ASA Adjudications Snapshot – May & June 2017

This summary provides a selection of May and June’s most interesting ASA adjudications and highlights the key issues considered in those rulings.

This edition features another adjudication concerning an advert by Protein World Ltd that attracted a lot of media attention. The adjudication analyses the balance between creating a sense of light-hearted challenge in relation to weight loss whilst avoiding the encouragement of dangerous dieting behaviour. The ruling emphasises the importance of using models that are in proportion and appear healthy.

This edition also features a selection of rulings that assess whether or not an advertiser encouraged emulation in connection with certain irresponsible or dangerous acts, whether a gambling advert was targeted at children and whether an advert contained insufficient information in relation to price and number of products in a collection.

ADJUDICATIONS

RETAIL

1. ASA Ruling on A Share & Sons Ltd t/a ScS – 14 June 2017 – an advert was found to misleading as it did not make clear when the offer ended.

MOTORING

2. Volvo Car UK Ltd – 17 May 2017 – two adverts were found to misleading as the adverts misleading portrayed the effects of the product used.

3. Mercedes-Benz UK Ltd – 21 June 2017 – an advert for a four-wheel drive system was found to be substantiated and not misleading.

FOOD AND DRINK

4. Arla Foods Ltd – 7 June 2017 – an advert for organic milk was found to be misleading due to an unsubstantiated claim.

5. Global Brands Ltd t/a VK – 14 June 2017 – an advert for alcohol was found to be in breach of the Code as the advert depicted binge drinking and featured people who appeared to be under the age of 25.

FINANCIAL SERVICES

6. Santander UK plc – 10 May 2017 – an advert featuring potentially unsafe acts was not found to be irresponsible as the advert was not targeted at children and there was therefore no serious risk of emulation.

HEALTH BEAUTY

7. Protein World Ltd ­– 10 May 2017 an advert was not found to be irresponsible as the model was in proportion and the challenge to ‘keep up with a Kardashian’ was jovial double entendre.

GAMBLING

8. Bear Group Ltd t/a Daily Star Wins – 10 May 2017 – an advert was found to have objectified women and to link gambling to enhanced sexual attractiveness.

9. Ladbrokes Betting & Gaming Ltd – 17 May 2017 – in a reversed decision from the ASA, an advert for betting services that featured a Marvel character was not found to be irresponsible as the advert was carefully targeted to an over 18 age-verified audience.

OTHER

10. FxPro UK Ltd – 17 May 2017 – an advert for an online broker was found to be irresponsible as it glamourised risk taking and the characters in the scenes were unlikely to be familiar with trading financial products.

11. National Geographic Society t/a www.ourmathematicalworld.co.uk – 24 May 2017 – an advert for a collection of mathematics books was found to be misleading as the pricing for subsequent issues in the collection was unclear.

12. World Consortium Etna – 31 May 2017 – an advert was considered to have failed to distinguish itself from editorial content.

RETAIL

1. ASA Ruling on A Share & Sons Ltd t/a ScS – 14 June 2017

An in-store promotional advert for discounted sofas stated “Double Discount Sale Last Few Days”.

Complaint / Decision

The complainant challenged whether the promotion had been conducted fairly and was misleading on the basis that it was not clear when the offer ended. The complainant visited the Swansea ScS store on Saturday 7 January and stated that he saw a promotional poster in the store that stated that the sale “Must End Sunday”. It was confirmed by a member of staff that the sale would end on 8 January. He subsequently revisited the store on 12 January and noted that the same discount was still being applied.

In response, the advertiser stated the promotional advertising on the weekend of 7 and 8 January 2017 stated that the offer “must end soon” and on the following weekend (14 January), they advertised that that promotion was ending on Sunday (15 January). The advertiser also stated that the closing dates for their promotions were already included in their press, TV and online advertising and that point of sale (PoS) displays, which were only displayed during the promotion, were generally not covered by the CAP Code except those covered by the promotional rules. Therefore PoS was not the prime method of determining compliance with a promotion, but should be interpreted in conjunction with all the other types of advertising and marketing material used in a promotion.

In upholding the challenge, the ASA considered that the absence of a closing date would mean that consumers would not be able to determine precisely when the promotion was to end, and emphasised the requirement to communicate all applicable significant conditions or information. The closing date was considered to be significant information.

