ASA Adjudications Snapshot – February 2014

INTRODUCTION

This summary provides a selection of the most interesting ASA adjudications in February and highlights the key issues considered in those adjudications. Of interest this month are a number of adjudications in the food and drink category, including a couple for Heineken, one of which was upheld and the other of which was not. Further, there are several adjudications relating to some difficult issues which often arise in relation to promotions, namely changes to closing dates and availability of free gifts which run out due to their popularity.

It is also worth noting that the ASA published a help note on copycat websites this month. These are websites of companies offering official government services including passport renewal, driving licences, tax returns and European Health Insurance Cards, but in a manner which misrepresents that they are “official” or “authorised” and often requiring payment of higher than usual fees. The ASA has recently received several complaints in relation to these.

ADJUDICATIONS

FINANCIAL

1. Barclays Bank plc, 12 February 2014 (the ASA held that a promotion to win Premier League match tickets did not comply with the Code as the closing date was changed for commercial reasons within the advertiser’s control rather than circumstances outside their reasonable control)

2. Direct Line Group plc, 12 February 2014 (a complaint in relation to an ad claiming that Direct Line’s landlord insurance would beat the price of any other insurer was held not to be misleading as the ad mentioned that qualifying criteria would apply)

FOOD AND DRINK

3. Kellogg Marketing and Sales Company (UK) Ltd, 5 February 2014 (the ASA held that a promotion to redeem disco speakers had been run fairly as Kellogg had made a reasonable estimate of how many speakers would be redeemed despite stocks running out well before the closing date)

4. Warburtons Ltd, 5 February 2014 (a claim that Warburtons were now London’s biggest bakers was held to be unsubstantiated as the market research used to make the claim did not take into account freshly baked products in store and relied too heavily on data from major retailers)

5. Heineken UK Ltd, 12 February 2014 (two TV ads for Kronenbourg lager were held to be misleading as the emphasis on France in the ads suggested that the entire brewing and manufacturing process took place in France when in fact the lager was brewed in the UK)

6. Arla Foods Ltd, 19 February 2014 (a complaint that an ad for products suitable for lactose intolerance sufferers did not make sufficiently clear that the products would be dangerous for dairy allergy sufferers was held not to be misleading or harmful)

7. Heineken UK Ltd, 26 February 2014 (a TV ad showing three friends enjoying a pint of Strongbow after overcoming stressful social and sports related situations was held not to be irresponsible)

8. Organic Trade Board, 26 February 2014 (an ad suggesting that “organic” cows did not have a high protein diet was held not to be misleading)

HEALTH AND BEAUTY

9. Johnson & Johnson, 26 February 2014 (an ad for Nicorette mouth spray was held not to be misleading for implying that the product was a smoking cessation device because the product had been licensed by the MHRA for that purpose)

10. Probiotics International, 26 February 2014 (the use of the word “probiotic” in an ad promoting food supplements was held to be an unauthorised health claim)

LEISURE

11. Massillon Victory Ltd t/a easybreezy.com, 12 February 2014 (an ad promoting users to complete a survey was held to be misleading for implying that it was run by, or on behalf of, Amazon and for implying that users could receive a camera for £1 for completing the survey)

12. The Basketball League Ltd, 26 February 2014 (a promotion which had its closing date extended was held to have been conducted fairly as the promoter experienced technical issues which were beyond their reasonable control)

13. Telegraph Media Group Ltd t/a Daily Telegraph, 26 February 2014 (The price for an annual newspaper subscription, which offered a free ASUS tablet as an incentive, was held not to have been increased to subsidise the cost of the tablet)

RETAIL

14. Tesco Stores Ltd, 5 February 2014 (an ad showing children laughing at a video clip of a cat misjudging a jump was considered not to encourage animal cruelty)

15. URBN UK Ltd t/a Urban Outfitters, 19 February 2014 (a website promoting a hip flask with the phrase “F*** My Liver” printed in it was held to encourage excessive drinking)

