This summary provides a selection of the most interesting ASA adjudications in September, highlighting the key issues considered in those adjudications. This month the ASA presented two interesting adjudications in relation to adverts containing price comparison claims involving well-known retailers ASDA, Argos and Specsavers. Advertisers are reminded of the strict rules surrounding price comparisons. Further guidance is also available in the BIS Pricing Practices Guide, which can be found on the BIS website here.
Other adjudications this month include adverts containing claims that a product is available at “from x” price, when it transpired that the product was not in fact available at that price. Evidence that a similar product was available at a lower price than the one advertised was not sufficient to satisfy the ASA (see adjudications on Sixt Kenning Ltd and Prestons of Bolton).
A number of food and drink adjudications were also presented this month.
ADJUDICATIONS
FOOD & DRINK
1. McDonald’s Restaurants Ltd, 12 September 2012 (A ruling on whether a fizzy fruit drink could constitute “1 of your 5-a-day”)
2. ABF Grain Products Ltd t/a Allied Bakeries, 19 September 2012 (The ASA investigates various claims in relation to wholemeal bread)
3. Heineken UK Ltd, 19 September 2012 (The ASA considers whether an advert for an alcohol product was irresponsible and encouraged alcohol consumption)
4. Alpro (UK) Ltd, 26 September 2012 (An advert for almond milk is challenged as misleading for containing only 2% almond)
5. Beverage Services Ltd, 26 September 2012 (An adjudication on whether an advert for Fanta encouraged excessive consumption and poor nutritional habits among children)
6. Organic Trade Board, 26 September 2012 (Claims relating to the amount of pesticides used in organic farming are investigated)
HEALTH & BEAUTY
7. Candy Harbour Ltd, 12 September 2012 (A magazine advert for a hair dye is challenged as misleading for implying the product was organic)
8. Transform Medical Group (CS) Ltd, 19 September 2012 (A TV advert for cosmetic surgery is investigated after being broadcast during a programmed appealing to children)
9. Prescriptions Logistics Ltd, 26 September 2012 (The ASA determines that a price comparison was misleading where there was a cheaper and more comparable product than the one featured on the website)
MOTORING
10. General Motors UK Ltd t/a Vauxhall, 5 September 2012 (A car advert is challenged as encouraging dangerous and irresponsible driving)
11. Sixt Kenning Ltd, 26 September 2012 (An internet banner advertising a car for hire at a certain price is found to be misleading)
RETAIL
12. ASDA Stores Ltd, 5 September 2012 (An interesting adjudication on price comparison claims made in a TV advert)
13. The-Sleeping-Giant, 5 September 2012 (The ASA investigates an advert for a product illegal to purchase in Wales)
14. Prestons of Bolton, 12 September 2012 (An advert for diamond rings is held to be misleading as the rings were not available at the price quoted)
OTHER
15. Universal Pictures International UK & Eire Ltd, 5 September 2012 (An advert for a film featuring a children’s toy holding a beer bottle is investigated)
16. Magpas, 12 September 2012 (The ASA considers various claims made in relation to the availability of an air ambulance service)
17. Bauer Consumer Media Ltd t/a More! Magazine, 19 September 2012 (A promotion for two similar competitions running simultaneously with different terms and conditions is held to be misleading)
18. British Wind, 19 September 2012 (A number of claims featured in a promotion for wind energy are investigated for being misleading)
FOOD & DRINK
1. McDonald’s Restaurants Ltd, 12 September 2012
A banner for McDonald’s Fruitizz, shown on the Mumsnet website, contained five slides which stated: “Pop the bubbles”; “Fruitizz A bubbly way to 1 of your child’s 5-a-day”; “Fruit juice water and bubbles”; “That’s what makes Fruitizz. Get the Fruitizz facts. 1 of your 5-a-day based on approximately 150ml fruit juice per 250ml serving” and “That’s what makes Fruitizz. Get the Fruitizz facts. Made with fruit juice concentrates.”
A TV advert showed children playing with bubbles shaped like fruits. The voice-over stated “Grape, apple, and raspberry juice with refreshing sparkling water. Fruitizz is full of fruity bubbles with no added sugar, artificial colours or flavours. And, it’s one of your child’s five a day”. On-screen text stated “1 of your 5-a-day based on approximately 150ml fruit juice per 250ml serving. Made with fruit concentrates. Contains naturally occurring sugars only. Subject to availability.”
Complaint / Decision
Two complainants challenged whether the claims that Fruitizz was “1 of your 5-a-day” were misleading and could be substantiated.
