This article provides a selection of the most interesting ASA adjudications from November and a summary of the key issues considered in the adjudications.
The ASA’s November adjudications investigated adverts accused of causing offence and making ‘joint-best’ comparative claims, and gave its verdict on the meaning of the financial services industry’s term “dark green” in the context of advertising green claims.
In addition, this month BCAP updated its TV and Radio Codes to reflect the requirements of the Consumer Protection from Unfair Trading Regulations (CPRs). The CPRs, which were introduced in May, prohibit unfair trading practices, including misleading and aggressive marketing behaviour. CAP had revised its non-broadcast code to reflect the CPRs in June. See the CAP website for the updated Codes in full.
Green claims were also in the news this month after DEFRA launched its new carbon footprint standard (Publicly Available Specification 2050) with the Carbon Trust and BSI at the end of October. The standard instructs producers on a standard means of calculating a product’s carbon footprint. For more information on PAS 2050, see the BSI website.
ALCOHOL
1. Coors Brewers Ltd, 19 November 2008 (use of medium popular with children )
3. InBev UK Ltd 26 November 2008 (historical claims challenged)
FOOD AND DRINK
4. Muller Dairy (UK) Ltd, 19 November 2008 (“healthy” claims)
COMPARATIVE ADVERTISING
5. Continental Tyre Group Ltd, 12 November 2008 (substantiation and joint-best claims)
6. Qantas Airways Ltd, 19 November 2008 (superlative claims)
7. Apple (UK) Ltd, 26 November 2008 (meaning of “really fast”)
PROMOTIONS
8. easyCar (UK) Ltd, 5 November 2008 (“free” claims)
9. Virgin Wines Online Ltd, 12 November 2008 (statement of significant conditions)
OTHER
10. News Group Newspapers Ltd t/a The Sun, 26 November 2008 (offensive language)
ALCOHOL
1. Coors Brewers Ltd, 19 November 2008
A free online games website, Mousebreaker.com, contained an advert for a football game. The ad consisted of a screen-shot from the game and a link headlined “CLICK TO PLAY” directed users to the Carling website, where the game was located.
Complaint/decision
One complainant said Mousebreaker.com was used by children and the ad encouraged them to visit the Carling website. The ASA challenged whether the ad failed to make clear it was a marketing communication.
The ASA upheld both complaints. First, although it thought the advert was not aimed at children, it found the fact it appeared on Mousebreaker effectively directed the ad at under-18s. A 2007 Mousebreaker survey had found that 29.7% of users were under 16, and Carling failed to provide evidence to counter this assertion.
Secondly, the screenshot on Mousebreaker was analogous to a sponsored link because Coors paid for it and it directed people to a Carling branded game. It was not enough for Coors to say they did not have creative control of the screen-shot. This was a marketing communication and should have been marked as such.
The 2007 Mousebreaker survey will, on its own, have made it difficult for the ASA to reach any different conclusion.
2. Asia Pacific Breweries Ltd t/a Tiger Beer UK Ltd, 26 November 2008
An advert which appeared on posters and in the Metro and London Lite newspapers showed a large picture of a boy appearing as a woman, wearing stockings, underwear and a sheer blouse putting something into his mouth and a small picture of a bottle of Tiger Beer. The bottle was labelled: “THE FAR EAST’S MOST DESIRABLE EXPORT SINCE 1932” and the boy was labelled:“3rd”.
Complaint/decision
Eight people complained the picture was offensive for linking ‘exports’ with a person in a sexually provocative pose, because of concerns about human sex trafficking.
Three people also complained it was offensive and disrespectful to Eastern culture for implying beer and sex were some of the best things to come out of the region.
The ASA ruled the ad was likely to cause serious or widespread offence, particularly as the posters would be seen by an untargeted audience. It suggested beer and sex were two of the Far East’s best exports and was disrespectful to Eastern culture.
This shows how the medium will be considered by the ASA in judging how offensive ads are and the importance of careful targeting for ads that may be at risk.
