ASA Adjudications Snapshot – September 2013

INTRODUCTION

This summary provides a selection of the most interesting ASA adjudications in September and highlights the key issues considered in those adjudications. Of interest this month is the use of Twitter by Wayne Rooney to promote Nike, which was reviewed to establish whether it was obviously identifiable as a marketing communication. In contrast with the ASA’s decision in January 2012 on Nike advertising via Twitter, the ASA did not uphold the complaint in this instance, but instead was satisfied that the content and format of the tweet made sufficiently clear that it was a Nike ad. This month the ASA also considered an ad run by Tesco as part of their “apology” campaign for contaminated burgers, finding a breach of the Code for misleadingly implying that the whole food industry had problems with contaminated meat. Interestingly, this ad was not found to denigrate the industry in contrast with last month’s Iceland Ltd adjudication, which was found to discredit an organisation.

ADJUDICATIONS

BUSINESS

1. Granit Transformations UK Ltd, 4 September 2013 (an ad for “granite” work tops which are 97% granite was found not to be misleading)

2. We Buy Any Car Ltd, 4 September 2013 (claims in an ad for a second hand car dealership that 86% of customers were happy with the price they received could not be substantiated)

3. The Trade Centre Wales Ltd, 18 September 2013 (an ad for car sales stipulating a “from” and “to” price range was found to breach the Code as there was insufficient availability of cars sold at the “from” price advertised)

CLOTHING

4. Nike (UK) Ltd, 4 September 2013 (Wayne Rooney’s tweet on behalf of a Nike campaign was considered obviously identifiable as a marketing communication)

COMPUTERS AND TELECOMS

5. Hutchinson 3G Ltd t/a 3, 4 September 2013 (a complaint where an ad offered a tablet device, but when a customer attempted to buy that device, he was offered a different product)

6. Greenstone Estates Ltd, 25 September 2013 (a Facebook competition was run unfairly without an independent judge)

FOOD AND DRINK

7. Hi Spirits Ltd, 4 September 2013 (an ad for fireball whisky was found to breach the Code because a person who appeared under 25 played a significant role and the ad contained an explicit reference)

8. Tesco Ltd, 4 September 2013 (an ad making up part of the Tesco “apology” campaign for selling burgers contaminated with horsemeat was found to mislead consumers into thinking that all food suppliers were to blame)

9. Paramount UK Partnership t/a Comedy Central, 4 September 2013 (alcohol ads shown before episodes of Friends were found to be inappropriately scheduled)

HOUSEHOLD

10. Procter & Gamble UK, 18 September 2013 (a comparison ad was found to be compliant with the Code as the features compared were material, relevant, verifiable and representative)

HOLIDAYS AND TRAVEL

11. Flybe Ltd, 4 September 2013 (a complaint relating to an ad for flights claiming that consumers only need pay “taxes and charges” was upheld as significant limitations to the offer were not clearly shown)

LEISURE

12. PUA Training Ltd, 4 September 2013 (an ad for a “free” DVD where the ASA enforced the CAP rule that products must not be marketed as “free” where postage and handling charges must be paid)

13. Zenimax Europe Ltd, 18 September 2013 (an ad on YouTube for a video game was found to be offensive and distressing despite being targeted at a certain audience)

14. ZULU Ventures Ltd t/a Sky Cig/Ten Motives Ltd/Sorse Distribution Ltd t/a 5 Colors/Zandera Ltd, 25 September 2013 (four ads for e-cigarettes prompted the ASA to clarify the restrictions placed by the BCAP Code on such ads)

RETAIL

15. JB Global Ltd t/a Oak Furniture Land, 4 September 2013 (a time limited sales offer breached the Code)

16. Damartex UK Ltd t/a Damart, 4 September 2013 and 11 September 2013 (two marketing communications posted to customers created the misleading impression that an official document was contained)

17. Dreams plc, 11 September 2013 (an ad for a bed and mattress sale with “FREE DELIVERY” was not misleading despite the company charging £20 for weekend delivery)

OTHER

18. SPUC Pro-Life Ltd, 4 September 2013 (ads campaigning against same sex marriages and claiming that they will be promoted in schools were found to be misleading)

BUSINESS

1. Granit Transformations UK Ltd, 4 September 2013

A TV ad for Granit Transformations featured a voice-over which stated “Granit Transformation...In about two shakes of a tail they installed granite that fit right over the old tops. They’re heat, scratch and stain resistant and maintenance free.”

Complaint/Decision

The complainant challenged that the ad misled consumers with its reference to “granite” as they understood the work tops were not solid granite.