The complaint was not upheld. The ASA referred to the Department of Health guidance, which stated that 150ml of 100% fruit juice concentrate could count as one of the recommended five a day. Adding 100 ml of water, natural flavourings and preservatives did not negate this, provided the entire 250ml was consumed. As this was clearly stated in the advert, the claims had been substantiated and the adverts were not misleading.
2. ABF Grain Products Ltd t/a Allied Bakeries, 19 September 2012
A poster for Allinson’s wholemeal batch loaf was titled “Thomas Allinson, Rebel, Maverick, Baker”. Additional text read “The Wholemeal Pioneer – Thomas Allinson as a true visionary. A man who fervently believed that ‘Brown bread is not a luxury, but a necessity to every family’. So, with typical Victorian zeal, he bought his own flour mill to create the pure whole grain flour at the heart of an Allinson loaf.” Under the heading “Allinson Today” was further text stating, “Happily, Thomas succeeded in his crusade to bring wholemeal to the whole nation and, while much has changed since those days, the bread still contains whole grain, still has no artificial preservatives and is still the mainstay of a nutritious diet. But, just as importantly, his spirit for healthy eating lives on in everything we make”. An image of bread dough being kneaded by hand and a sack of flour were shown on the poster.
The second advert was found on the Allinson’s website. A page marked “Range” was headed “A taste of tradition today”. It featured four Allinson products: Wholemeal Batch Loaf, Sunflower & Pumpkin Batch loaf, Brown Batch with the taste of sourdough and six brown snack rolls. Clicking on the product would take you to the product’s information page. Another page headed “How it all began” contained the following text: “Today we take the benefits of wholemeal pretty much for granted. But back in the Victorian era it was a different story. One man who bucked the trend and energetically championed the healthy eating cause was Thomas Allinson. So much so, in fact, that in 1892 he bought his first mill to create the pure whole grain flour at the heart of the Allinson loaf”. Another page on the site was headed “Mr Thomas Allinson – The Wholemeal Revolutionary”.
Complaint / Decision
The Real Bread Campaign challenged whether (i) showing bread being kneaded by hand on the poster misleadingly implied that Allinson’s bread was made by hand; (ii) use of the word “wholemeal” was misleading, as they believed not all of the flour used to make Allinson’s bread was wholemeal; and (iii) the claim “the bread … still has no artificial preservatives” featured on the poster was misleading.
The complaints were not upheld. In relation to the first complaint, the ASA took into account the Victorian style of the advert and the other images used, and concluded that consumers would understand the advert to be making reference to the history of the company. The modern Allinson loaf was also shown at the bottom of the poster. The ASA did not believe that the average consumer would interpret the advert as meaning that Allinson loaves were made by hand today, and the advert was therefore not misleading on this point.
Secondly, the flours used in the bread were wheat flour and malted barley flour, which were 100% wholemeal. The ASA therefore did not consider the use of the word “wholemeal” to be misleading. The use of oat bran, wheat protein and soya flour was not taken into consideration as these are not flours as determined under the Bread and Flour Regulations 1998.
The final complaint was based on the claimant’s understanding that the bread contained additives. However, the ASA considered that consumers would distinguish between claims that a product was free from artificial additives and claims it was free from artificial preservatives. As the bread did not contain any artificial preservatives, the claim was not misleading. The complainant had also challenged the use of the word “still”, as it implied that Allinson’s bread had never contained preservatives. However, the ASA stated that the average consumer would understand the comparison as between the original Allinson loaf and the current one. As the original loaf did not contain any artificial preservatives, the claim was not misleading.
3. Heineken UK Ltd, 19 September 2012
An advert featured on television and YouTube started with a voice-over which stated “Introducing Bulmers Number 17 … to launch it, we’re rewarding experimental people.” Footage then showed a man stopping people in the street and inviting them to a concert featuring his friend’s band. Some accepted and others declined. The advert then moved to a bar, where the same man was seen with attendees of the concert. He announced “Ladies and gentlemen, please welcome my friend’s band, Plan B!” and the audience cheered. Plan B (in fact a real and fairly well-known artist) then walked to the stage and placed a glass of the advertised cider down on an amplifier before beginning his performance. Shots of the crowd showed the audience smiling, dancing and holding glasses of the cider aloft.
Complaint / Decision
It was challenged whether (i) the adverts implied that Plan B’s confidence had been increased and his performance improved by the consumption of alcohol; (ii) the adverts were irresponsible, because they were likely to appeal strongly to people under 18; and (iii) the adverts implied that the success of a social occasion depended on the presence or consumption of alcohol. Complaints (ii) and (iii) were brought by the ASA.