3. InBev UK Ltd 26 November 2008
A TV advert for Stella Artois began with a voiceover and images about 1366. The voiceover said: “When the citizens of Leuven set out to create the perfect beer, they risked all to gather the ingredients,” alongside images of these citizens gathering the relevant ingredients. On-screen text stated: “The finest hops, the purest water, maize and malted barley”. The voiceover said: “today the beer contains only the same four precious ingredients”.
Complaint/decision
A very large number of viewers, 94, complained that the ad was misleading because maize had not been used as a brewing ingredient since 1366. Some also complained that the ad implied that Stella Artois had been brewed in its current form since that time.
The ASA rejected both complaints. It did not find the ad misleading, as it used fantastical elements and imagery to give a fictional feel and had a light-hearted feel. It did not think viewers would interpret the on-screen text as a literal claim about the ingredients of the beer in 1366, or think it meant Stella Artois was made in exactly the same way as beer was in 1366.
This decision is a good example of the ASA’s policy that it will not necessarily find an advert in breach of its Codes simply because it has received a significant number of complaints.
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FOOD AND DRINK
4. Muller Dairy (UK) Ltd, 19 November 2008
A press advert showed a grey, metallic number 15 next to the words “Petits Filous”. The 15 ingredients of this product were listed in the outline of the number. Below this was a pink number 7 on some grass next to a tree. Seven ingredients were listed inside the number, representing Muller’s product. Further text read: “It’s simple, Muller® Little Stars® fromage frais has less than half the ingredients of Petits Filous fromage frais.” The names of the ingredients were presented in different colours and different sized type, and appeared at different angles.
A magazine ad showed a child licking a spoon and the text: “With just 6 natural ingredients you could make it yourself. We only use 100% natural ingredients, including wholemilk, which means Muller® Little Stars® fromage frais is ideal from weaning onwards and provides a natural source of dairy calcium…”
The TV ad showed a mother telling other mothers that Petits Filous fromage frais contained up to 15 ingredients whereas Muller’s products only used 7, “and none of those are E numbers.” Onscreen text read: “100% Natural Ingredients www.checkthelabels.co.uk”.
Complaint/decision
The press ad and TV ad made a misleading comparison because it implied that, because Muller’s product had fewer ingredients, it was healthier.
The ASA agreed because of the difference in the way the two numbers were depicted and because unfamiliar or unpopular ingredients were in relatively prominent type within the ‘15’. For example, words such as “Aronia”, which Yoplait thought readers might confuse with ‘Ammonia,’ and ‘sugar’ were relatively large or in white type.
1) The press ad denigrated Petits Filous because it suggested it was less healthy than it was and portrayed it negatively.
The ASA agreed because of the different depiction of the numbers and because ingredients were given different prominence in the two numbers (e.g. “sugar” was sideways and small in the Little Stars list, but large and the right way up in the Petits Filous list).
2) The press ad misleadingly compared the ingredients of the products because some of the Petits Filous ingredients were unduly emphasised despite making up a small proportion of the product, or being present in a similar amount in Muller’s product;
The complaint was upheld because the Petits Filous list emphasised ingredients consumers would see as undesirable. Reference was made again to the different categorisation of sugar in the two lists of ingredients.
3) The magazine ad was misleading because only the peach variety of Little Stars contained six ingredients and the others contained seven.
The ASA agreed the magazine ad was misleading because it contained a picture of a six-pack of Little Stars but did not make clear that only the peach variety contained six ingredients. It had not considered whether the “natural” claim was acceptable, as it had not been challenged (nor did the ASA seek to challenge it).
4) The TV ad contained a misleading comparison because it implied Little Stars were healthier because they had fewer ingredients.
The complaint was not upheld, because the comparison of numbers was a statement of fact presented in an unemotive style. The ASA felt viewers would be unlikely to conclude Little Stars were healthier.
5) The TV ad denigrated Petits Filous because it implied a large number of ingredients meant it was unhealthy.
