Health Lottery criticised by ASA for misleading comparison with Lotto

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The UK's Advertising Standards Authority ("ASA") has ruled against Health Lottery ELM Ltd ("Health Lottery") for implying in its TV ad that it has more winners than Lotto (the National Lottery), without having empirical data to substantiate such a claim.

A viewer complained about the Health Lottery's ad which stated that "with over £100 million handed out in prize money, there are more winners too". The question put to the ASA was whether this statement would be understood by viewers to mean that there are more winners in the Health Lottery than there are in Lotto. A customer testimonial in the ad expressly referred to Lotto, saying that "Lotto became too expensive with too many balls in the machine".

The Health Lottery attempted to argue that the claim was a genuine reference to the increased frequency of prize draws in its lottery since its launch. Further, the Health Lottery suggested that viewers would draw a distinction between the customer testimonial that mentioned Lotto expressly and the one that does not and considered that this was supported by the two statements being separated in the ad by other footage and testimonials. Clearcast supported the Health Lottery's submissions and added that the reference to more winners could also be understood to refer to the fact that the proceeds from the Health Lottery benefit health charities, meaning that those charities and the people who benefit from those charities are winners too.

The ASA was not convinced by these arguments, ruling that the word "more" in the statement in question suggested that a comparison is being made and, in the context of the ad, viewers were likely to understand it to be a comparison with Lotto. The ASA concluded that, as the Health Lottery could not prove that it indeed had more winners than Lotto, the ad breached BCAP code provisions 3.1 (misleading advertising); 3.9 (substantiation) and 3.33 (comparisons with identifiable competitors).

The full report of the ASA's ruling can be found here.