16. Dyson Ltd, 19 February 2014 (an ad for a vacuum cleaner was held to be misleading for implying that the extension tube and hose could be folded away into the vacuum cleaner when this was not the case)

17. Halfords Ltd, 26 February 2014 (an ad featuring an older man requesting a younger man to pose for his paintings was held not to be offensive for being sexually suggestive)

TELECOMMUNICATIONS

18. Avonline plc, 5 February 2014 (an ad promoting unlimited broadband was held to be misleading as Avonline had unsuccessfully attempted to qualify the claim by arguing that the restrictions they imposed were moderate only)

FINANCIAL

1. Barclays Bank plc, 12 February 2014

An ad for a promotion on the back of Barclays’ cashpoint receipts read “Win a pair of Barclays Premier League match tickets every 90 minutes, every day, until the end of the 2013/2014 season”. The ad included a unique code with further text stating “To enter the free draw, text the code above followed by the initials of a Barclays Premier League Club to 68887 or visit Barclays.co.uk/ticketoffice.” Small print at the bottom of the ad stated “Terms and conditions apply”. The cashpoint receipts were dispensed on 6 October 2013 and 22 October 2013 respectively.

Complaint / Decision

The complainant challenged whether the promotion complied with the CAP Code as they discovered that the promotion had ended when they tried to enter.

The ASA upheld the complaint. In August 2013, Barclays decided to withdraw the promotion by 25 September so that they could replace it with a promotion that would use social media instead. Under the CAP Code, closing dates of a promotion cannot be changed unless circumstances outside the reasonable control of the promoter make it unavoidable. However, the ASA considered that Barclays had instead taken a commercial decision within their control and were therefore in breach of the Code. Moreover, regardless of the change of closing dates, the ads also did not state the original closing date. The ASA considers closing dates to be a significant condition of a promotion and so they should have been included.

Barclays explained to the ASA that it had removed on-screen messaging from cashpoints, decommissioned the Barclays ticket office website, replaced the receipt rolls with blank ones and communicated the end of the promotion with branches and third parties to avoid confusion among participants. Despite taking all these steps, the ASA considered that additional steps to inform participants of the promotion’s premature end could have been taken.

Due to IT constraints, Barclays acknowledged that the on-screen ATM message could not be removed until 25 September, the promotion’s new closing date. Barclays sought to rely on the belief that most participants entered immediately upon receipt of a code. However, the ASA disagreed and concluded that, as not all entrants would enter immediately, Barclays should have taken steps to avoid causing disappointment such as allowing a grace period for codes to be entered.

This adjudication shows the very strict approach that the ASA will generally take on closing dates for promotions, which should always be included in ads and which should not be changed for anything but exceptional reasons.

2. Direct Line Group Ltd, 12 February 2014

A TV ad promoting home insurance for landlords claimed “we guarantee to beat the price of any other insurer”. On-screen text stated “New customers only. Cover on an equivalent basis to ours. Excludes N.I. Qualifying criteria apply”.

Complaint / Decision

The complainant challenged whether the claim “we guarantee to beat the price of any other insurer” was misleading because Direct Line Group did not offer cover for landlords with Houses in Multiple Occupation (HMOs).

The ASA did not uphold the complaint. The ASA considered that viewers were likely to recognise that such a claim would be dependent upon Direct Line accepting to insure a property at all and that many factors could affect an insurer’s decision to offer cover. Although it was not specifically mentioned that HMO properties were excluded from the offer, the ASA acknowledged that they would be unlikely to be eligible for Direct Line’s cover due to the degree of risk that such properties pose and as such they would represent an unacceptable risk under Direct Line’s risk assessment policy.

The inclusion of the text “Qualifying criteria apply” further implied that there would be limitations on the offer. The ASA therefore concluded that many HMOs were unable to obtain insurance cover from Direct Line because of the company’s risk assessment policy rather than due to any direct exclusion to the price-beat guarantee itself. Further, they were satisfied that the on-screen reference to qualifying criteria sufficiently clarified this.

The ASA can sometimes take a very strict approach in relation to significant qualifications to headline claims. This adjudication shows a more pragmatic approach being taken.