In addressing the advertiser’s response that the closing date was included in other marketing material the advertisers had produced for the promotion, across a range of media, the ASA took the view that it was not sufficient to rely on other, separate elements of the marketing campaign to communicate significant conditions or information about a particular promotion to consumers.

This ruling provides a reminder of the importance of including all important conditions and information on all forms of sales promotions in order to avoid confusing consumers. The closing date is always considered important, as without it, consumers may feel pressured to make a purchase. This is particularly important in the furniture retail industry, which is coming under increased scrutiny by the ASA in relation to misleading sales promotions.

MOTORING

2. Volvo Car UK Ltd – 17 May 2017

The adjudication concerned two video adverts, one on Youtube and one on Volvo’s own website, for Volvo Lifepaint, a spray paint designed to increase cyclist visibility in the dark. The adverts showed cyclists in an urban environment first applying Volvo Lifepaint to their bicycles, clothes and safety gear, and then cycling in the dark with the Life Paint sprayed areas glowing. The website version of the ad included text at the bottom of the web page, visible after scrolling down, stating: “In the making of this film we used both reflective paint products available from Albedo 100”.

Complaint / Decision

The complaint challenged whether the adverts were misleading on the basis that the products could not produce the effects shown.

In response to the complaint, the advertiser stated that LifePaint was designed primarily for textiles and therefore despite the fact that LifePaint could also achieve the same effect as shown in the advert on the bicycle frames, they chose to use an oil based spray designed for metal surfaces, as the LifePaint did not last long on metal surfaces and would need to be reapplied. The advertiser provided a video that showed the LifePaint being used on a bicycle frame before being illuminated by headlights.

The ASA upheld the complaints. As the adverts gave equal prominence to the bicycles as it did to the clothing of the riders, including showing the product being sprayed on the bicycle, it was considered that consumers would expect LifePaint to work equally on both surfaces. The advert was therefore misleading. The ASA also considered the impact of the disclaimer in the website version of the advert that the advert used two separate paints, with LifePaint only being used on the clothes. Even if this disclaimer had been sufficient to overcome the misleading impact of the images, the ASA considered this to be material information which should have been given sufficient prominence and not presented separately from the video, further down the page.

The misleading use of the dramatic images in this advert was clearly key to the outcome of this ruling, and no disclaimer would have worked to counter the impact of the images, but the decision also makes clear that, if you are seeking to rely on any disclaimer, it needs to have sufficient prominence.

3. Mercedes-Benz UK Ltd – 21 June 2017

The advertiser’s website contained a page about their 4MATIC range – a 4-wheel drive system. Text stated “Driving performance. whatever [sic] the conditions”. This was followed by text that stated “4MATIC is far more than just a standard 4 wheel drive. This system automatically adjusts to allow you to drive across different types of terrain and road surface. If any of the four wheels begins [sic] to slip, power is automatically sent to the opposite wheel - no matter which wheel. Even if three of the four wheels are affected, the fourth wheel will adjust to support your driving conditions. This truly is driving enjoyment on any road!” Further down the page there was an image of a Mercedes Benz vehicle. Beside the image text stated “… Light and nimble or powerful and efficient, 4MATIC is the perfect traveling companion for all seasons”.

Complaint / Decision

The complainant, who had purchased a Mercedes Benz vehicle, challenged whether:

1. the claim “Driving performance. whatever [sic] the conditions” was misleading and could be substantiated, as they believed the system could not drive in all conditions without further modification; and

2. the claim “… 4MATIC is the perfect traveling companion for all seasons” was misleading because it did not make sufficiently clear that additional equipment was required after purchase to enable driving in all conditions/seasons.

In its response, the advertiser provided an example of a performance test which had been completed during adverse conditions (with snow) on two identical models with no modifications – one a two-wheel drive and the other a 4MATIC vehicle. They said this demonstrated that the 4MATIC vehicle was able to perform similarly to the theoretical maximum performance of the vehicle in adverse conditions, whereas the two-wheel drive model performed at a lower level.

The ASA accepted that the purpose of the advert was to explain the benefits of the technology, being an automatic system for distributing power between the vehicle’s four wheels, unlike traditional four-wheel drive vehicles, which typically distributed power to all four wheels at the same time. As such, consumers would understand the claim to mean that its system was designed to perform in typical weather and was particularly beneficial in adverse driving conditions, for example, in rain and snow and the advert was therefore not in breach of the Code. The ASA therefore considered that consumers would not expect the vehicle’s standard specification to be one that was optimised primarily for those conditions, or that modifying the vehicle, for example by fitting winter tyres, would not enhance the driving performance in some conditions.