This complaint was not upheld because the suggestion that parents check the labels of products did not go beyond a fair comparison.
Both Yoplait and a member of the public complained that the TV ad implied that E numbers were inherently harmful or unhealthy. This complaint was not upheld. The ASA said E numbers were additives that had been approved for use within the European Union, and could be natural or artificial. It explained: “We noted Muller’s argument that the ad merely stated the absence of E numbers in their product to facilitate informed choice.” Viewers would understand Muller was highlighting a perceived benefit of the product and would not infer E numbers should be avoided, the ASA said.
This last decision is surprising as the purpose of the ad overall would seem to be to advertise the healthiness of Muller’s products compared to its competitors. However, the decision has accepted that showing someone telling others that a product contained no E numbers did not imply E numbers were unhealthy. In the context of the other ads one might reasonably assume that this was the advertiser’s intention.
The ASA did not consider whether the magazine ad’s “natural” claim was acceptable, as nobody complained about this aspect. It is interesting that the ASA did not choose to take the opportunity to challenge this claim.
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COMPARATIVE ADVERTISING
5. Continental Tyre Group Ltd, 12 November 2008
A press ad for tyres stated “Stop with Continental tyres. Full stop.” Smaller text stated: “Nothing stops better than a Continental tyre”.
Complaint/decision
Michelin and Goodyear Dunlop challenged whether the claim “Nothing stops better than a Continental tyre” was misleading.
The ASA upheld the challenges. Readers were likely to interpret the claim as a ‘top-equal’ or ‘joint-best’ claim, meaning that Continental tyres were demonstrably as good as those of their main competitors, rather than an outright claim of superiority. Without any qualification, the ASA considered that the claim suggested that no competitor type of tyre performed better in braking performance than any Continental tyre model. Continental was not able to substantiate this specific claim despite providing other evidence of Continental tyres’ braking performance.
Comparative claims are of course always more likely to be challenged by the advertiser’s competitors which are identifiable in any ad. Therefore, the advertiser must be sure to have substantiating evidence in support of the claims readily available.
6. Qantas Airways Ltd, 19 November 2008
A TV ad and poster for Qantas Airways stated it was “the world’s most experienced airline”. The voiceover stated it was “the world’s most experienced airline, having flown continuously for over 87 years. That’s longer that any other airline…”
Complaint/decision
The claim to be the “most experienced airline” was challenged as the complainant believed experience should be measured in “flight hours”. The claim, “that’s longer than any other airline” was challenged on the basis that other airlines were founded before Qantas.
The ASA did not uphold these complaints.
Qantas had substantiation for its claim to have flown continuously: although two other airlines were set up before it, neither had flown continuously. They had not claimed to be the first airline founded. “Flight hours” was found to be irrelevant as it was usually a measure of pilots’ experience or aircraft age. The ad made it clear that the experience claim was based on years of flying continuously, so was not misleading. Qantas also provided evidence of the breadth and depth of experience which made it the “world’s most experienced airline”. Readers were likely to interpret this claim to mean Qantas had actively operated for a longer period of time than other airlines, and Qantas had already proven this.
This highlights the advantages of making claims as specific as possible and to ensure they reflect the actual substantiation.
7. Apple (UK) Ltd, 26 November 2008
A TV ad for the iPhone 3G showed the product being used to surf the internet, use Google maps, and download a file with waiting times of fractions of a second. The voiceover stated: “[3G] helps you get the news, really fast. Find your way, really fast. And download pretty much anything, really fast. The new iPhone 3G. The internet, you guessed it, really fast.” Text stated: “Network performance will vary by location.”
Complaint/decision
Seventeen viewers complained that the ad was misleading for exaggerating the iPhone 3G’s speed.
The ASA upheld the complaint. Despite Apple’s assertion that the ad was a comparison between older 2G and newer 3G technology, with the iPhone based on the latter, it said many viewers might not appreciate these technical differences. There was also no explicit reference to a comparison with 2G technology.