The ASA acknowledged that the product shown in the ad was not solid granite but also noted that the ad did not claim the product to be 100% granite. Granit Transformations UK Ltd (GTUK) responded that the product was approximately 97% granite, a percentage which the ASA considered to be a very high proportion. The ASA concluded that it would be clear from the nature of the product, i.e. one that fits over existing work surfaces, and from the close up shots in the ad that the product was a granite mix. The ASA therefore did not uphold the complaint.

GTUK had said they were careful not to refer to their product in the ad as “solid” or a “slab” which they believed might mislead. This adjudication shows the ASA taking a rather more relaxed approach in circumstances where the advertisement, coupled with the advertiser’s name, might easily have been considered misleading.

2. We Buy Any Car Ltd, 4 September 2013

A radio ad for We Buy Any Car, a car buying service, included the claim “86% of people said they were well happy and got a really fair price with us”.

Complaint/Decision

A listener challenged whether the claim was misleading and could be substantiated.

The ASA upheld the claim. We Buy Any Car responded to the complaint stating that it had surveyed all customers who had sold vehicles to them. The ASA acknowledged that the ad had been amended to make clear that the claim only related to those who had been surveyed. The ASA noted that of those asked “How do you feel about the price that you got from webuyanycar.com for your car? Was it fair or unfair?” the proportion who said the price was fair amounted to 86% but a small number of participants had skipped the question altogether. The ASA considered that these participants should have been taken into account. Customers were also sent an e-mail and SMS survey, which included a question as to whether customers would recommend the company rather than to whether customers were happy with the price paid, which the ASA did not consider sufficient evidence that 86% of customers were “well happy”. The ASA concluded the overall impression of the ad was that customers were very satisfied with the price they had received, whereas the relevant survey questions asked only whether the price was “fair” or “unfair”. As such the ASA considered the claim misleading.

Advertisers must be sure that any substantiation held properly matches the claims that are being made.

3. The Trade Centre Wales Ltd, 18 September 2013

A radio ad for The Trade Centre Wales Ltd (TCW) stated “…all our cars are from £1,999 to £3,999…”

Complaint/Decision

The complainant challenged whether such a claim was misleading and could be substantiated because when he visited the branch he had found no cars available for £1,999 and many priced over £3,999.

The ASA noted that the price range was repeated several times in the ad. In order for the claim not to mislead consumers TCW would need to demonstrate that all cars at the outlet were priced within the stated range and that references to “£1,999” did not exaggerate the availability of cars at that price. TCW sometimes held additional vehicles priced at above £3,999, a proportion of which were discounted at the point of sale to below £3,999. The ASA considered the sale of cars above £3,999 relevant to whether the ad misled consumers as it considered that consumers who chose to visit the outlet after having heard the ad would expect the maximum price listed for any car to be £3,999. The ASA considered the claim misleading.

TCW needed to demonstrate a sufficient level of availability of cars at the lowest “from” price in order to ensure that the claim did not mislead. Being a business not selling new cars the ASA noted that consumers would understand the greater potential for variation in incoming stock levels. However, in the absence of any qualification in the ad, consumers would expect TCW always to offer a certain number of cars at £1,999. TCW provided invoices showing vehicles discounted to £1,999 upon purchase but the ASA considered that these were not relevant indications of the availability of cars at the “from” price. The stock list provided by TCW contained details of approximately 400 vehicles, seven of which were listed at £1,999. The ASA concluded that seven out of 400 cars was insufficient to meet the expectations of consumers and that therefore the ad was misleading.

As with Village Hotels & Leisure Ltd in the August Snapshot advertisers must be careful when advertising prices as “from” a particular price to ensure that there is sufficient availability at that lower price and to ensure compliance with the BIS Price Practice Rules. Availability of items at the price featured in promotions is regularly an issue which attracts complaints.

CLOTHING

4. Nike (UK) Ltd, 4 September 2013

A tweet by the footballer Wayne Rooney stated “The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball#myground pic.twitter.com/22jrPwdgC1”.

Complaint/Decision

The complainant, who saw the tweet when it was retweeted into their Twitter stream by someone they followed, challenged whether it was obviously identifiable as a marketing communication.

