? ...”
Complaint / Decision
There has been an ongoing battle between Virgin Media and BSkyB in relation to their adverts. In this complaint, BSkyB challenged whether the claim referring to Sky was misleading because their HD 1TB set top box was the product most comparable to Virgin’s, not Sky+. They also challenged the second advert on the basis that the Sky+ HD box also allowed viewers to record two shows while watching a recorded programme. In the third advert, BSkyB challenged the claim that Stuff magazine had ranked TiVo ahead of the Sky+ HD 1TB box on the basis that it was misleading.
The ASA noted that competitors’ products should generally be compared with the most directly comparable product, but considered that the claim in the overall context of the first advert was clearly the reviewer’s opinion and would be interpreted as a general comparison with Sky+ (as opposed to with a specific set top box). The claim was therefore found not to be misleading.
The ASA held that the claim in the second advert was not misleading because it would be interpreted in the context of the additional sentence as referring to the fact that consumers would be able to record two shows while watching a third live programmes. As this could not be done with other set top boxes, the claim was considered to be correct.
The ASA examined the reviews of both Virgin and BSkyB set top boxes in Stuff magazine. It considered that the claim did not give a true reflection of all the reviews combined, and Virgin should not have implied that its set top box was ranked above BSkyB’s. The ASA noted that claims in testimonials, likely to be interpreted as factual by consumers must not be misleading.
ENERGY
5. Solarking UK, 15 February 2012
A radio advert included the following voiceover: “You've heard the stories, energy prices rising week after week after week, so stop worrying and do something about it now. Generate your own electricity. Become energy-bill free. Help yourself and the environment. Make it happen with Solarkinguk.com. Solarkinguk.com are a national company, based right here in the North West, who will help you become energy-bill free and provide you with a guaranteed return on your investment for the next 25 years. Solarkinguk.com will even provide you with a three-year, zero per cent payment plan to help you become your own energy provider. So is your home suitable? Find out now at Solarkinguk.com.”
Complaint / Decision
One complainant challenged whether ‘energy bill free’ was misleading, given their belief that Solarking products and services would not cover the energy costs of an average home.
The ASA considered that consumers would be likely to consider the advert to mean that all consumers with suitable homes would be able to become energy-bill free. As Solarking had not provided any documentary evidence to show that their products and services could enable an average household to make the savings claimed, the advert breached the Code rules in relation to misleading advertising, substantiation and exaggeration.
This is another example of the ASA upholding complaints against solar panel businesses which advertise services for reducing or eliminating energy bills, without clarification of the limitations on how these effects can be achieved.
FASHION
6. Levi Strauss & Co t/a Levi’s, 1 February 2012
A magazine advert pictured three young people holding lit fireworks. Accompanying text stated “When all is said and done, have you done or said enough? Have you just gone along for the ride, or have you steered destiny's hot rod? When you leave this world, did you make it any better than it was when you arrived? All you need is all you've got; your wits and the clothes on your back. Your epitaph is yours to earn; your legacy is yours to make. Go forth”.
Complaint / Decision
One complainant challenged whether the advert was harmful and irresponsible because it encouraged young people to play with lit fireworks.
Despite a number of safety precautions, such as using models 19 years old and older, and positioning them standing a certain distance apart and in an open space, the ASA considered that the overall impression would be of young people holding lit fireworks. Although the advert was placed in a magazine with 93% of its readers being over the age of 18, the ASA considered that it would not be possible to prevent some younger people from viewing the advert. The advert also appeared in late autumn, when fireworks would be more widely available due to Guy Fawkes Night and Diwali. The ASA considered that this would increase the likelihood of emulation by children. The ASA further considered that the text would encourage risk taking and daring. It concluded that the advert as a whole breached the Code rules in relation to social responsibility and harm and offence.
The risk of children emulating dangerous activity is something that the ASA takes very seriously. This adjudication accords with the ASA’s adjudication in July last year in which complaints were upheld against Win Green Trading Company Ltd for their catalogue advert for a “fire station” play tent which featured images of young children pretending to extinguish a real fire. The complaints were upheld on the basis that the advert would appeal to children because it featured children in a realistic situation and children would have an interest in the product being advertised, hence it was likely to encourage children to emulate the dangerous activity shown. This contrasted with the ASA’s adjudication in the same month on complaints made against a TV advert for a new ride at Thorpe Park, featuring cleaners playing around on a floor buffing machine. The complaints were not upheld in that instance because the advert did not feature children, they would not have access to the equipment being used and therefore, the ASA considered that they would be less likely to emulate the activity in the advert.