The repeated voiceover claim “really fast”, in conjunction with images of the product in use, meant that the onscreen disclaimer that “network performance will vary by location” did not prevent the ad being misleading.
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PROMOTIONS
8. easyCar (UK) Ltd, 5 November 2008
A press ad for easyCar had the headline “Free Car Hire @easyCar.com”. Further text below stated: “Book before 31st July and you could win your money back…” Small print added that every customer booking in July “will automatically be entered into a prize draw to get up to the first 7 days of their rental free of charge (up to the value of £250 or equivalent in local currency). The money will be refunded to the winner after the prize draw has taken place.”
Complaint/decision
The complainant believed the headline “Free Car Hire” was misleading because customers had to pay upfront and were entered into a prize draw to win their money back, and there was a cap on the potential refund of £250.
The ASA upheld the complaint. The small print which explained the terms of the prize draw was insufficiently prominent as it contradicted, rather than qualified, the headline claim. The headline claim was unconditional, but in reality only four customers received free car hire. Although the body text made it clear that easyCar were offering the chance of a refund and upfront payment was required, it also introduced the concept of a chance to win, which contradicted the headline claim.
EasyCar should have made it clear that the “free” offer was conditional by using the phrase, “you could win” in the headline claim.
This adjudication demonstrates the importance of making the terms of a promotion clear and that footnote text will not be sufficient to qualify a claim if it contradicts the headline claim.
9. Virgin Wines Online Ltd, 12 November 2008
Two leaflets for Virgin Wines were distributed with goods purchased from Amazon.co.uk and Lovefilm inviting readers to “claim your £40 WineBank voucher”. A code and password were provided for consumers to quote to redeem the voucher. Text in smaller print on the first leaflet stated: “Just as you expected, Terms & Conditions apply to this voucher, plus the usual ones listed at www.virginwines…” “You can’t exchange it for money…but using it gives you an account at our WineBank.” The second leaflet stated: “How to claim your £40 WineBank voucher…full terms and conditions are available at www.virginwines…”
Complaint/decision
The complainants challenged whether the leaflets were misleading because they did not clarify that:
1. It was necessary to become a member of the Virgin WineBank and pay a monthly subscription;
2. The offer to “pay £39.99 for £100 worth of wine” was only available to members of the Deluxe WineBank, otherwise the cost was £49.99;
3. The offer did not extend to pre-mixed cases; and
4. It was necessary to buy a 12-bottle case of wine with a minimum value of £79.99.
Complaints 1,3 and 4 were upheld. The leaflets did not make it clear that customers would have to make monthly deposits into an account with Virgin Wines after using the voucher. Significant conditions were attached to the redemption of the voucher, and this should have been clarified on the marketing material to avoid consumer disappointment. The reference to the terms and conditions available online was not sufficient. Complaint 2 was not upheld as Virgin Wines honoured the voucher offer of £39.99 to customers who expected to pay that price.
This is a useful reminder that any significant terms need to be clearly identified in the marketing material and that mere reference to a website where they can be found will not be enough.
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OTHER
10. News Group Newspapers Ltd t/a The Sun, 26 November 2008
The Sun paid for an advert on the side of a lorry which showed Britain’s 2008 Olympic results of 19 gold medals compared to Australia’s 14 and carried the phrase, “Where the bloody hell were you?”
Complaint/decision
The complainant saw the lorry parked on a motorway bridge and complained it used offensive language in a public place where children could see it.
The ASA upheld the complaint. “Bloody” was a swear word and it was irresponsible to use it in untargeted advertising which children might see. The Sun’s argument that the advert referenced an earlier ad by the Australian Tourist Board was not helpful, as the ASA had also upheld complaints about that ad’s use of the word where it could easily be seen by children.
This decision is a reminder to advertisers of the dangers of using controversial words, even in situations similar to those used by other advertisers in the past. At the very least, advertisers should be expected to check whether there had been an ASA adjudication against that ad - preferably before their own ad is made.