The ASA did not uphold the complaint as it considered the reference to Nike Football prominent enough and clearly linked the tweet with the Nike brand and its official Twitter address. Nike considered consumers would understand that a tweet by Wayne Rooney would only include the @NikeFootball address if the tweet was a marketing communication for Nike Football. They further emphasised that the wording of the tweet as a whole did not misleadingly imply that Wayne Rooney was tweeting as a consumer of Nike products rather than as a Nike-sponsored athlete and therefore the commercial intent was clear. Nike had designed the tweets in such a way that it was clear that they were marketing communications, whether viewed as a tweet directly from Wayne Rooney or viewed as a retweet. The tweet was one of a series of five tweets by Wayne Rooney over four days, as part of the Nike campaign for the FC247 football collection, all of which referenced the @NikeFootball address. Whilst the ASA was aware that not all Twitter users would be aware of Wayne Rooney’s sponsorship deal with Nike or the particular Nike Campaign which the tweet promoted, the wording of the initial statement, in combination with “@NikeFootball” and “#myground”, gave the overall impression that the tweet was obviously identifiable as a Nike marketing communication.

In January 2012 Wayne Rooney and Jack Wilshere tweeted for the Nike “make it count” campaign. Both tweets were adjudicated upon in June 2012 and the ASA upheld the complaints concluding that they were not obviously marketing communications. In this adjudication the ASA emphasised that the Code does not just require ads to be identifiable as marketing communications but that they must be obviously identifiable as such. Although the January 2012 tweets included a Nike URL which directed users to the Nike website and contained the campaign slogan “#makeitcount”, the ASA sought something more obvious to indicate a marketing communication and gave the example of “#ad”. Although Nike did not use “#ad” in this recent communication, the use of “@NikeFootball” serves the same purpose and demonstrates how advertisers can use social media to advertise whilst being CAP compliant.

COMPUTERS AND TELECOMS

5. Hutchinson 3G Ltd t/a 3, 4 September 2013

A website, store.three.co.uk, promoted a tablet device. Text below the description stated “Stock levels: We’re out of stock online. To buy this item please call us on: 0800 358 8460 or visit a 3Store.”

Complaint/Decision

The complainant called the number and was offered a different product and so challenged whether the claim was misleading.

Hutchinson 3G UK Ltd said that they did not consider the claims to be advertising or a sales promotion. They said that different stock was allocated to their website, telesales, high street and third-party 3 stores and stated that it was standard practice in a retail business, when one channel was out of stock, that customers should be advised to try another channel. The CAP Code clearly applies to ads and other marketing communications on a company’s own website, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts. The ASA noted that the product in question could be purchased directly from the web page and therefore considered it to be directly connected with the supply or transfer of goods and that the content therefore fell within the remit of the Code.

The ASA considered that the claim suggested the product was still available via those channels but understood that, when the complainant called the number, he was informed that the product was not available and was offered a more expensive alternative. Although the ASA acknowledged that there was no guarantee that the item was in stock via those alternatives, they also considered that other consumers would understand that the item was still available to buy by phone or in store. In light of this ambiguity they concluded that the claim was likely to mislead.

The term “marketing communication” will generally be widely interpreted particularly when relating to website offers or promotions. Advertisers cannot offer a consumer a different product when such a consumer contacts them in reaction to a marketing communication. Advertisers need to take considerable care in this respect since “bait and switch” advertising is one of the 31 commercial practices deemed unfair in all circumstances under the Consumer Protection from Unfair Trading Regulations 2008 (CPR). An advertiser will have breached the CPR by committing one of such 31 prohibited commercial practices whether or not the advertisement had any effect on the average consumer.

6. Greenstone Estates Ltd, 25 September 2013

A Facebook ad for a competition for a free iPad required participants to “like our FB page and this post to be in with a chance of winning”.

Complaint/Decision

Two complainants believed the competition had been unfairly administered.

Greenstone Estates Ltd had not used an independent judge when deciding the winners of the prize draw and there was documentary evidence to show that the first winner had failed to “like” the relevant page. For these reasons the ASA concluded that the ad had not dealt fairly and honourably with participants.

Advertisers should note that when running a competition an independent judge (or at least a panel including an independent judge) should be used to decide the winners, unless a verifiably random draw is made by computer.

FOOD AND DRINK

7. Hi Spirits Ltd, 4 September 2013

A brochure for Fireball Whisky featured polaroid style photographs showing four people standing in a nightclub, one of which held a sign that included the Fireball logo and read “THE HOTTER YOU ARE THE FASTER I COME”.

Complaint/Decision

The complainant challenged the ad because the person holding the sign appeared under 25 years old and the claim made, being sexually explicit, was offensive.

The CAP Code requires that people shown drinking alcohol or playing a significant role in a marketing communication must neither be, nor seem to be, under 25 years of age. Although the person holding the sign in the picture was not drinking, the ASA considered that he played a significant role in the ad. The ASA concluded that this person did appear to be under 25 and that the claim made in the sign would be understood by consumers as a sexually explicit reference. Not surprisingly, the ASA upheld both complaints concluding that the presentation of an under 25 year old in conjunction with such an explicit claim was likely to cause serious and widespread offence.