7. Marks and Spencer, 15 February 2012
This adjudication concerned a moving digital poster screened in London underground stations, featuring black and white images of two women looking out directly at the viewer, posing and smiling as if in front of a mirror. The women were dressed in underwear in a bedroom setting, as if getting ready for a night out. This image alternated with another image of the same women fully dressed, as if on a night out.
Complaint / Decision
Three complainants complained that the advert was offensive and inappropriate for display in a public location. One of these complainants also challenged whether the advert was unsuitable to be seen by children.
The ASA did not uphold the complaints. They considered that, whilst the advert showed the women posing in a flirtatious way and could therefore be seen as mildly sexual, the images were not sexually suggestive or explicit. This was contributed to by the juxtaposition of the underwear images with the fully clothed images. The ASA considered that the alternating images clearly told a story about the women getting ready for a night out.
Whist the ASA acknowledged that some people might have found the public display of the images of the women in their underwear to be distasteful, they noted the content of the advert reflected the clothing products being sold and so did not consider that it would cause widespread offence, nor be unsuitable to be seen by children.
This is consistent with the ASA’s recent adjudication on a previous Marks and Spencer lingerie advert, reported on in our November 2011 ASA Snapshot.
FOOD & DRINK
8. Aldi Stores Ltd, 1 February 2012
Aldi emailed consumers to invite them to “try the Aldi challenge”, setting out the comparative prices of 13 premium brand products and 13 equivalent Aldi products. Text between the two sets of products stated “SWAP AND SAVE OVER 40%*”, with qualifying text stating “Based on a selection of branded products checked on mysupermarket.com on 20/01/2011. The cheapest competitive price pro rata has been used for ‘other supermarkets’ using the top three retailers. This does not include offers or multibuys. Aldi prices and packaging correct as of 20/01/2011.”
Complaint / Decision
One complainant challenged whether the comparison was unfair and misleading because the comparison was between premium-brand and non-branded items. The ASA challenged whether the ‘other supermarkets’ price claim was misleading as it did not identify which items were from which of the top three retailers.
The ASA first published its adjudication on this advert on 13 July 2011, upholding both complaints, as reported in our July 2011 ASA snapshot. However, it has subsequently amended the adjudication and reversed its decision on the second complaint on the allegedly misleading ‘other supermarkets’ price claim, deciding not to uphold it (its decision on the first complaint remains as before).
The ASA noted that it would be clear to a consumer visiting the mysupermarket.com website who the top three other retailers were and given that Aldi had calculated the overall price saving by choosing the cheapest available prices on offer from the other three retailers, the ASA considered that overall the advert was not misleading on this issue. This is a good example of the ASA re-visiting an adjudication if it feels that it was incorrectly decided in the first instance.
A similar adjudication, ASDA Stores Ltd, 8 February 2011, concerned an advert with an image of a woman stating “We’ve saved over £15 against Tesco” which was challenged by Tesco. The ASA considered that the comparison made (saving money against Tesco products) was clearly set out as a customer testimonial and did not imply that customers could regularly expect to achieve savings of this amount. The ASA also noted that the products selected for the comparison had been chosen by the customer and used promotional prices used by ASDA’s competitors as well as ASDA, if applicable.
9. Kellogg Marketing and Sales Company (UK) Ltd, 1 February 2012
A TV advert described a breakfast cereal as a ‘Mini Morning Maximiser’, with a voice-over stating “New Kellogg’s Mini Max is a tasty mini mouthful that’s packed with wholegrain fibre and a good breakfast will help get them ready to make the most of their morning”.
Complaint / Decision
One complainant challenged the impression given of the product’s nutritional and health benefits, given it contained 18g of sugar per 100g. The complaint was not upheld. The ‘packed with fibre’ nutritional claim satisfied the relevant EC regulation requirements, the wording was considered to be a general statement, not a health claim, and although the product was deemed as high in sugar (over 15g per 100g), it was not a high in fat, salt or sugar (HFFS) food. Taking into account the sugar GDA for children and its clear visibility on the product in the advert as frosting, the ASA considered that the claims were not misleading and did not breach the Code rules on health or nutrition claims.