The complaints were not upheld. The ASA did not consider that anything in the advert implied that Plan B had been lacking in confidence before he consumed alcohol, or that it had improved his performance. The image portrayed by Plan B was a mature one, and his record label had advised that his audience was mainly 24-34 year old males. The advert was therefore unlikely to particularly appeal to people under 18. Finally, the ASA noted that the audience were excited and in high spirits, but this was related to the surprise and pleasure of realising they were going to watch a well-known artist rather than an unknown band, as had been implied by the man who invited them. The ASA considered that it was this surprise that was the key to the success of the occasion, and not the fact that alcohol had been consumed. In addition, little consumption of the product was shown. The advert had therefore not breached the Code.
4. Alpro (UK) Ltd, 26 September 2012
An advert on YouTube featured a voice-over stating: “Curiosity is in our nature. Discover the delicious taste of new Alpro almond milk. Eat well, feel uplifted, enjoy plant power with Alpro.” A scene showed milky liquid pouring from an almond on a tree.
A poster for a dairy milk alternative depicted a milky liquid pouring from a broken almond onto a bowl of cereal. Text stated “How do you milk an almond? Feed your curiosity … enjoy plant power”.
Complaint / Decision
Two complaints were received by the ASA. One challenged whether the YouTube advert was misleading, because the product only contained 2% almond. The other challenged whether the poster was misleading, on the same grounds.
Both complaints were not upheld. The ASA noted that although the almond content in almond milk varied, the percentage of almonds was usually relatively low. The ASA considered that consumers were likely to be aware that almonds could not be “milked”, and that therefore almond milk must be formed by combining almonds with a suitable amount of liquid to produce a “milky” consistency. As these products are commonly referred to as “almond milk”, and the addition of almond adds to the product’s flavour and consistency, the ASA determined that the adverts did not mislead by using imagery of almonds and milky liquids. The adverts were therefore not in breach of the Code.
5. Beverage Services Ltd, 26 September 2012
A video advert on www.fanta.co.uk contained the following text: “Fun, New 2011 Fanta ‘Bounce’ Commercial. Check out the Video for More Fanta. Less serious. New 2011 Fanta commercial where thanks to Fanta orange a DJ boy flips and bounces a bored girl, a hip chick, a nerdy guy, a cheerleader, 2 dudes, some dogs and a whole basketball pickup game all over town … all because of an orange Fanta! What happens when his Fanta is gone!? Hmmm.” The advert featured animated characters. A female character was lying on her bed, looking bored, when a male character jumped through the door and gave her a bottle of Fanta. They both drank some and then started bouncing up and down on the bed. Other characters were also shown drinking Fanta and bouncing around. When the bottles were empty the music slowed down and the people stopped bouncing and looked unhappy. The male character from the first scene returned and they all started to bounce around again. On-screen text stated: “MORE FANTA. LESS SERIOUS.”
Complaint / Decision
The Children’s Food Campaign (Sustain) challenged whether the advert (i) condoned or encouraged excessive consumption of Fanta; (ii) condoned or encouraged poor nutritional habits among children; and (iii) suggested that by consuming Fanta, children would be more confident and popular.
The three complaints were not upheld. Beverage Services submitted that the target audience for Fanta was 16 to 34 year olds, and they did not target their marketing at children under 12 years of age. They said the vibrant colours on the website were consistent with the brand. The ASA reiterated that under the CAP Code, children are those under 16 years of age. The ASA took into account Beverage Services’ submissions, but considered that the advert would nevertheless appeal to those under 16. Factors that contributed to this decision included the colourful theme of the website and the free downloadable content for computers and mobile phones, including screensavers, a ringtone and a game. However, in spite of this, the ASA did not consider that the advert encouraged excessive consumption of Fanta or poor nutritional habits in children. All of the characters in the advert were being physically active, no character was seen drinking more than two mouthfuls of Fanta, some were sharing a bottle and some had none at all.
With regard to the third complaint, the ASA noted that the mood of the bored-looking girl at the beginning of the advert did improve once the male character arrived, but determined that viewers, including children, would interpret this to be because her friend had arrived and she was having fun, rather than because she was drinking Fanta. Those characters in the advert who were not shown drinking Fanta were also having fun and interacting confidently with others. The advert therefore did not suggest that by drinking Fanta children would be more confident and popular, and the advert was not in breach of the Code.
6. Organic Trade Board, 26 September 2012
A poster advertising organic food showed two apples with a speech bubble next to each. The first speech bubble stated “I’m telling you babes, I’ve got to have my treatments.” The other read “Not my style hun, I’m organic.” Text below the image read “They may look the same, but one way to reduce your exposure to pesticides is to eat more organic food.”