Hi Spirits also had an adjudication upheld against them in May and in July in relation to ads for Fireball Whisky on its Facebook page. Although none of these adjudications is surprising, they do demonstrate the strict approach adopted by the ASA to the association of young people and alcohol in ads and to such explicit claims which clearly go too far, even where there are attempts to target the ad.

As shown with the Sun Newspaper in August, care needs to be taken by advertisers with any sexual innuendo used. Advertisers run the risk of attracting adverse publicity by using such a controversial marketing communication.

8. Tesco Stores Ltd, 4 September 2013

A national press ad for Tesco stated “What burgers have taught us…The problem we’ve had with some of our meat lately is about more than burgers and Bolognese. Its about some of the ways we get meat to your dinner table. Its about the whole food industry”.

Complaint/Decision

Two complainants, one an independent butcher, challenged whether (i) the claim “Its about the whole food industry” was misleading as it implied there are issues with meat standards across the whole food industry and (ii) whether the ad unfairly denigrated food suppliers who had not been implicated in the supply of mislabelled meat products.

Despite acknowledging the words “we” and “our” elsewhere in the ad, the ASA considered that the omission of such words in the definitive statement “its about the whole food industry” emphasised this text and informed readers’ understanding of the rest of the ad. The ASA concluded that consumers would understand the ad to reference all food retailers and suppliers rather than Tesco alone. The ASA noted Tesco’s expert’s assertion that new legislation would cover the whole food industry and that the ad alluded to a problem which was not isolated to only one sector. Nevertheless, the ASA did not consider that this apportioned blame across all producers and retailers. The ad implied that all retailers and suppliers were likely to have sold contaminated products despite relatively few instances of contamination being found so far and in some instances investigations had not yet commenced. The ASA therefore concluded that the ad was misleading and upheld the complaint. Advertisers should note the ASA’s literal view of the ad wording here.

It is understood that the General Media Panel (GMP) that advises the ASA had argued that the first complaint against Tesco should not be upheld. The ASA disagreed and a spokesperson for the ASA reminded that the “ASA is the independent body responsible for administering the Ad Codes and adjudicating complaints and is not bound by GMP advice”.

The ASA noted Tesco’s assertion that the ad had not referenced other marketers and therefore could not be denigratory to the whole food industry. The ASA agreed with this assertion and considered that in an industry with numerous businesses, no one marketer or product could be identified. As a result the ASA did not uphold this second complaint.

This decision was based on the fact that another product or marketer was not named in the ad. Therefore, general assertions are unlikely to risk being denigratory but advertisers should be careful of making more specific statements, e.g. naming an organisation, as the ASA are not tolerant of claims which discredit an organisation, as shown in the Iceland Foods Ltd adjudication in the August Snapshot. These two adjudications, both regarding contaminated burgers in the food industry, illustrate that which the ASA does and does not consider denigratory.

9. Paramount UK Partnership t/a Comedy Central, 4 September 2013

Rule 32.2.1 of the BCAP Code states that alcohol ads should not be shown in or around programmes commissioned for, principally targeted at or likely to appeal particularly to audiences below 18. BCAP guidance recommends the use of audience indexing to determine the representation of children in relation to the audience as a whole and states that an alcohol restriction should be applied in programmes where the 10-15 year-old audience produces an index of 120 or more (20% over-represented in the programme audience).

Episodes of Friends were broadcast on Comedy Central (CC) between 4.30pm and 8.59pm. The audience index for alcohol ads in these programmes exceeded the 120 index in 38 episodes in Q4 2012 and 41 episodes in February, March, and April 2013.

Complaint/Decision

The ASA compliance team challenged whether it was appropriate to schedule alcohol ads around Friends between such times because the data indicated that it was a programme likely to appeal particularly to audiences below the age of 18 years.
The ASA was concerned that the BCAP guidance had not been followed: CC used a different index to that recommended by BCAP. CC applied a 4 to15 index, not a 10 to 15 index as recommended, which meant that 10-15 year olds made up a smaller proportion of the audience than they would have done had the BCAP index been used. This under represented the appeal of the programme to the age group. CC then used the results of this index as the basis for their decision to lift the alcohol restriction on Friends in February 2012. The ASA considered this decision flawed as it was based on the wrong index. Despite CC providing a response including detailed data and reviews the ASA took a strict approach to the use of the wrong index here.