This ruling serves as a reminder that the ASA will always review an advert carefully in its context and that words that might otherwise be considered problematic (such as “ whatever the conditions”) will be interpreted in that broader context, provided that context is sufficiently clear.

FOOD AND DRINK

4. Arla Foods Ltd – 7 June 2017

A local press advert for Arla organic farm milk included text which stated “Good for the land” and smaller text underneath which stated “helping support a more sustainable future.”

Complaint / Decision

The complainant challenged that the advert on the basis that the claim “Good for the land ... helping to support a more sustainable future” was misleading.

In response, the advertiser stated that one of the key principles of organic farming was good treatment of the land and that sustainability was at the heart of organic farming, which included the both the use of renewable and the protection of non-renewable resources. The advertiser provided the Soil Association’s organic standards document in support of the claim and stated that the impact on the environment was considered in every step of the production process.

In upholding the challenge, the ASA stated that consumers would understand the claim to mean that production had an overall positive impact on the environment, taking into account its full life cycle. Even though the advertiser had provided evidence regarding the organic farming methods used and that they believed this was more sustainable than non-organic farming, this did not substantiate the claim the ASA found was being made, which the ASA therefore concluded that the claim was misleading.

This somewhat tough ruling attracted a fair amount of publicity, but demonstrates the need for care, particularly with claims involving the environment. When “green” or environmentally friendly claims are made, it is important to remember that the ASA always looks for substantiation to cover the full life cycle of any product.

5. Global Brands Ltd t/a VK – 14 June 2017

An advert on social media featured an image of a group of young people dancing during a typical club scene. The image showed several people with their heads tilted back, drinking from bottles of VK. At the top of the image, text stated “drinkaware.co.uk for the facts”. The caption of the post stated “Here’s a #TipTuesday for ya… VK is always better with your squad” followed by two “stickout tongue” emojis.

Complaint / Decision

The complainant challenged whether the advert was socially responsible on the basis that it promoted unwise drinking styles. The ASA further challenged whether the advert was in breach of the Code as it featured people drinking alcohol who appeared to be under 25 years of age.

In relation to the first challenge, the advertiser relied on the fact that the majority of the bottles in the picture were over half full. On the question of age, the advertiser explained that the image was taken in an ID controlled nightclub that was only accessible to over 18-year-olds and provided evidence showing that the advert was only targeted at over 18-year-olds.

The ASA upheld both complaints. In relation to the first advert, the ASA was concerned with the fact that the six people in the image were drinking from bottles with their heads tilted far back, which was associated with the culture of “downing” drinks, particularly in relation to group drinking behaviour. It was noted that although most had half of their drink left, some were holding empty bottles and therefore members of the group were at different stages of “downing” the drink.

In addressing its own challenge, the ASA considered that several people appeared under 25 and as they played a significant role, the advert was in breach of the Code.

The adjudication highlights the importance of conveying sensible attitudes towards drinking in all adverts. This is often a particular issue with adverts in social media. Advertisers must take care to ensure that these adverts follow the strict rules as much as general above the line advertising.

FINANCIAL SERVICES

6. Santander UK plc – 10 May 2017

The adjudication concerned a TV advert featuring a compilation of short viral video clips, including a voice-over stating: “Life is full of transactions. Sometimes you’re in credit, sometimes things are a bit tight. And some statements we received don’t always get put in a drawer. And the things you invest in, the assets you have, can’t always be counted or cashed in. Prosperity isn’t always measured with a decimal point or a figure on the screen. Prosperity is finding what you want in life …” One of the clips featured showed a man flipping a piece of marshmallow from a frying pan into the air and the marshmallow being caught in his mouth by another man sitting across the kitchen. Another clip featured one person sitting on another person's shoulder, who was walking towards the edge of a cliff, looking out towards a canyon.

Four complainants challenged the advert on the basis that the two clips referred to above were irresponsible and encouraged dangerous or unsafe practices.

Complaint / Decision

In response, the advertiser stated that the advert was intended to reflect findings from research carried out to find out what prosperity meant to people, sourcing user generated content to show individuals experiencing their own moments of prosperity. They said some clips in the advert showed meaningful moments with family, funny moments, enjoyable moments in everyday life, as well as moments of personal achievement and adventure.