FOOD AND DRINK

3. Kellogg Marketing and Sales Company (UK) Ltd, 5 February 2014

A sales promotion on a can of Pringles stated “Buy 2 cans & get your disco speaker”. Small print on the reverse of the can stated “Valid until 31.12.2013 – while stocks last”.

Complaint / Decision

The complainant challenged whether the promotion had been run fairly because they believed stocks of the disco speakers had run out three months before the closing date of the offer.

The ASA did not uphold the decision. When planning the promotion, Kellogg’s placed an initial order for 150,000 speakers based on the previous year’s promotion when 146,336 speakers were redeemed. When they ran out of the initial order, they made clear on their promotional page that stocks had run out but that a further 70,000 speakers had been ordered. These also ran out surprisingly quickly, after which Kellogg’s stopped shipping the promotion Pringles cans.

As the speakers in the promotion were similar to those given away in the previous year’s promotion, the ASA considered that the comparison was a reasonable basis for estimating the demand for the current promotion and noted that Kellogg’s had actually ordered more speakers than for the previous promotion. It therefore held that Kellogg’s had made a reasonable estimate of the demand. The ASA also acknowledged the further order of 70,000 cans that Kellogg’s had made and that Kellogg’s had acted promptly and appropriately once stocks had run out by communicating the end of the promotion to consumers and stopping the shipping of the promotional cans.

Free gift promotions can often be problematic, particularly so far as estimating the likely demand is concerned. The ASA will generally expect an estimate to be based on previous promotions, but with increasing trading of coupons and code numbers over the internet, even this can cause problems. (The Pringle codes were even advertised on eBay.) The CAP Code makes clear that advertisers should “offer a refund or a substitute product” if they are unable to supply demand for a promotional offer because of an unexpectedly high response. Here Kellogg’s were able to show that they had added a further 50% of speakers, which the ASA appear to have accepted, but it remains unclear exactly how far advertisers need to go in this respect by way of offering refunds or substitutes.

4. Warburtons Ltd, 5 February 2014

A national press ad for Warburtons Ltd stated “No.1 Now London’s biggest bakers”.

Complaint / Decision

Premier Food Groups Ltd and Allied Bakeries challenged whether the claim was misleading and could be substantiated.

The ASA upheld the complaint. Warburtons used data covering both a 12-week and 52-week period for “wrapped bakery products” which they defined as bagged products purchased for consumption over the course of a few days and located in the bakery aisle of supermarkets. Warburtons decided to use only the data compiled from “grocery multiples”, which covered all the major retailers, and discounted sales made from “impulse channels”, which included convenience stores, independent retailers, multiple forecourts and off-licences. Warburtons sought to rely on the fact that grocery multiples represented a large percentage of the wrapped bakery market and used direct sales data rather than statistical modelling.

However, the ASA considered that a significant number of consumers were likely to buy bakery products through impulse channels such as independent retailers and convenience stores rather than just the large retailers. The ASA also noted that Warburtons did not include products that are freshly baked in-store at major retailers in its data. It considered that a significant number of consumers were likely to buy freshly baked products in-store, instead of or as well as, wrapped bakery products and that consumers would interpret the word “bakers” to include both types of bakery products.

In addition, Warburtons had not verified the data source in the ad nor had they qualified the claim by providing information about the criteria that they had applied. The ASA concluded that Warburtons had not provided consumers with sufficient information to understand the basis of the comparison and therefore the ad was deemed to be misleading.

The ASA interprets “number one” claims very strictly and is stringent in its approach to substantiation. Here, it is worth noting that Hovis provided data from their own independent market research sources, which contradicted Warburtons’ data. If an advertiser is making this type of claim, it should consider carefully any implications as to the comparison being made and make sure that any qualifications are clear, and that they do not in fact contradict the headline claims.