Complaint / Decision
One complainant challenged whether the claim “one way to reduce your exposure to pesticides is to eat more organic food” was (i) misleading and could be substantiated, because they understood that organic crops were heavily treated with pesticides; and (ii) was denigrating to non-organic crop production.
The complaints were not upheld. The ASA acknowledged that the use of pesticides in organic farming was limited at a European level, and that pesticides could only be used in certain circumstances. The Organic Trade Board (OTB) submitted evidence that referred to findings of the Defra Expert Committee on Pesticide Residues in Food, and its predecessor the Pesticides Residues Committee. The ASA noted that the reports published by these bodies consistently demonstrated a much lower incidence of detectable levels of pesticide residue in organic foods, compared to non-organic foods. The ASA consulted the Food Standards Agency, who informed them that exceeding the Maximum Residue Level of pesticides occurred less frequently in foods labelled as organic. Similar data was contained in the latest report by the European Food Safety Authority.
The OTB had also consulted with the CAP Copy Advice team before using this claim in their marketing, and had been informed that the claim was likely to be acceptable. The ASA concluded that the OTB had sufficiently demonstrated that pesticides were used less frequently in organic farming and were less commonly found in organic foods compared to food produced by other methods. The claim was therefore not misleading.
In relation to the second complaint, the ASA noted that the claim did not directly reference other methods of food production, but rather sought to present organic food in a positive light. The ASA considered that it was not unreasonable for an advertiser to want to promote their product in this way. As the statement could be substantiated (for the reasons given above), and the claim did not actively disparage non-organic farming, the ASA determined that the claim was not denigrating to non-organic crop production, and the complaint was not upheld.
HEALTH & BEAUTY
7. Candy Harbour Ltd, 12 September 2012
An advert for hair dye published in an organic lifestyle magazine included the following text: “PHILIP MARTIN’S Italian Organic Lifestyle ORGANIC BASED COLOUR get it in your head our choice IS TO BE PURE no comprise natural products of biological derivation PASSION for NATURE beauty and wellness lifestyle health awareness no petrochemicals no formaldehyde no nickel.”
Complaint / Decision
One complainant challenged whether (i) the references to “Organic” misleadingly implied that the products were organic; (ii) the claim “no petrochemicals” was misleading because they believed the product contained PTDs; and (iii) the claims “no formaldehyde” and “no nickel” were misleading because they implied that competitors’ products often contained these products, which was in fact not the case.
The complaints were upheld. Candy Harbour submitted that the references to “Organic” were to reflect the philosophy of the Philip Martin’s company and were used across the company’s corporate materials. However, the ASA held that although it may have been intended as a more general philosophy, within the context of the advert the phrases would be understood to mean that the products were entirely organic and “met an independently defined organic standard”. As there was no such UK standard for hair colouring, the claim was not substantiated and the advert was misleading. Candy Harbour failed to provide information to show that the products did not contain PTDS, and the advert was therefore misleading on these grounds as well. Finally, the ASA considered that the claims “no formaldehyde” and “no nickel” would be understood by hairdressers as a comparative claim, thereby implying that these ingredients were commonly found in hair dye products used within the industry. As Candy Harbour failed to produce evidence to prove that this was the case, the ASA concluded that the advert was misleading.
8. Transform Medical Group (CS) Ltd, 19 September 2012
A TV advert for cosmetic surgery showed three people holding a sign indicating the treatment they had undertaken, and a second sign showing the difference people had noticed in them. The signs contained statements such as, “I’ve just had my breasts done … but the biggest change you’ll see is on my face”; “I’ve just had liposuction on my chest … But everyone comments on my smile” and “I’ve just had my tummy tucked … But all my friends notice the spring in my step.”
Complaint / Decision
Three complainants complained that the advert was scheduled irresponsibly at a time when it might be seen by children because they believed it could have an impact on young people’s body image.
The complaint was upheld. The ASA took into account the fact that the people featured in the advert were smiling, did not look underweight and were adults and not children. For these reasons the ASA held that the advert would not impact negatively on young people’s body image. However, the ASA had audience index figures for a programme which aired around 4:30pm and featured the advert in its ad break, which showed that the programme was particularly appealing to children under 16. Although Clearcast asserted that a cosmetic surgery clinic did not fall under their interpretation of a slimming product, the ASA noted that the weight control and slimming definition used by the BCAP Code did include “clinics and other establishments”. The ASA therefore determined that, as some of the procedures in the advert resulted in a slimmer appearance, the advert did fall under the definition in the Code. The advert was therefore inappropriately scheduled, and in breach of the Code.