In relation to the first clip, Clearcast stated that, while they acknowledged the marshmallow scene was not ‘best practice’ or the safest way to consume marshmallows, they believed that the majority of the adult population would understand the risk involved and that the greatest risk would be if children attempted to emulate it. For this reason, they gave the versions of the advert that included this clip an ex-kids timing restriction.

Clearcast stated they had considered that the depiction in the second clip was slightly dangerous, but they pointed out that the couple were not at a critical distance to the edge. While they acknowledged that this could be dangerous if emulated, again they felt that keeping the advert away from children’s programming would remove the greatest risk of emulation.

The ASA noted that the marshmallow clip coincided with the voice-over “Sometimes you are in credit …” and was shown amongst other clips, including a football team passing a football in a dressing room using only their heads, which then successfully landed in a bin, and a woman taking a ‘selfie’ and being surprised by Formula One driver Jenson Button. As such, it was considered that these clips were clearly highlighting small, enjoyable moments that represented visual metaphors.

Turning to the second clip, the ASA noted that it was shown amongst other clips which depicted, for example, mountaineers climbing a snowy summit, athlete Jessica Ennis-Hill surrounded by puppies, and a child’s reaction to being surprised with football tickets and that viewers were likely to understand that those clips illustrated special or meaningful moments in life.

In reaching its decision not to uphold the complaints, the ASA took into account the fact that the advert had an ex-kids restriction, and that the collection of the video montages did not glamorise the acts portrayed, nor depict them in a way that was likely to encourage viewers to be daring or reckless and disregard their own safety.

The ASA considered that whilst there were inherent risks in the acts captured in both clips viewers would also be aware of the risks if they emulated those acts. As such, the challenges were not upheld.

There is always a risk in adverts which show potentially dangerous acts that might run the risk of emulation, even where, as in this case, a degree of humour is involved. The ASA can take a strong stance in this situation. However, the risk of emulation is particularly strong where children might see the adverts. Here that risk was addressed by including an ex-kids restriction.

However, Santander did have another complaint upheld in relation to a TV advert for its All in One credit card, on the basis that the representative APR (Annual Percentage Rate) was not given adequate prominence as required.

HEALTH & BEAUTY

7. Protein World Ltd – 10 May 2017

A poster on London Underground and a digital outdoor advert both featured Khloe Kardashian in a swimsuit with text that stated “Can You Keep Up with a KARDASHIAN?”. Text further stated “Take the protein world 30 Day Challenge”.

Complaint / Decision

The advert received 14 complaints on the basis that the adverts promoted an unhealthy and competitive approach to dieting.

In this case, the advertiser had submitted the advert to CAP Copy Advice in advance and they were advised that the advert was unlikely to be in breach of the Code. Furthermore, Exterion Media’s Copy Approval team reviewed the advert and also submitted it to CAP prior to display.

First, the ASA considered that whilst the advert was promoting Khloe Kardashian’s body as desirable, she was not out of proportion or unhealthily thin.

In considering whether the advert promoted a competitive approach to dieting, it was understood that the phrase “Can you keep up with a Kardashian” was a reference to the popular TV series “Keeping up with the Kardashian’s”. The ASA did not consider that the terms “Can you keep up with…” and “challenge” to encourage excessive weight loss or other extreme dieting behaviour. As such, the ASA concluded that the adverts were not socially irresponsible and therefore not in breach of the Code.

Of course, having CAP Copy Advice in advance will not mean that a complaint will not be upheld, and only provides a degree of comfort. Body image has now been a significant image for the ASA in complaints and rulings. A string of recent ASA adjudications have demonstrated the importance of using models that are in proportion and appear healthy. Weight can be a particularly sensitive issue to navigate in advertisements, an obvious example being the advertiser’s previous London Underground campaign questioning consumers’ ‘beach body’ readiness. Though humour and fun is difficult to gauge in advertising, in this case the ASA understood the challenge to keep up with a Kardashian to be double-entendre, referencing the TV series “Keeping up with the Kardashians”, and was not taken earnestly. More light-hearted than their infamous slogan of ‘are you beach body ready’ (where the complaint was also not upheld), it was clear that the advert was not a campaign for women and girls to begin an unhealthy and drastic weight-loss programme in order to achieve Khloe Kardashian’s figure.