5. Heineken UK Ltd, 12 February 2014

A press ad for Kronenbourg 1664 stated “IF YOU FIND A BETTER TASTING FRENCH BEER, WE’LL EAT OUR BERETS. The French know a thing or two about taste. That’s why Kronenbourg 1664 is always brewed with the aromatic Strisselspalt hop for A Taste Supreme”. Small print on the bottom corner of the page read “Brewed in the UK”.

A TV ad for the same product featured French footballer Eric Cantona and stated “Here in Alsace, things are a little bit different. The hop farmers are treated like the footballers of Britain …They are the men that grow the noble hops that make Kronenbourg the taste supreme…”. On-screen text appeared in the corner of the screen for several seconds stating, “Brewed in the UK”.

Complaints / Decisions

1. A complainant challenged whether the press ad was misleading because it implied that Kronenbourg 1664 was brewed in France when this was not the case.

2. A second complainant challenged whether the TV ad was misleading because it implied that the hops used to produce Kronenbourg 1664 were grown in France when they were not.

The ASA upheld both complaints.

1. Although the ASA acknowledged that Kronenbourg’s French heritage was an integral part of the beer’s brand, it noted that the ad presented the product in a way that really emphasised the beer’s connection with France. Heineken sought to rely on the fact that the ad mentioned the use of the Strisselspalt hop, which was sourced from Alsace, France. However, the ASA concluded that the French emphasis and context in the ad would lead consumers to believe that the entire brewing and manufacturing process took place there. In addition, rather than clarifying the product’s origins, the ASA ruled that the small print stating that the beer was brewed in the UK instead contradicted the main message of the ad.

2. The ASA considered that statements in the ad such as “are the men that grow the noble hops that make Kronenbourg the taste supreme” emphasised the contribution of French hops in the beer and suggested that all or a considerable amount of hops used in the brewing process were sourced from France. However, the ASA noted that the Strisselspalt hop, sourced from the Alsace region of France, was only one of several hops used to create the beer and did not constitute a significant majority of the total hops used in the beer’s recipe; it therefore ruled the ad to be misleading.

Both complaints related to the heritage of the product. This adjudication reflects the strict line that the ASA generally takes on “heritage” issues, see, for example the ASA’s decision against Heineken from August 2011. Here, Heineken simply overstated the connection of their beer with France. Marketing Week has reported that Heineken is seeking a review of this decision by the Independent Reviewer, so it will be interesting to see the outcome of this procedure.

6. Arla Foods Ltd, 19 February 2014

A TV ad for lactose-free products called Lactofree showed hedgehogs in a supermarket with a voice, over a loudspeaker, saying, “Listen up hedgehogs, you’re not intolerant to dairy, you’re just intolerant to lactose, the sugars in dairy. Remove the lactose and, by jingo, it’s dairy all round. Say yes to a milky latte, say yes to a really cheesy cheese pizza. Go on, say yes to dairy.” An on-screen footnote stated “Not suitable for milk allergy sufferers. If in doubt consult your GP”.

Complaint / Decision

One complainant, whose seven-year old son is allergic to dairy and was given the product by mistake, challenged whether the ad was misleading and harmful because it did not make sufficiently clear that the product would be dangerous for dairy allergy sufferers.

The ASA did not uphold the complaint. The ASA acknowledged that the statement “Listen up hedgehogs, you’re not intolerant to dairy, you’re just intolerant to lactose, the sugars in dairy” on its own could be misinterpreted to mean that dairy allergy sufferers were not allergic to dairy but intolerant to lactose, the sugars in dairy. However, it was satisfied that the accompanying on-screen text “Not suitable for milk allergy sufferers” was sufficient to clarify that the products were for lactose-intolerant sufferers only and were not suitable for dairy allergy sufferers, and therefore ruled it not to be misleading.

The ASA noted the on-screen text suggesting that consumers should consult with their GP if in doubt as well as an additional on-screen footnote which read “Search Lactofree” for guiding consumers who may have queries about the product. Furthermore, it considered that dairy allergy sufferers were more likely to be cautious and would therefore pay more attention to the on-screen text in the ad. The ASA therefore concluded that the ad did not condone behaviour that was harmful to health and safety.