9. Prescriptions Logistics Ltd, 26 September 2012
The website daysoftcontactlenses.com stated, “£4.99 per Box of 32 lenses +25p/box delivery there are no additional charges Save up to £228* per year *Ref 1-day Acuvue from Specsavers Online”. The “ORDER NOW” section stated, “daysoft replaces other brands for half the price”. It also contained a search box where visitors could search for daysoft products that matched their own contact lenses.
An e-mail for a contact lens manufacturer stated, “The UK Government applies VAT Relief (LVCR) on certain products shipped into the UK from the Channel Islands thereby encouraging products such as Daysoft’s contact lenses and those of many of our competitors to be supplied from there. Regrettably it now appears likely that the UK Government will abolish their Channel Islands VAT exemption policy from 1st April. In effect, Daysoft contact lenses would then have to carry a VAT charge of 20%, £1 per Box of lenses, increasing the price per Box to £5.99 for deliveries to UK customers from 1st April 2012. A 32 Box of Daysoft at £5.99 will still represent very good value. For example, Specsavers current online prices for a 30 Box of Acuvue Moist is £14.75 and for a 30 Box of CIBA Aqua Comfort Plus is £14.50”.
Complaint / Decision
Specsavers Optical Group Ltd (“Specsavers”) challenged whether (i) the claim referring to Specsavers’ current online prices was misleading and could be substantiated, because Specsavers offered a cheaper and more suitable comparison product than the product that was being compared; (ii) the claim “Save up to £228* per year *Ref 1-day Acuvue from Specsavers Online was a misleading and unfair comparison, because Specsavers offered a cheaper and more comparable product; and (iii) the search function on the website was misleading because the website showed a swap result of Daysoft Silk, and Specsavers believed Daysoft Silk was not the most suitable product for many of the prescriptions listed.
The complaints were upheld. In relation to the first two complaints, the ASA considered that the price comparisons would be understood to mean it was the cheapest similar products that were being compared. Because Specsavers offered a cheaper and more comparable product than those products mentioned in the adverts, the adverts were misleading and breached the Code.
Regarding the third complaint, the ASA determined that consumers would interpret the search chart as providing a suitable alternative lens to those currently worn by the consumer. The ASA was concerned that one of the suitable replacements offered in the chart was to replace a certain type of lens, which could be worn for up to seven days/six nights, with a lens that was not suitable for extended wear. For this reason, the search chart was likely to mislead and breached the Code.
MOTORING
10. General Motors UK Ltd t/a Vauxhall, 5 September 2012
A TV advert for a Vauxhall Corsa showed various vehicles being driven through the empty streets of a city. The passengers of the cars were holding flares out of the car window to create a smoke trail. The colour of the smoke corresponded to the colour of the car, and made various patterns. A voice-over states, “Vauxhall Corsa. Put the fun back in to driving.”
Complaint / Decision
Seven complainants challenged whether (i) the advert encourage dangerous and irresponsible driving; and (ii) the advert was harmful because the drivers were young adults engaging in dangerous behaviour which could encourage emulation.
The complaints were not upheld. The ASA held that the claim “Put the fun back into driving” would be understood to relate to the colours in which the car was available, as there was a clear link between the colour of the smoke and the colour of the car, rather than as a reference to the manner of driving or the act of holding a flare out of a care window. Accordingly, the claim was unlikely to be interpreted as encouraging dangerous and irresponsible driving. The ASA also considered that most viewers would interpret the passengers holding flares out of car windows in as a way of creating coloured smoke to emphasise colours in which the car was available, rather than an isolated action to be emulated. The advert was therefore not in breach of the Code.
11. Sixt Kenning Ltd, 26 September 2012
An internet banner advertising “Sixt rent a car” stated “Vauxhall Corsa 3dr from £15.57 RENT NOW.”
Complaint / Decision
One complainant challenged whether the advert was misleading, because when she enquired about the quoted price, she was told by the advertiser that the car was not in fact available to hire for £15.57.
The complaint was upheld. It transpired that the price shown in the advert was valid only for one pick up location – if one were to click on the advert and search for a different pick up location, or a longer or shorter hire period than one week, or for a rental commencing in less than two weeks, then the “from” price shown in the advert would not be accurate. There was no text on the advert listing these conditions, and consumers would therefore not be aware of the terms of the price quoted. Because consumers were not aware of the conditions and would not necessarily be able to hire a car at the stated price, the ASA determined that the advert was misleading.