CC then used a four week rolling average to determine an average series index. The ASA considered this a reasonable forecasting tool if the correct index is used. CC disregarded their four week index when it exceeded 120 (thereby overriding the alcohol restriction) based on the justification that their overall series index was less than 120. The ASA concluded that it is not reasonable to undermine the most recent data in this way when applying a series average.

Advertisers must take care to adhere to any Code and BCAP guidance. This adjudication shows the ASA’s no-nonsense approach to those advertisers who disregard such guidance particularly when the advertiser’s aim is to avoid a restriction, as in this case.

HOUSEHOLD

10. Procter & Gamble UK, 18 September 2013

Three issues were investigated, none of which was upheld by the ASA.

A TV ad, a magazine ad and a digital poster for Fairy washing-up liquid all stated that “Fairy lasts twice as long as the next best selling brand”. The ads displayed an image of a bottle of Fairy liquid and an equals sign, beside which two unbranded bottles of washing up liquid were shown.

Complaint/Decision

Robert McBride Ltd, which owns the licence to market Unilever’s Persil in the UK, challenged whether the claims that Fairy lasted twice as long were misleading and could be substantiated. It challenged whether the ads misled because they omitted material information, such as the concentration of the liquid and the size and price of the bottle, which helped consumers make an informed decision. The complainant also challenged whether the ads failed to take account of significant differences between the products and so failed to represent a fair comparison.

AC Nielson volume share data demonstrated that Persil was the next best-selling brand to Fairy. The ASA considered that consumers would interpret the ads to mean that a standard 433 ml bottle of Fairy lasted as long as two standard 500ml bottles of Persil when used in everyday conditions. The ASA sought expert advice on the robustness of the evidence provided. The expert considered the Build Up Suds (BUS) test method used by P&G to assess the suds’ mileage performance to be valid. As such, the ASA concluded that the claims were substantiated. Further, the ASA considered that consumers would understand the comparison to be between the longevity of the products. In comparing the mileage of the products, the ads objectively compared a material, relevant, verifiable and representative feature of those products, in which case the inclusion of other information was not material. The ASA did not uphold the complaints.

This adjudication shows that successful comparative advertisements can be carried out provided the comparison is made with regard to material, relevant, verifiable and representative features. In relevant cases where the ASA is unable to assess the evidence on its own it will instruct an expert to assess substantiation.

HOLIDAYS AND TRAVEL

11. Flybe Ltd, 4 September 2013

A website www.flybe.com featured a promotion “JUST PAY TAXES AND CHARGES ON RETURN FLIGHTS”. Smaller print stated that the customer must book by midnight 25 June and that the promotion only applied to flights between 22 July and 14 December 2013. A list of routes, including Southampton to Belfast, was shown.

Complaint/Decision

The complainant had been unable to obtain a fare-free return flight from Southampton to Belfast within the stated travel period.

The ASA noted that because there was no reference to indicate that the promotion was available on “selected” flights, the flash implied that every seat would be included in the promotion if booked by the stated end date and for travel within the specified travel period. The ASA did note that small print at the bottom of the web page stated that the promotion was “subject to availability” but decided that this was insufficient to counterbalance the rest of the promotion because of both its lack of prominence and its non-specific nature. Fare-free flights were only available on selected routes; this was explained on the second page of the site but not on the home page. Flybe Ltd sought to rely on the fact that 40% of flights on this route had promotional fares available and that just over 10% of the total seats on the route were included in the offer. Nevertheless, the ASA concluded that the fact that only some flights on some routes contained seats at the promotional price was material information and should have been made clear to consumers. As a result the ASA upheld the complaint, finding the ad to be misleading.

This adjudication shows that despite on the face of it showing compliance with the BIS Price Practice Guide, which states that general offer notices should not be used unless the maximum reduction quoted applies to at least 10% of the range of products on offer at the commencement date of the sale, the advertiser must still ensure that any significant limitations of the offer are included.

LEISURE

12. PUA Training Ltd, 4 September 2013

Claims on the website www.daygamedomination.com and in two emails promoted a set of DVDs aiming to teach men how to attract women. The website stated “I’m going to send you a copy of the program for free …we know the program will sell out…get your FREE COPY …I’m willing to send you these DVDs for FREE to check out for 30 days. Simply cover the $14.95 shipping and handling fee”. Text in the checkout area of the website stated “I understand that the program is mine FREE to try for a full 30 days, all I have to do is cover the shipping and handling. If I love the program, I simply do nothing, and I’ll be billed in 3 affordable monthly instalments of $97”. The emails stated “I’ve had over 1,500 questions/comments…another 32,650 (and counting) sign up for the DVD head start email notification list…ARE THERE REALLY ONLY 1,200 COPIES OR IS THAT JUST MARKETING HYPE? Yup 1,200 and that’s it…most likely in 12-24 months we will open things back up again, but as we always do, it will be at a higher price” and “Emails are flooding in…the early bird list is now up to 32,000…last time…we had over 10,000 people…before we went live”.