This is an interesting adjudication and it is somewhat surprising to see the ASA take what appears to be a fairly lenient approach to advertising which impacts on a serious allergic condition. But it seems that the ASA put considerable weight on the on-screen text, and the fact that dairy allergy sufferers would be sufficiently cautious to look beyond the headline claim.

7. Heineken UK Ltd, 26 February 2014

A TV ad for Strongbow cider showed three scenarios. In the first one, a man was at the end of a snooker game taking a shot on the black; the shot was made to look seemingly impossible. In the second scenario, a nervous-looking groom was about to make a speech when the words on his notes disappear from the page and the guests are replaced with judges. In the final scenario, a man in a football match is faced with a seemingly impossible shot on a goal filled with bricks and a goal keeper with giant gloves.

The ad concludes with the snooker shot being taken successfully, the groom’s speech being delivered to applause and the goal being scored. The ad ended with the groom in the wedding scenario toasting himself with a pint of Strongbow and featured an image of the product with text stating “EARN IT”.

Complaint / Decision

A complainant challenged whether the ad was irresponsible for implying that drinking alcohol could be used to overcome problems, enhance personal qualities and improve performance.

The ASA did not uphold the complaint. The ASA acknowledged that the three characters in the scenarios overcame their concerns in the social and sports related situations to succeed in their tasks. It recognised also that the ad did not demonstrate or suggest that alcohol was the reason for their success and no alcohol consumption was shown until the end of the ad.

Although the ad implied that the alcohol had been “earned” as a result of the three characters’ success in their tasks, the ASA ruled that alcohol was not considered to be the intended reward for success nor did it seem that the anticipation of alcohol as the reward was the purpose for carrying out or succeeding in the tasks. In addition, alcohol was not shown to be consumed excessively. The ASA therefore concluded that the ad was not irresponsible.

Advertisements for alcohol can sometimes be difficult to assess against the CAP Code and there can be a very fine line between acceptable and unacceptable advertising. The ASA accepted that the “Earn it” tag was sufficient to make it clear that the alcohol was a reward for success, rather than success being dependent on the consumption of alcohol.

8. Organic Trade Board, 26 February 2014

A banner ad on www.tesco.com promoting organic milk contained an image of two cows with speech bubbles next to each. The first one read “This latest high-protein diet is amazing, hun. You must try it.” to which the other read “No thanks, love, I’m organic. I only do natural.” Text below the image read “Organic. Naturally different.”

Complaints / Decisions

The complainant challenged whether the ad was misleading for implying that:

1. high-protein dairy cow diets were not natural; and

2. no cows from which organic milk was sourced were fed high-protein diets.

Neither of the complaints was upheld.

1. The ASA considered that consumers were likely to interpret the phrase “I’m organic. I only do natural” as meaning that high-protein cow diets were not natural. The ASA understood that dairy cows were fed a mixture of forage and concentrate and that the concentrate was generally higher in protein. The Organic Board stated that organic cows were fed a type of concentrate which was considered not to be high-protein and that at least 60% of the diet consisted of forage.

The ASA recognised that organic concentrate feeds could be produced by mechanical means and therefore they would not fall under the definition of a “natural” food provided by the Food Standards Agency for human food. However, the ASA considered that most consumers would think of animal diets in more simplistic terms than human diets and would therefore expect cows to eat only grass, roughage and other types of forage. It therefore concluded that the use of concentrate feed would be regarded by consumers as not being natural regardless of whether it was in line with organic practices or not. Consequently, the ASA considered that a claim that high-protein dairy cow diets were not natural was not misleading.

2. The ASA understood that, when a farmer wants to increase the levels of protein in their herds, they would feed them a lower ratio of forage to concentrate. Under EU law, organically managed herds must be fed a diet of at least 60% forage so as to limit the amount of protein. The ASA noted that milk yields from organic cows were generally lower than from non-organic cows, which is consistent with the organic cows receiving less protein.