Another Kellogg adjudication involved an online game for its Krave cereal which involved chasing pieces of chocolate. The Alliance for Better Food and Farming challenged whether the game encouraged poor nutritional habits and an unhealthy lifestyle in children (the CAP Code defines a child as someone under 16 years of age). The complaint was not upheld because Kellogg’s had taken steps to ensure that people under 17 could not access the game by making it only accessible through Facebook by those whose existing Facebook profile information (i.e. that which had been inputted when setting up the account, which was likely to have been some time before the user had attempted to access the game, and when the user had little reason to misstate their age) showed them to be over 17 years old.
10. Antonio Federici, 29 February 2012
A magazine advert for ice cream read “THE THREE VERY WISE ICE CREAM MEN”, featuring a Christmas nativity scene with Mary holding a spoon and the three wise men bringing ice cream.
Complaint / Decision
Fourteen complainants challenged whether the advert was offensive on religious grounds. The ASA noted that the advert might not be to everyone’s taste, but considered that most consumers would understand it to be light hearted and did not uphold the complaints.
Religion is always a very sensitive area where complaints can often be upheld. A number of previous complaints on the same grounds have been upheld against Antonio Federici in the last few years in relation to other magazine adverts playing on religion, including images depicting two priests in robes looking like they were about to kiss, a heavily pregnant woman dressed as a nun standing in a church, and priest and a nun looking as if they were about to kiss.
11. Bacardi-Martini Ltd, 8 February 2012
This adjudication concerned an online prize promotion by Bacardi Oakheart, which featured as the background of the Kiss FM 'Kube' website.
Complaint / Decision
The complainant challenged whether the alcohol promotion was irresponsible and inappropriately targeted, because he understood that Kiss FM's core demographic was 15 to 24 year olds.
The complaint was not upheld. Bacardi said that they had chosen Kiss FM because it fit with their advertising demographic, with 76% of Kiss FM listeners being aged 18 and over. Bacardi was able to show that this had been verified with Radio Joint Audience Research and Neilson figures. Bacardi also demonstrated that, after clicking on the advert, participants were required to go through an age gate page that contained a responsible drinking message and asked them to confirm they were over the legal drinking age. In addition, once the winner was chosen the agency rang them and asked them to confirm in writing that they were over the legal drinking age. As a result the ASA concluded that the promotion was not irresponsible, nor inappropriately targeted.
Bacardi’s ability to show that it had undertaken proper investigation of the core demographic of the medium which it used to place the advert and had consulted well respected industry bodies to verify this, along with the age verification procedure demonstrates that it is possible to ensure compliance with the strict rules surrounding the advertisement of alcohol, whilst still being involved in youth culture.
TRAVEL & TOURISM
12. Ryanair Ltd, 15 February 2012
This adjudication concerned two press adverts for Ryanair. Both featured the image of a woman in bra and pants with the text “RED HOT FARES & CREW!!!... BUY THE 2012 CABIN CREW CHARITY CALENDAR ON RYANAIR.COM!” one stated "ORNELLA FEBRUARY" and the other, "GILLIAN MARCH".
Complaint / Decision
Thirteen complaints were received about the first advert (in which the woman in the image posed with one hand on her hip and the thumb on the other hand slightly pulling down her pants), and four complaints were received about the second advert (in which the woman held a more neutral pose). All complaints challenged whether the adverts were sexist and objectified women, and were offensive and unsuitable for display in a national newspaper.
Ryanair said that the adverts promoted their calendar, for which the female employees featured had volunteered. However, this was not sufficient to convince the ASA which found that, although not overtly sexual, the images in conjunction with the text and the names of the women would have the effect of linking female cabin crew with sexually suggestive behaviour. The ASA considered that when displayed in a national newspaper, the advert was likely to cause widespread offence.
Ryanair are generally always keen to be provocative and push the boundaries of acceptability with their adverts and this example is no exception. Once more, the complaints made by Ryanair are likely to have had the desired effect of increasing publicity.
The relevance of the product being advertised, and the importance that the ASA places on overall context when considering sexual type images, is also demonstrated in another adjudication this month in which the ASA upheld complaints against BSS Group Ltd t/a Birchwood Price Tools 22 February 2012, a workwear and tool company. The adjudication concerned a poster promoting a competition to win "the ultimate lads' bash for you and 3 mates" which featured included images of women in underwear in seductive poses.