RETAIL
12. ASDA Stores Ltd, 5 September 2012
A TV advert for ASDA stated, “Last Thursday, an independent price checker confirmed that ASDA had this many branded products cheaper than Argos …” Two gift-wrapped boxes appeared, the tag on the larger one read “ASDA 551 Cheaper”; the tag on the smaller one read “Argos 139 Cheaper”. Smaller on-screen text stated, “Independently price checked by skuudle”. The voice-over stated, “…Including all these great electronics brands,” and the larger box unwrapped, revealing the logos of various electronic brands. On-screen text stated, “Selected lines, Subject to availability. Exclusions apply. Prices checked 20/10. Includes promotions, For verification ASDA LS11 5AD. Full T&C’s [website].” The advert ended showing a woman with a shopping trolley in an ASDA store, next to text stating “ASDA SAVING YOU MONEY EVERY DAY.”
Complaint / Decision
Argos Ltd challenged whether:
(i) the general comparison of branded products was unfair and misleading, because they believed that Argos and ASDA offered many more identical branded products than featured in the advert, and that more than 139 of these products were cheaper in Argos;
(ii) the specific reference to the comparison of electronic brands was unfair and misleading, because the advert did not include information about the number of electronic products included in the comparison and how many were cheaper at each retailer, and they believed that more of those products were cheaper in Argos;
(iii) the comparisons were unfair and misleading, because they believed that the dynamic environment in which both retailers operated meant the price data was only accurate for around 24 hours.
Complaints (i) and (ii) were upheld, complaint (iii) was not upheld.
Argos had collated price data which showed that the two retailers offered 1191 identical branded products, of which ASDA was cheaper on 846 and Argos cheaper on 336. The ASA acknowledged that there were differences in the ways in which Argos and Skuudle (the independent price checker) had made their comparisons, and concluded that their assessment of the advert must be based on whether the approach taken in collating and comparing the data, the way this approach was communicated to consumers, and the nature of the claims themselves were fair and not misleading, rather than examining whether or not one set of data was “correct”.
The ASA considered that consumers would interpret a general price comparison to include all branded products available at both stores at the time the data was collated, unless there were qualifications to the contrary included in the advert. The ASA acknowledged the on-screen text which stated, “Selected lines. Subject to availability. Exclusions apply”, and directed viewers to where they could find more information. However, the ASA was concerned that not all significant conditions of the comparison were included in the advert, for example, the fact that the comparison was made only between products on sale in the retailers’ online stores.
The terms and conditions on ASDA’s website stated that a price comparison was still made where products sold by both retailers were identical except for colour. However, Skuudle’s process document stated that this approach was not taken for products that were classified as large appliances or toys, as often a premium was added for a particular colour. The ASA noted that this was not included in the terms and conditions on the website, and considered the failure to inform consumers of this qualification to be a breach of the Code. The ASA considered that other products in other categories may also have a premium applied to certain colours, or that a product in one colour at one retailer may have had a premium applied to it at another retailer because of its colour. The approach taken in making the comparisons was unfair and misleading in this regard.
Other conditions in the comparison, such as excluding products where free delivery was included at one retailer but not at another, were held by the ASA to be fair. However, the failure to make these qualifications clear to the consumers in the advert or on the website was a breach of the Code.
Because there were significant limitations and qualifications on which the price comparison was based that were not included in the advert or the website terms and conditions, the ASA concluded that the advert breached the Code.
The second complaint was also upheld. The ASA considered that consumers would not interpret the advert as a general claim that ASDA was cheaper on more branded electronic products than Argos, or that some of the branded products featured were cheaper at ASDA, but rather that ASDA was cheaper than Argos on all products of the electronic brands featured in the advert. In this context, the ASA concluded that it was not unfair or misleading to omit specific information on how many products were included in the comparison, or how many were cheaper in ASDA, as the understanding of the claim was that all products of all of those brands were cheaper at ASDA. The ASA therefore required substantiation from ASDA that they were indeed cheaper than Argos on all of these products. As the evidence supplied could not substantiate this, the claim was misleading.
The final complaint was not upheld. ASDA stated that their pricing information was updated approximately every 24 hours, and therefore the prices on the advert could well have changed by the time the advert was broadcast. However, the ASA took into account that the advert contained the date on which the price comparison had been made, and the advert would not have been broadcast for more than a few days. The advert was not unfair or misleading in this regard.
13. The-Sleeping-Giant, 5 September 2012
An electric shock dog collar from The-Sleeping-Giant featured on an e-commerce website included the text, “ANTI BARK STOP BARKING ELECTRIC SHOCK DOG TRAINING COLLAR…”
Complaint / Decision
One complainant challenged whether the advert was misleading and incited consumers to break the law because it did not make clear that the product was illegal to use in Wales.