There was evidence to suggest that, during some periods of the year, it was difficult to monitor whether organic cows had eaten a high-protein diet, due to them grazing in areas where forage contained higher levels of protein. Nevertheless, the ASA considered that this eventuality was not likely to mislead consumers because the change in protein content in the cows’ diet was not as a result of an artificial increase.

There are strict requirements to adhere to when advertising organic products. Guidance on advertising organic products can be found on the ASA’s website.

HEALTH AND BEAUTY

9. Johnson & Johnson, 26 February 2014

A national press ad for a Nicorette mouth spray included the text “QUICK CRAVING RELIEF TO HELP YOU GET THROUGH A SUCCESSFUL STOPOBER”.

Complaints / Decisions

The complainant challenged whether the ad breached the CAP Code because it;

1. implied that the product was suitable for using as a smoking cessation device; and

2. misleadingly implied an association with the NHS “Stopober” campaign.

Neither of the complaints was upheld.

1. The ASA acknowledged that the ad implied that consumers could use the product as a smoking cessation device. As the product had been licensed by the MHRA for that purpose, the ASA held that the ad did not breach the CAP Code.

2. The Stopober challenge was an NHS led initiative which challenged smokers to quit smoking for 28 days. The ASA noted that Johnson & Johnson had provided evidence showing that Public Health England had approved the ad and the inclusion of the reference to “Stopober” in it. It therefore concluded that the ad was not misleading.

Obtaining approval from the relevant authorities was a key point in the ASA’s decision. In a similar ASA adjudication this month, which involved 1111 EC Services Ltd t/a V2Cigs UK, the ASA held that the ad was misleading for referring to the NHS’s Stopober campaign as there was no evidence to suggest that the ad had been endorsed or authorised by a public body associated with the campaign. This adjudication, as well as another one involving Nicocigs were both held to be misleading for implying that electronic cigarettes were suitable smoking cessation devices. These decisions reflect an increase in complaints concerning electronic cigarettes and the ASA’s tougher stance on controlling electronic cigarette advertising.

10. Probiotics International Ltd, 26 February 2014

Website www.bio-kult.com promoted food supplements. Text on a product page headed “BIO-KULT CANDEA” stated “Bio-Kult Candea contains seven strains of probiotic bacteria along with added garlic and grapefruit seed extract”. Text on another product page headed “BIO-KULT PRO-CYAN” stated “Bio-Kult Pro-Cyan is a triple action formula scientifically developed with cranberry extract … two specifically selected probiotic strains and Vitamin A…” and “Probiotic formula…”.

Complaint / Decision

A complainant challenged whether the claim “probiotic” was an unauthorised health claim.

The ASA upheld the complaint. Under EU Regulation 1924/2006 on Nutrition and Health Claims made on Foods, only health claims authorised on the EU Register of Nutrition and Health Claims made on Foods (the “Register”) are permitted in marketing communications. This rule is reflected in the CAP Code.

Probiotics International Ltd believed that the use of the term “probiotic” was not connected with any health claim and that, by including it in their promotional material, they were merely keeping consumers informed of the ingredients in their products. However, after reviewing guidance from the EC Commission and Department of Health, the ASA concluded that a claim that used the term “probiotic” was an example of a health claim which subsequently should be authorised on the Register. For example, in the EC Commission guidance “probiotics/prebiotics” is listed as an example of a health claim relating to a substance / category of substances of which “there is a description or indication of a functionality or an implied effect on health”. Similarly the Department of Health’s guidance states “…claims, such as “probiotics and prebiotic fibre”, refer to a function in the body, and are therefore defined as health claims and will need to be authorised…”

The ASA considered that the term “probiotic” was a specific health claim because it implied that there was a link between the substance and health. Therefore the ASA ruled that the terms “probiotic strains”, “probiotic formula” and probiotic bacteria” were not authorised health claims on the Register and breached the CAP Code.

As demonstrated by this adjudication, the area of food advertising is highly technical. Making claims, or simply using terms which may be read as claims, should be approached with caution.

LEISURE

11. Massillon Victory Ltd t/a easybreezy.com, 12 February 2014

Ads for easybreezy.com, a paid-for competition website stated the following.