As we have seen in the advertiser’s high profile adjudication in July 2015, the simple fact of negative media coverage and a large number of complaints will not necessarily mean that an advert is considered likely to cause serious or widespread offence. Advertiser should always consider the impact of that publicity which, in certain circumstances, albeit probably not in this case, may in itself be damaging to the brand.

GAMBLING

8. Bear Group Ltd t/a Daily Star Wins – 10 May 2017

A TV advert featured various scenes including showing men standing at a bar watching a woman walking past, pulling out a mobile phone to swipe the screen, then in a casino showing women in sequined dresses dancing on a stage to the men as they walked down the stairs and being referenced in connection with female croupiers. There were scenes involving the women wearing tight, low-cut dresses and showing women in somewhat provocative poses Finally, the men were shown approaching a roulette table where a female croupier stood, along with a group of mainly female gamblers. One of the men flipped a chip onto the table while staring intently at the croupier. The voice-over continued, “You’ll be surprised where it can take you. Star Wins. Get in the game” as the men were shown throwing chips into the air in celebration, surrounded by the group of women, although the ad ended with a shot of the men back at the pub, on their own.

Complaint / Decision

A complainant challenged whether the advert was offensive on the basis that it was sexist and objectified women and a second complainant challenged whether the advert suggested that gambling could enhance personal qualities and linked gambling to seduction, sexual success or enhanced attractiveness.

The advertiser relied on the images being in style with a typical casino and that there was no direct interaction between the men and women. They also drew the ASA’s attention to the fact that the advert ended with the two players back at the pub on their own, so there was therefore no suggestion that they achieved any sexual success or enhanced attractiveness.

Addressing both complaints, Clearcast stated that although there were exchanges of glimpses and smiles between the men and the female dancer and croupier, they were brief and did not place too much emphasis on the women. They further stated the advert had clearly established that the casino was a fantastical setting.

In relation to the first complaint, the ASA considered that the advert focused both on the high proportion of women in the casino and the physical attractiveness of the female casino employees to the two men. This, combined with the voice over telling the consumer that the advertiser hired “real” female croupiers meant that the unique selling point of the gambling service that the advertiser was trying to convey was the presence of physically attractive women. Therefore, the ASA considered that the advert objectified women and was likely to cause serious or widespread offence.

The ASA also upheld the second complaint. The ASA highlighted the fact that when the men were initially in the pub the only person to acknowledge them was the barman, whereas in the casino they exchanged flirtatious looks with female casino employees. This was compounded by the fact that a group of people, predominantly women, gathered around the men when they were gambling and the group grew as they began winning. The ASA therefore considered that by gambling the men had gained recognition and admiration, making them more attractive to women.

This ruling serves a reminder to advertisers that they need to take particular care with showing interactions between men and women when advertising sensitive products or services such as gambling and alcohol. Similar to alcohol adverts, the ASA will be quick to uphold complaints of gambling adverts that have a link to sexual success. Advertisers should ensure that any advert that features gambling does not show the gambling as having a positive impact on the social or sexual success of the protagonist.

9. Ladbrokes Betting & Gaming Ltd – 17 May 2017

An email for a free spin promotion featured an image of Iron Man with the text “IRON MAN 3 … Enjoy this exclusive Ladbrokes welcome offer with Iron Man 3”.

Complaint / Decision

In this ruling, the ASA, somewhat unusually, reversed its previous decision (published on 24 August 2016) against Ladbrokes. The original complaint was in relation to Ladbrokes’ use of Iron Man in their promotion as it was believed to be of particular appeal to children and therefore irresponsible. The ASA ruled against Ladbrokes, deciding that, as the ad content was highly likely to have a particular appeal to those under 18 years of age, it therefore breached the CAP code.

Ladbrokes challenged this decision and the ASA has now reversed its previous decision. The ASA noted that the advert was only sent to registered customers by email and those who had been validated as being over 18 years of age. It was decided that in this instance, Ladbrokes had targeted the email to ensure it was extremely unlikely that the advert would be seen by anyone below the age of 18. Therefore, although the advert was likely to have particular appeal to children and young persons, it was concluded that, as the ad would not actually be seen by them, it was not irresponsible. The ASA distinguished this from other media that is not necessarily directed at children but to which they can nevertheless still be exposed – if such media had been used it is clear that the ruling would have been upheld. This ruling provides a useful demonstration that even if the content of the advert would appeal to children and young people, careful targeting can ensure that an advert or promotion will not be in breach of the Code.