Further, in 1st Choice Glazing Ltd, 1 February 2012, the ASA considered a regional press advert and a mobile poster advert for a glazing company, featuring a photograph of a naked woman’s torso, with the woman’s breasts mostly covered by two large flowers. Although the ASA noted that the image was not presented in an overtly sexual way, it considered that the exclusion of the woman’s head from the image was likely to be considered by consumers as an invitation to view the woman’s naked torso, in particular her breasts, and that the lack of relevance to the product being advertised led to the nakedness being incongruous. The ASA therefore concluded that both adverts were likely to cause serious offence, and the poster advert was irresponsible because it could be seen by children.
These adjudications can be contrasted with the ASA’s adjudication on Channel 5 Broadcasting Ltd, 15 February 2012, which concerned a roadside billboard poster for a TV programme featuring a picture of a naked woman covered by magazines. Accompanying text stated: "The cover girl. uncovered ... starts November ... Tamara Ecclestone: Billion $$ girl ... New series ... Channel 5".
Three complainants challenged whether the depiction of nudity was offensive and inappropriate to be seen by children. The ASA did not uphold the complaints. The ASA particularly considered that the nature of the TV programme being advertised meant that viewers of the advert were less likely to regard the advert as gratuitous and objectifying women. It noted that there was no explicit nudity in the image because the woman was covered by magazines. It also considered that the advert did not draw undue attention to body parts in a sexual way and there was nothing in her body language or facial expression which was likely to be considered sexually suggestive.
A similar conclusion was reached in Urban Crowd Ltd t/a Urban Tiger, 1 February 2012, concerning an advert for a lap dancing club. The ASA originally received complaints about the advert in August 2011, and concluded that, because the images were only mildly sexual, the woman’s stance not sexually suggestive and the language used was non-sexual, the advert was unlikely to cause serious or widespread offence, would not be seen as objectifying women, nor would it be likely to cause harm to children (particularly given that most images relating to such services were likely to be at least mildly sexual). In accordance with the ASA’s guidance on sexual imagery in outdoor advertising, it decided to re-consider the complaints about sexual imagery in outdoor advertising in light of a new compliant made in October 2011, but again reached the same conclusion.
13. TripAdvisor LLC, 1 February 2012
This adjudication concerned claims on the holiday and travel consumer reviews website, tripadvisor.co.uk, which stated "... read reviews from real travellers ... …. TripAdvisor offers trusted advice from real travellers and a wide variety of travel choices and planning features ... TripAdvisor.com features: More than 50 million honest travel reviews and opinions from real travellers around the world".
Complaint / Decision
KwikChex Ltd and two hotels challenged whether the claims were misleading and could be substantiated, because they understood that TripAdvisor did not verify the reviews on their website and therefore could not prove that the reviews were genuine, or from real travellers.
The ASA upheld the complaints. Although the ASA noted that, prior to posting a review, reviewers were asked to declare that their review was their genuine opinion of the hotel and that they had no personal or business affiliation with the hotel, or been offered an incentive to write a review for it, they also noted that reviewers were not asked to similarly confirm that they had no competitive interest in the place they were reviewing, or that they were not posting a review on behalf of a competitor or other interested party. The ASA did not consider that the existing declaration would necessarily prevent non-genuine reviews from being posted on the site and considered that, whilst TripAdvisor took steps to monitor and deal with suspicious activity, it was possible that non-genuine content would appear on the site undetected.
The ASA considered that although TripAdvisor allowed hoteliers a ‘right of reply’ to critical or negative reviews posted on the site, consumers would not necessarily be able to detect and separate non-genuine reviews from genuine content.
However, the main reason for upholding the complaints related less to the adequacy of the screening mechanisms on the site and more to the fact that this meant that the claims made on the site, that implied that consumers could be confident that all review content on the TripAdvisor site was genuine, were misleading as a result.
This adjudication is perhaps not surprising following the recent media attention given to this issue, in particular, the Channel 4 documentary, Attack Of The TripAdvisors, which explored the impact of negative comments on hotels, B&Bs and restaurants. In November 2011, TripAdvisor attempted to address the issue by opening phone lines for aggrieved hoteliers to report reviews that they felt were not genuine, but this was not particularly well received.
The complainant KwikChex.com helps companies manage their online reputations. Their complaint to the ASA was apparently brought following the receipt by it of concerns over two thousand hotel and restaurant owners.