Complaint/Decision

The ad was challenged on several counts. Whether it was misleading because: (a) the total price of the product was not $14.95 but $305.95; (b) the ad claimed that the product was “free” to try when actually a $14.95 fee was payable, plus a further $291 if not returned; and (c) products returned to sale by the company at a later date were not always priced more highly than they had previously been.

The complainant further challenged whether undue pressure was placed on the recipient by: (a) stating the number of people on the early bird list; and (b) stating “last time 10,000 people were hammering the services before we went live”.

The ASA considered consumers would understand the amount of money they would be charged on submitting their form. Despite this it noted that the full cost of the product, if it was not returned, was material information likely to affect a consumer’s decision of whether or not to place an order. Therefore this information needed to be prominently stated in the ad in order to ensure a consumer could make an informed choice. Text both beside and below the order form referred to the length of the trial period, the shipping fee and that three instalments of $97 would be charged if the product was not returned. On this basis the ASA was satisfied that this claim was not misleading.

The ASA acknowledged that the website referred to the cost of the product several times, in which the word “free” was highlighted. Other parts of the website did qualify this claim with reference to the 30-day free trial period, however the ASA noted that $14.95 would still be charged as shipping. The CAP Code stipulates that items must not be described as “free” if the customer has to pay packing, handling or administration charges. The ASA concluded that claims that the product was “free” were misleading.

The ASA considered that consumers would deduce from the claims made in the emails that there was a very high demand for the product and that they should act quickly to take advantage of the offer. The ASA considered figures relating to visitor numbers to the website insufficient to support claims regarding the number of people who had signed up for the advance notification list. The ASA further noted that no evidence had been supplied relating to the level of interest in the previous launch, so, as such, the claims had not been substantiated. The ASA concluded that the claims regarding the popularity of the product were misleading and put undue pressure on recipients to purchase quickly.

Finally, the ASA concluded that the claims made in the ads implied that every product that was returned to sale after launch would be listed at a higher price. PUA had not demonstrated that the initial launch price was always the lowest price charged for their product and therefore the ASA considered the claim to be misleading.

Advertisers must ensure that they do not market a product as “free” if a customer has to pay shipping, handling or administration charges. Emailing consumers notifying them of increased demand for a product is in danger of unduly pressuring the recipient and advertisers must be able to justify such behaviour.

13. Zenimax Europe Ltd, 18 September 2013

An ad on YouTube for the videogame “The Evil Within” (rated as 18 PEGI (Pan European Game Information)) showed several violent images including a man working with barbed wire; a man who was studded with broken glass; shadowy figures carrying menacing weapons and wrapped in barbed wire; bloodied creatures crawling around a warehouse; a flayed human corpse; and a bubbling pool of blood out of which a blood covered multi-limbed creature arose. The ad ended with an image of a man lying down with a metal box on his head out of which exploded what appeared to be bloody tentacles.

Complaint/Decision

A complainant who saw the ad attached to and shown before a video about a children’s playset challenged whether it was responsibly targeted and whether the content was distressing and offensive.

The ASA upheld both elements of the complaint. The ad was aimed at logged-in YouTube users who were male and aged 18 to 35 years. YouTube’s guidelines for targeting ads in this way are based on a blend of “sign-in information” and “inferred information”. Consequently there is no guarantee that an ad would never be served to a non signed-in YouTube user. A user’s browsing preferences and search history affected the kind of ads that could be shown before YouTube content was presented. The ad was served as a skippable pre-roll, meaning users could skip after 5 seconds therefore lessening the impact of the ad. Nevertheless, the ASA was concerned that, even though the ad was targeted at “signed-in” users, there was still the possibility that the ad could be served to users who were under the age of 18 who, by way of internet searches, had expressed an interest in video games and/or horror movies. The ad had therefore not been responsibly targeted. Further, although there were no acts of violence against people depicted in the ad, the ASA noted that the images used were excessively gory and likely to cause distress and offence to a viewer.

Although targeting of adverts otherwise likely to cause offence or distress can often be successful, care must be taken to ensure targeting is properly effective.