OTHER

10. FxPro UK Ltd – 17 May 2017

A TV advert on the Bloomberg channel for FxPro, an online broker providing contracts for difference (CFD) began with a scene that featured a young adult who woke up and immediately reached for a tablet device. The image on the tablet showed a falling Euro:GBP currency rate. The voice-over stated, “What can I say, I am a risk seeker. For me, trading is about being in the moment.” The advert then showed the actor arriving at what appeared to be a college setting where he checked the currency status. The image on the device indicated that the exchange rate had risen. The voice-over stated, “Surfing that wave for as long as it holds. And when the price changes direction, I go back in and profit on the way down. Some say it’s too risky. For me, it’s a thrill. Fortune favours the brave, right?” The advert then featured the actor who showed the currency rate to several other students.

On-screen text throughout the advert stated “FxPro Trade Forex Like a Pro … Risk Warning: Trading CFDs involves significant risk of loss”. An additional risk warning was displayed at the end of the advert which stated “CFDs are complex financial products that are traded on margin. Trading CFDs carries a high level of risk since leverage can work both to your advantage and disadvantage. CFDs may not be suitable for all investors because you may lose all your invested capital. You should not risk more that you are prepared to lose. Before deciding to trade, you need to ensure that you understand the risks involved taking into account your investment objectives and level of experience. Past performance of CFDs is not a reliable indicator of future results”.

Complaint / Decision

The complainant challenged whether the advert was irresponsible on the basis that it encouraged young adults to trade complex, high-risk financial products throughout the day.

Responding on behalf of both parties, Bloomberg Media relied on the fact that their disclaimers clearly highlighted the risks involved with CFD trading and that Bloomberg TV is an established, specialist financial channel and the advert was therefore targeted at a specialist audience.

The ASA upheld the complaint. Notwithstanding the acknowledgement that due to the specialised nature of the channel, some viewers would have a high degree of knowledge regarding CFDs and would understand the risks associated with the product, the ASA was concerned that as the advert showed a young adult, regularly checking the status of his investments and then showing his friends at college, the advert would appeal to a younger, student audience who were likely to be inexperienced in trading CFDs.

The ASA considered that statements in the voice-over such as “What can I say, I am a risk seeker”, “I go back in and profit on the way down” and “Some say it’s too risky. For me, it’s a thrill. Fortune favours the brave, right?” created a strong impression that any risks that might be associated with investing were heavily outweighed by the potential benefits, including the thrill of investing. This impression was not sufficiently qualified by the small disclaimer and the ASA highlighted that the lengthy disclaimer was only on screen briefly at the end and could not be ready in its entirety before the end the advert.

Where there is a risk of significant financial loss in a service, such as gambling or use of trading platforms, advertisers should ensure that they do not place too much emphasis on the potential benefits and should provide prominent and comprehensive disclaimers that are easy to read. Advertisers should refrain from glamourising financial risk taking, especially in adverts that feature a demographic that is unlikely well versed in the subject matter. Furthermore, this ruling provides a reminder to advertisers that they will not be able to rely on an advert being targeted at a specific portion of society purely on the basis that the advert has been broadcast on a specialist channel.

11. National Geographic Society t/a www.ourmathematicalworld.co.uk – 24 May 2017

The adjudication concerned two adverts:

a) A newspaper advert for a publication, Our Mathematical World, stated “Discover how mathematics is all around us! … Discover all this and more with this remarkable collection … Issue 1 Only £1.99”. The advert included an image that featured a row of several of Our Mathematical World’s books.

b) The advertiser’s website stated: “Issue 1 comes at the special price of £1.99” alongside the link “SEE OFFER”. When the “SEE OFFER” link was clicked, the advert stated “ADVANTAGES OF BEING A SUBSCRIBER … Issue 2 only £5.99”. The advert also included the link “Download brochure” which stated on its last page “ISSUE 2 ONLY £5.99 … Regular price £8.99”.

Complaint / Decision

The complainant challenged whether both adverts advert were misleading on the basis that they did not state the cost of subsequent issues and the complainant further challenged whether the newspaper advert was misleading on the basis that did not make clear the number of issues in the collection.

The ASA upheld both parts of the complaints. In relation to the first challenge, it was noted that the use of “collection” and “Issue 1 Only £1.99” would signal to the consumer that there were a number of products in the set, and that the first issue was at a promotional price. It was further considered that a consumer’s decision to buy Issue 1 and subsequent issues would be influenced by their understanding of the costs involved in completing the full set of books. As the cost and number of issues was material information necessary for consumers to make an informed decision in relation to the product, this should have been included in the advert.