Following the adjudication, the tripadvisor.co.uk homepage now contains no reference to the word "trust" and simply describes itself as "the world's largest travel site”. However, the impact of this adjudication is not as far-reaching as those affected would like. Because the ASA’s remit only extends to claims targeted at a UK audience, it has not been able to pursue claims on the international sister site, tripadvisor.com, (also accessible on the UK, but with an international target demographic) which continues to claim "you'll find real hotel reviews you can trust".
HOUSEHOLD
14. The Sofa King Ltd, 29 February 2012
A regional press advert carried the slogan “The Sofa King – Where the Prices are Sofa King Low!”
Complaint / Decision
Three complainants challenged whether the slogan, was offensive and unsuitable for general display.
Although previous complaints to the police in 2004 had not been taken further by the Crown Prosecution Service, and the slogan had been used for the company continuously for the previous nine years, the ASA considered that the slogan was likely to cause serious or widespread offence and upheld the complaint. It considered that the slogan could be interpreted as a derivative of the swear word ‘f***’, which research had shown to be so likely to offend that it should not be used in adverts at all. Perhaps unsurprisingly, this adjudication has generated a fair amount of media attention.
15. Robert Dyas Holdings Ltd, 8 February 2012
This adjudication concerned an advert for a kettle in the Robert Dyas catalogue which stated “£39.99 £19.99 ½ Price”.
Complaint / Decision
The complainant challenged whether the savings claim was genuine, because he understood that the product had been sold at the lower price for several years.
The ASA upheld the complaint, noting Robert Dyas’ response that the advert was actually a misprint and the higher price should have been expressed as a recommended retail price. Despite this, because Robert Dyas were unable to provide substantiation to show that the product had sold for the higher price, the ASA found the advert to be misleading.
This decision serves as a reminder to advertisers of the importance of complying with the Consumer Protection from Unfair Trading Regulations 2008, under which recommended retail prices should not be used as a basis of comparison if they differ significantly from the price at which the product is generally sold.
16. Comet Group plc, 8 February 2012
This adjudication concerned a TV advert which set out the discounts available on certain products, all of which had only been sold at their original higher price for periods of one or two weeks.
Complaint / Decision
One complainant challenged whether the savings claims were misleading because they did not believe that the items had been offered at the higher prices for a period of time sufficient to avoid consumers being mislead as to the extent of the savings claimed.
The ASA noted that the BIS guidelines recommended that the price used for the basis of a comparison should be the most recent price that had been available for 28 days or more prior to a promotion. However, the ASA did acknowledge that this was only a guideline and not binding on traders. As a result, he ASA considered that having the goods available at the higher price for a 14 day period prior to the promotional period was acceptable in these circumstances. However, it considered that a price at which goods had only been available at for 7 days prior to the promotion could not be considered a genuine retail price. As the prices in relation to two of the products advertised were therefore not genuine retail prices, those comparisons were misleading.
17. The Hut.com Ltd t/a IWantOneOfThose.com, 15 February 2012
This adjudication concerned a magazine advert displayed between 24 and 30 September 2011for a sales promotion, stating: "... IWantOneOfThose.com is offering RT readers a further £5 off on the stylish and compact Bush DAB radio with iPod dock ... This offer is available until 19 October 2011 ... ".
Complaint / Decision
The complainant challenged whether the advertisers had made a reasonable estimate of the likely response to the promotion and were capable of meeting that response, because having attempted to redeem the offer on 26 September 2011, he was informed that no stock was available.
The adjudication was upheld. IWantOneOfThose.com gave details of two sales promotions for other products that it had previously advertised in the same publication, for which the numbers of redemptions had been very low (16 and zero). As a result they believed that the current advert would not generate more than 14 redemptions.
However, because the magazine publisher gave information that offers for radio products in that publication usually received in excess of one hundred redemptions, and the previous promotions were aimed at a more specific target market, the ASA considered that the previous promotions were not sufficiently similar to the current promotion to provide a reasonable basis for estimating demand for the current promotion.
This is similar to an adjudication previously reported on in our December 2011 ASA Snapshot and reminds advertisers of the need to ensure that they base any estimates of demand for promotions on sensible grounds, and ensure that once stocks run out, advertising of the promotion ceases. It is also essential to indicate that stocks may be limited.
OTHER
18. MyCityDeal Ltd t/a Groupon UK, 1 February
This adjudication featured an advert for sportswear, stating "One Pair of Weight Loss HOTPANTS™ for £19 from Zaggora (58% Off)", "Uses Celu-Lite™ technology” and “these magnificently comfy HOTPANTS™ are designed to aid clients in their transformation into a smaller Russian doll self, in conjunction with a healthy diet and lifestyle.”