14. ZULU Ventures Ltd t/a Sky Cig/Ten Motives Ltd/Sorse Distribution Ltd t/a 5 Colors/Zandera Ltd, 25 September 2013

There were four adjudications this month on electronic cigarettes (e-cigs). As a relatively new product and only recently advertised on TV e-cigs have not been considered before under the BCAP Code. The Medicines and Healthcare Products Regulatory Agency announced that following a public consultation on how to regulate nicotine-containing products (NCPs), such as e-cigs, all NCPs were to be regulated as medicines. The UK government will press for EU law to create a Europe-wide legal position on NCPs as medicines. The European Commission expects the new legislation to be adopted in 2013 and for it to come into effect in the UK from 2016, at which point NCPs will require a medicines licence. Until that time, e-cigs, which make no medicinal claims, will continue to be regulated as consumer products in the UK.

To avoid misleading consumers the ASA considers it important that e-cig ads make clear the nature of the product being advertised and that they state whether or not the product contains nicotine. The e-cig ads adjudicated upon this month did not identify the type of product being promoted. The ASA considered this significant, material information which was necessary for viewers if they wished to find out more. Inquisitive consumers are likely to visit the websites detailed in the ads in order to obtain more information about the product being advertised, which they may not do otherwise if they are aware of what is being advertised. Several of the ads this month omitted that information in the understanding that references to the type of product were prohibited by the BCAP Code. The ASA clarified that the BCAP Code rule only requires that ads for non-tobacco products, such as e-cigs, do not reference or promote smoking or tobacco and do not include a “design, colour, imagery, logo, style or the like that might be associated in the audience’s mind with a tobacco product”. The ASA concluded that this rule does not prevent an ad containing verbal or text references to an “e-cig”, “e-cigarette” or “vaporiser” or information that the product contains nicotine. Importantly, the ASA noted that e-cig ads will not automatically be found to be harmful providing they are advertised in a responsible manner which neither glamorises the nicotine product nor encourages excessive or inappropriate use.

RETAIL

15. JB Global Ltd t/a Oak Furniture Land, 4 September 2013

An email promoting www.oakfurnitureland.co.uk, sent 17 May 2013, stated “4 DAY SPECTACULAR must end Sunday!” and featured a range of products at sale prices, including the “Chaucer Solid Oak Large Sideboard…was: £838.49…Savings Price £394.95”.

Complaint/Decision

The complainant challenged that the ad was misleading as it implied the promoted prices were only available for a limited time, whereas he understood that they were the advertiser’s standard prices.

The ASA acknowledged that the Chaucer oak sideboard had erroneously been selected by two different departments to be included in two distinctly separate promotions that ran close to each other. The product had been included in the “4 DAY SPECTACULAR”, and the price had then increased before being lowered again for the second promotion. JB Global Ltd t/a Oak Furniture Land (OFL) were not able to provide evidence that the “was” price of £838.49 was the price the product was generally sold at prior to either promotion nor that the “was” price stated was accurate. Due to OFL’s failure to substantiate the “was” price the ASA concluded that the ad was misleading.

Advertisers need to take care in respect of time limited sales promotions, as this is also one of the areas covered by the 31 commercial practices deemed unfair in all circumstances under the CPRs.

16. Damartex UK Ltd t/a Damart, 4 and 11 September 2013

Damartex UK Ltd (Damart) is the subject of two adjudications this month for two separate advertisements.

(1) A direct mailing for a prize promotion stated on the envelope “CONFIDENTIAL FOR ATTENTION OF ADDRESSEE ONLY”. Further down the envelope it stated “YOUR TIME SENSITIVE DOCUMENTS ARE ENCLOSED”, which was also printed on the reverse of the envelope. The mailing stated “IMPORTANT…Please ensure that you act within 14 days to be eligible to claim maximum awards. Failure to do so could mean forfeiting the maximum £51,000.00!...*”.

(2) A mailing for a clothing catalogue stated “PLEASE DO NOT DISCARD OFFICIAL DOCUMENTS ENCLOSED FINALIST STATUS CONFIRMED”. Text on the reverse said “ACTION REQUESTED WITHIN 14 DAYS CONFIRMED FINALIST DOCUMENTS ENCLOSED F.A.O.”. The text named the recipient and stated “YOUR NAME IS ON THE FINALIST LIST AND YOU MUST ACT NOW… 4 out of 5 of the names listed below have already won £50,000*”. Large text across the centre of the page stated “CONFIDENTIAL” and “KEEP THIS SAFE”.