Turning to the second part of the challenge, on the website wording, it was noted that the “SEE OFFER” link directed consumers further down the web page to additional information under the heading “ADVANTAGES OF BEING A SUBSCRIBER”, and this heading was likely to be understood to mean that subscribers may be able to take advantage of preferential pricing, amongst other benefits. However, the ASA noted that the website advert included no further information, for example as to the price for future issues or for non-subscribers.

The ASA noted that there was a link on the website to the advertiser’s brochure that included information on the price of Issue 2 and to the “regular price” of £8.99, which the ASA considered would be understood as being the price for subsequent issues. The brochure did not refer to subscription prices. The ASA took this to mean that subscribers would not be offered preferential pricing compared to non-subscribers.

Although the brochure did make the price of Issue 2 and subsequent issues clear, the ASA considered that this information should have been included on the website advert, without the need to download the brochure. The ASA was also concerned that the Issue 2 pricing of £5.99 was not “an advantage of being a subscriber” as it appeared to be pricing available to both subscribers and non-subscribers.

This ruling serves as a reminder to advertisers of the importance of real clarity with any pricing issues and that the basis for any promotional prices is made clear on the face of the advert, so that consumers are able to make an informed decision. Many rulings refer to discounted furniture deals, but this ruling shows the application to subscription publications.

12. World Trade Consortium Etna – 31 May 2017

The adjudication concerned two 27-minute long-form TV adverts called "the IT Factor" which promoted Italian goods and culture abroad:

a. The first advert showed what appeared to be a seven-second sponsorship credit, featuring an image of the Etna World Trade Logo in the corner of the advert, followed by a 60-second opening title sequence which featured the title "the IT Factor", and included on-screen text stating "Advertisement feature" for the first six seconds. The advert featured a number of different segments about various different Italian-based beauty-related products. The segments included interviews with members of the public, a beauty and make-up expert, a store manager and an Italian manufacturer. After approximately every 80 seconds, the on-screen text "Advertisement feature" appeared for around five seconds. During the middle of the advert, the sponsorship credits re-appeared, followed by the London Live logo and music. There then followed a traditional ad-break including a number of traditional short third-party adverts and a promotion for a London Live TV programme, before the sponsorship credits again. After 27 minutes, the ad ended with closing credits.

b. The second advert, followed the same structure and format as the first advert with a focus on footwear, including an opening title sequence, closing credits, a traditional ad-break in the middle of the advert and what appeared to be sponsorship credits at the beginning and on-screen text which stated “advertisement feature” approximately every 80 seconds.

The EPG (electronic programme guide) listing for both adverts stated "Skilled artisanship with exceptional cultural heritage, IT Factor showcases Italian influence on London from fashion to cutting-edge technology, the aroma of our coffee & icons of design. Ad feature".

Complaint / Decision

The complainant challenged whether the adverts were obviously distinguishable from editorial content on the basis that the adverts had been formatted like a TV programme with an opening title sequence, closing credits and traditional ad-breaks in the middle.

In upholding the challenge, the ASA considered that consumers habitually associate a number features of the advert with editorial content, including the length of the adverts at about 30 minutes each, the fact that a number of products were featured, the format involving interviews, and the format with more conventional advertising breaks.

In addressing the various attempts of the advertiser to signal that the advert was not editorial content, the ASA considered that the text “advertisement feature” was displayed with a faint white colour and could not easily be seen by consumers and given that viewers would likely start watching at different points during the 30-minute adverts, the intermittent appearance of the on-screen text was not sufficient to ensure that it was obvious to viewers who tuned in at different times. Furthermore, the gaps between when the on-screen text appeared could have caused viewers to think that “ad feature” referred to a form of product placement or short ad within editorial programming.

In relation to the EPG listing, the ASA considered that many viewers would only view the title of the EPG listing and not the accompanying text, and so would not see the qualification "ad feature". Other viewers, such as those who were already watching the previous programme on London Live, and those whose TV sets did not automatically generate the EPG listing when changing channel, might not have viewed the EPG listing at all.

This ruling addresses an area of increasing focus – the distinction between paid for and pure editorial content, and the need to make clear, whatever format an advertiser may be using, that content constitutes paid-for advertising (or sponsored content) as distinct from pure editorial.