Complaint / Decision
A sports company and a member of the public challenged that the advert was misleading because they believed it implied that using the product would lead to weight loss. The ASA challenged whether the reference to "Celu-Lite technology" misleadingly implied that the product was capable of decreasing cellulite.
The ASA considered that the headline "Weight Loss HOTPANTS™" implied that the product itself was capable of causing weight loss. Although they noted that only the “hotpants” element was subject to the trade mark, they did not consider the small print disclaimer "Results may vary, should be undertaken with a controlled diet and healthy lifestyle" was sufficient to qualify the implied claim. In addition, Groupon had said that they believed Celu-Lite was a trademarked term, however, the ASA noted that at the point the advert appeared, the trademark had been abandoned. As a result, and in the absence of evidence to substantiate that that the product could aid weight loss or reduce cellulite, the ASA found the advert to be misleading.
This is another in a long list of adjudications against Groupon. Following our previous coverage of the OFT announcement of its investigation into Groupon and its trading practices, the OFT announced on 16 March that it had accepted undertakings from Groupon to the effect that it will make changes to ensure that: reference prices (adverts that compare an original reference price against a sale price), including savings, are accurate, honest and transparent; it will carry out an accurate, honest and realistic assessment of a merchant's ability to provide goods or services in the quantity or time frame suggested; it will display clearly, prominently and on the same screen or before purchase all the limitations which apply to any deal; it will take reasonable steps to ensure that health or beauty product claims are supported by adequate substantiation; its terms and conditions are fair; and it will apply refunds policies and cancellation rights in accordance with the Distance Selling Regulations.
The OFT has said that it will monitor complaint numbers closely and has required Groupon to inform the OFT of any complaints it receives. Groupon have been informed that breaches of any of these undertakings could lead the OFT to apply for court enforcement orders.
19. Electronic Arts Ltd, 8 February 2012
This adjudication concerned a TV advert for a console game, including an animated character that had a human body and a dog's head, featuring in a variety of animated scenes. The scenes included the man playing a guitar surrounded by animals and other people, being shown in a bath and then appearing about to kiss a woman on a bed.
Complaint / Decision
Several complainants challenged whether the advert, in particular the scene with the couple on a bed, was likely to cause serious or widespread offence and whether it was suitable to be broadcast when children might be watching.
The ASA did not uphold the complaints. It considered that the advert made clear that it was for a videogame and that the scenarios were not a reflection on real life. In addition, although it acknowledged that some viewers might find the scene of the couple on the bed, distasteful, it considered that most viewers were likely to interpret it as being light hearted and mildly suggestive, rather than overtly sexual, and as such, it was not offensive. In term of suitability for children, because the scene of the couple did not actually feature kissing, the ASA considered that the advert did not contain anything that was likely to cause harm or distress to children.
This is a good example of the ASA taking a sensible, proportionate response to potentially offensive adverts. It is notable that the advert had already been cleared by Clearcast with no timing restriction.
20. Cassava Enterprises (Gibraltar) Ltd t/a 888.com, 29 February 2012
This adjudication concerns a TV advert for an online poker site. The advert showed a man sitting down at his computer and turning on his webcam. A voice-over stated "Turn your webcam on at 888 Poker and play face-to-face online. You never know who you might meet at a poker cam table…” The advert showed a virtual poker table with screens around it, showing different people waving at the man and interacting with him, including a group of three women, and a woman lying by a swimming pool in a bikini.
Complaint / Decision
The complainant challenged whether the advert linked gambling to seduction and sexual success.
The ASA upheld the complaint. The ASA noted that online poker with a webcam was a relatively new innovation, and that 888.com wished to show how versatile and interactive it could be through a number of different settings and characters.
However, the ASA considered that the interactions between the characters in the advert were not purely platonic. In particular, by removing her sunglasses, tilting her head, and moving her shoulders as she raised the stakes, the actions of the woman pictured by the pool were flirtatious and seductive, particularly when combined with the statement "You never know who you might meet at a poker cam table".
The ASA also considered that the voice-over combined with the interactions between the players linked gambling and seduction.
The strict requirements relating specifically to adverts for gambling are comparable to those that apply to alcohol advertising and the ASA has taken a similar approach in this adjudication to recent adjudications for alcohol adverts. In particular, adverts must not link gambling to seduction, sexual success or enhanced attractiveness.