Complaint/Decision

Recipients of both mailings challenged whether they were obviously identifiable as marketing material because they appeared to be an official document. A recipient of the first mailing challenged whether the claims “TIME SENSITIVE…” and “act within 14 days…” were misleading because it was unclear when the 14 day deadline commenced.

The ASA upheld both parts of the complaint for the following reasons.

The ASA did acknowledge Damart’s name and address on the reverse of the envelopes but decided this text was much smaller than the other claims on the envelopes. Without further clarification of the contents, this was not sufficient to alert recipients that they were marketing communications. The ASA did acknowledge that the text on the front of the mailings and the poly wrap sealant had the characteristics of a marketing communication but also noted several other characteristics which suggested that official documentation was contained. Such characteristics include: the prominence of the words “CONFIDENTIAL” and “KEEP THIS SAFE” on the front; “PLEASE DO NOT DISCARD OFFICIAL…” printed on the back implied it was private official correspondence; the reverse had the appearance of official documentation; and the text “ACTION REQUIRED WITHIN…” and “MUST ACT NOW” on the front suggested an official deadline. Despite Damart’s argument that the envelope was obviously bulky from the catalogue it contained, the ASA considered that size did not remove the misleading impression created. The ASA concluded that the ad was not obviously identifiable as a marketing communication.

It was unclear that the response deadline related to entry into a prize draw rather than an official deadline. The ASA understood that Damart was able to track when the mailing was delivered, and from that information calculate whether a customer responded within the 14-day deadline. The mailing did not explain that the deadline was calculated from the customer’s receipt of the envelope, nor was it possible for the customer to work out when the deadline commenced, as the envelope had no postage stamp date and the enclosures were dateless. The ASA believed that this put undue pressure on consumers to respond immediately without knowing whether they were still eligible to participate. The ASA therefore concluded that the deadline claims were misleading.

The ASA has taken a strict and consistent approach to Damart’s marketing communications which imply that their packages contain official documentation. The ASA will not tolerate advertisers creating a misleading impression of official documentation in order to gain the customer’s attention and to achieve a quick customer response.

17. Dreams plc, 11 September 2013

An ad for a bed and mattress sale on the website www.dreams.co.uk stated “FREE DELIVERY on beds and mattresses*”. Small print at the bottom of the page stated “Free delivery is applicable on…orders Mon-Fri only. Sat/Sun delivery available for a £20 supplement”.

Complaint/Decision

The complainant challenged whether the claim “FREE DELIVERY” was misleading as they believed it was contradicted by the small print at the bottom of the page which stated that weekend deliveries attracted a £20 charge.

The ASA acknowledged Dreams Plc’s belief that the weekend delivery represented an additional service which was outside the scope of the “free delivery” offer. The ASA considered that consumers would reasonably expect a weekend delivery not to be included in the offer and that the small print qualification expanded on, rather than contradicted, the offer. The ASA also noted that the qualification was sufficiently prominent to capture a consumer’s attention due to the asterix. The ASA did not uphold the complaint, concluding that the ad was not misleading.

This adjudication shows that there can be a very fine line between what the ASA will read as an acceptable qualification and what will be a contradiction.

OTHER

18. SPUC Pro-Life Ltd, 4 September 2013

Two ads from the Society for the Protection of Unborn Children (SPUC) campaigning against same sex marriages included content stating “URGENT ACTION…STOP DAVID CAMERON DESTROYING BRITAINS FAMILIES WITH SAME SEX MARRIAGE PROPOSALS…Gay relationships will be promoted in schools…contact your MP to register your opposition… NHS-endorsed websites which promote high-risk sexual practices will be mainstreamed in schools…”.

Complaint/Decision

One complainant challenged whether the claim “gay relationships will be promoted in schools” was misleading. Three complainants challenged whether the claim “NHS-endorsed websites which promote high-risk sexual practices will be mainstreamed in schools” was misleading and could be substantiated.

The ASA noted that the CAP Code states that ads “whose principal function is to influence voters in a local, regional, national or international election or referendum” are exempt from the Code on the grounds that they are political advertising. However, the ASA considered that the SPUC ads sought to influence readers about proposed legislation but were not intended to influence voters in an election. As such the ASA concluded that the ads fell within the remit of the Code. The ASA upheld the complaints noting that the word “promote” would be interpreted to mean actively encouraged and that the NHS websites referred to by SPUC presented information in a responsible and educational manner and therefore did not promote high-risk sexual practices. Consequently, the ASA sensibly concluded that the claims were misleading and were not substantiated.

This adjudication shows the extent of the ASA’s remit in relation to political advertising and the ASA’s pragmatic approach to exaggerated claims.