The complaint was upheld. Although customers in Wales were not specifically targeted by the adverts, it was possible for them to purchase the product from the website. The ASA disagreed with The-Sleeping-Giant’s submission that it was for the customer to ascertain whether or not a product was legal to purchase within their own country. The ASA considered that customers in Wales may not have known that the product was illegal to use in Wales, and therefore this should have been made clear in the advert. Because it failed to do so, the advert was misleading and could unwittingly incite customers in Wales to break the law.
14. Prestons of Bolton, 12 September 2012
A TV advert for a diamond wedding and engagement rings retailer showed various diamond rings with on-screen text stating, “Diamond rings from only £795”.
Complaint / Decision
The complainant challenged whether the claim was misleading, because they did not believe that any of the rings shown in the advert were available for £795.
The complaint was upheld. Prestons submitted an email stating that they stocked a diamond ring in the same style as one of the rings in the advert, retailing at £775. However, the ASA stated that this did not constitute objective evidence that related to the availability of the featured diamond rings at the advertised price. The ASA considered that viewers would reasonably expect at least one of the diamond rings shown in the advert to be available at the price quoted. Due to a lack of objective evidence, the claim had not been substantiated and was misleading.
OTHER
15. Universal Pictures International UK & Eire Ltd, 5 September 2012
A website advert showed an adult male and a large teddy bear standing in front of urinals, with their backs to the viewer. The teddy bear had a glass bottle of beer in one hand. Accompanying text read: “the first motion picture from the creator of family guy … ted In Cinemas August 1, 2012”.
Complaint / Decision
One complainant challenged whether the advert was irresponsible, because associating a children’s toy with alcohol was likely to appeal to children.
The complaint was not upheld. The ASA considered that the advert was unlikely to appeal to people under 18 in such a way as to encourage them to drink alcohol, even if they were aware of alcohol and recognised the bottle to be a beer bottle. The overall content of the advert was unlikely to encourage teenagers to drink. The advert did not breach the Code.
16. Magpas, 12 September 2012
Banner adverts for a charity providing ambulance services contained the following claims: “SAVING LIVES DAY & NIGHT”; “Your Day Time Air Ambulance”; “SAVING LIVES NIGHT & DAY”; “Your Night Time Air Ambulance”.
Text on the website www.magpas.org.uk stated: “Magpas Helimedix – Saving lives … Anyone, anywhere, anytime!” and “By helicopter we can get to virtually anywhere in the East of England within 30 minutes!”
Complaint / Decision
The complainant challenged whether (i) the references to “your air ambulance service” on the banners were misleading because the areas in which Magpas operated was limited and for some of the places in which the banners were displayed, Magpas was not the primary air ambulance service; (ii) the claim “Saving lives … Anyone, anywhere, anytime!”, was misleading because Magpas only operated at certain times and was subject to the availability of the police helicopter; and (ii) the claim “By helicopter we can get to virtually anywhere in the East of England within 30 minutes!” was misleading and could be substantiated.
All three complaints were upheld. The ASA considered that “your air ambulance” was likely to be interpreted to mean that the service was readily available in the locations in which the banners appeared. However, the ASA was concerned that Magpas could not deploy a helicopter between 01:00 and 07:00 due to Civilian Aviation Authority restrictions, even though Magpas submitted that they had two dedicated rapid response vehicles and one land Ambulance available to them to operate during these hours. Due to the limited availability of the air ambulance, the ASA concluded that the references to “your air ambulance” were likely to mislead, and the advert therefore breached the Code.
On the second complaint, the ASA did not consider that Magpas had submitted sufficient evidence to demonstrate that Magpas had attended incidents in the locations shown on the map at the time of the advert. The ASA also referred to the limited availability of the air ambulance as mentioned above. The claim was misleading and in breach of the Code.
Finally, in relation to the third complaint, Magpas provided their own data of flight times for deployments and stated that as flight times were within or close to 30 minutes they believed that claim to be substantiated. However, the ASA considered that on the basis of the claim, consumers would expect that a member of the Magpas team could be with patients within 30 minutes of them making a call, and the data of flight times for deployments was not sufficient to evidence this. The claim had therefore not been substantiated and was misleading.
17. Bauer Consumer Media Ltd t/a More! Magazine, 19 September 2012
A competition advertised on www.moremagazine.co.uk was headed “WIN! Snow White and The Huntsman premiere tickets”. Text stated, “…one lucky winner and a mate will get the chance to see all three stars on the big screen at the world premiere of the film in London’s Leicester Square! The red-carpet event takes place on May 14. You’ll get return travel paid for and you’ll be put up in the 5-star MayFair Hotel. Amaze!”
Complaint / Decision
One complainant challenged whether (i) the promotion was misleading because she was told she had won a different competition with fewer prizes, which she did not believe she had entered; and (ii) the promotion had been properly administered, because the name of the winner of the first competition was not made available to the complainant on request.
Both complaints were upheld. It transpired that More! Magazine had been running two competitions for tickets to the premiere – one which had featured online and in their magazine, and one online only. The latter did not include any travel or accommodation, just the premiere tickets. The ASA acknowledged that there were two similar competitions running simultaneously with different terms and conditions, however, the complainant had thought she was entering the first competition, with all three prizes, when in fact she had entered the second one. As both competitions were online at the same time and accessible from the same page of the website, the ASA determined that More! Magazine should have highlighted to consumers that these were two distinct competitions. The ASA was not satisfied that it would have been sufficiently clear to consumers which competition they were entering, and More! Magazine failed to submit sufficient evidence to show that the complainant had entered the second competition. The promotion was therefore misleading and in breach of the Code.
In relation to the second complaint, failure to publish or make available on request the name and county of the prizewinner was a breach of the Code, which meant the promotion had not been properly administered.
18. British Wind, 19 September 2012
Three adverts promoting wind energy were featured in a magazine.
(i) The first advert showed the blades of a wind turbine superimposed onto a Union Flag. Text read: “Britain’s inexhaustible wind energy supplies will be vital as we become increasingly dependent on foreign gas – 70% of gas will be imported by 2020. Gas prices have trebled in the last decade and have driven up electricity bills, Wind is secure, clean and can keep bills down in the face of rising gas prices. Don’t let Britain lose Power” and “BRITISH WIND Powering Homes and Businesses”.
(ii) The second featured a newspaper headline stating: “Gas prices hit six year high”. Text below read: “THE COST OF THE WIND WILL NEVER GO UP”, and the text from the first advert was also included.
(iii) The third advert showed a drawing of a gas pipeline with a Union Flag at one end, and something turning it off at the other end. Text read: “WIND POWER WILL GIVE CONTROL BACK TO BRITAIN”; “And it enjoys more public support than investment in gas”, and the text from the first advert was also included.
Complaint / Decision
The complaints challenged whether the following claims were misleading:
(i) “70% of gas will be imported by 2020”;
(ii) “Gas prices have trebled in the last decade”;
(iii) “Wind is secure”;
(iv) “Wind … can keep bills down in the face of rising gas prices”;
(v) “THE COST OF THE WIND WILL NEVER GO UP”; and
(vi) The claim “And it enjoys more public support than investment in gas” was challenged as to whether it could be substantiated.
Complaints (i) and (iv) were upheld; the remainder were not upheld.
(i) The ASA considered that the claim by British Wind implied that there was a high level of certainty in the 70% figure. After reviewing the data on which the claim was based, which explicitly acknowledged the uncertainty of the predictions, the ASA did not agree was the case. The claim was held to be misleading.
(ii) British Wind provided evidence from the Department of Energy and Climate Changes that the wholesale price of gas paid by major power producers in the UK had trebled over the last ten years. In light of this evidence, the ASA concluded that that the claim had been substantiated.
(iii) The ASA considered that this claim would be understood to refer to insulation from outside risks such as pipeline disputes and political instability, rather than a claim that there would always be sufficient wind to generate power. British wind provided evidence showing that foreign natural gas supplies could be vulnerable to such risks of instability, and the claim was therefore not misleading.
(iv) The ASA considered that this claim would be interpreted to mean that if wholesale natural gas prices were to rise, using wind power to generate electricity would result in lower bills compared to if less or no wind power were used. The evidence submitted by British Wind did not focus sufficiently on the UK energy market or future scenarios relating to gas prices to substantiate this claim. The ASA acknowledged that the evidence suggested that a significant rise in gas prices could make the cost of wind generated power more competitive, but it failed to show that if gas prices rose, use of wind energy would actually keep bills down. The claim was considered misleading.
(v) This claim was featured under a newspaper headline which stated “Gas prices hit six year high”. The ASA considered that, viewed in this context, readers would understand that the purpose of the claim was to contrast the unlimited nature of wind with natural gas as a traded commodity. The ASA determined that consumers would be aware that both gas and wind power would be subject to other costs, and it was therefore not necessary to include information about subsidies and other costs. The claim was therefore not misleading.
(vi) This claim was substantiated by a 2011 poll in which consumers were asked which energy source they would like the UK to invest the most in for its future electricity needs. Out of 2,050 participants, 20% chose wind power, while only 4% chose natural gas. Other poll results also supported the claim, The ASA concluded that the claim was not misleading.