A pop up survey was headed “Visitor Survey: Amazon” and further text stated “You’ve been selected to take part in an anonymous survey…Tell us what you think of Amazon in this 30 second questionnaire, and to say ‘thank you’, we’ll offer you a few exclusive giveaways…” Small print at the bottom stated “We are not affiliated nor partner, with Amazon. Amazon has not authored, participated in, or in any way reviewed this advertisement or authorised it.”

After completing the survey, a page was displayed with text stating, “We have the following special offers for your participation. You may choose (2) offers from the list below for participating in our survey!” One of the offers consisted of a Fuji Camera-FINEPIX AX600, next to which it said “Your cost: £1”.

Once selecting the reward, a webpage opened on www.easybreezy.com which was headed “Get your FUJIFILM camera + 3 days access to easybreezy.com for just £1”. Smaller text underneath an image of the camera stated, “When your trial period of 3 days expires, it will automatically continue into a recurring subscription… for just £74.00 per month. You can cancel your trial period or subscription at any time”.

Questions and answers were displayed at the bottom. One of the questions asked “Why do you need my credit card information?” The answer provided was, “When you sign up, you are offered a welcome bonus…for just £1…+ 3 day trial for the website. We will deduct the £1…from your credit card as part of the welcome bonus. If you carry on after three days, we charge the agreed amount from your card...”

Another question asked, “How can I receive my bonus?” the answer to which read, “1. After the sign up, login to Easybreezy.com with the password that we have sent you…add your postal address. We will then send you a postal letter with a PIN code. Once this letter arrives, please enter the PIN code on easybreezy.com to verify your address, 2. Play at least 10 complete games within the trial period…, 3. Not cancel your trial period during the first 24 hours of the trial period. We will then send you your welcome bonus to the address you have confirmed with us.”

Complaints / Decisions

The ASA received 2 complaints;

1. One complainant challenged whether the initial pop-up survey misleadingly implied that the survey was run by, or on behalf of, Amazon. The complainant saw the pop-up when they were using the Amazon website.

2. Both complainants challenged whether the ads made sufficiently clear that by submitting their card details they were signing up to an ongoing subscription and would be charged unless they cancelled within the three-day trial period.

3. One complainant challenged whether the claims that they could obtain the camera for £1 were misleading because they were told that they were ineligible to receive it because they cancelled their subscription during the trial period.

The ASA upheld all three complaints.

1. The ASA acknowledged that Massillon Victory had included small print in the pop-up and the subsequent web page to explain that they were not affiliated with Amazon or that their survey was run by, or on behalf of, Amazon. However, they noted that the complainant had seen the pop-up when browsing the Amazon website. It considered that consumers would usually expect pop-ups relating to visitor surveys to be directly connected with the website on which they were browsing. Furthermore, the ASA noted that the header “Visitor Survey: Amazon” further suggested that the survey was run by, or on behalf of, Amazon. The ASA therefore concluded that the ad was misleading.

2. The ASA considered that it was significant material information that to obtain any of the offers the consumer would have to provide their card details and sign up to an ongoing subscription. However, the wording “Tell us what you think of Amazon in this 30 second questionnaire, and to say ‘thank you’, we’ll offer you a few exclusive giveaways” implied that completing the questionnaire was sufficient to be able to obtain the offers. The ASA noted that the material information should have been made clear in the first pop-up and repeated on the final page of the ad so that consumers could make an informed decision.

The ASA also concluded that the requirement to sign up for an ongoing subscription should have immediately followed the header on the second page to make it clear that consumers would be charged for this unless they cancelled within the trial period.

3. Both the initial pop up and the survey post completion page stated that consumers could obtain the camera for £1. The complainant was told that they were ineligible for the camera as they had cancelled their subscription during the trial period. This was not mentioned as a significant requirement on either of the pages. The ASA therefore considered that the actual cost of the camera was £75. The claim was therefore held to be misleading.

This result is not surprising as the ASA always takes a strict approach to promotions which mislead customers in such a way that they could suffer considerable financial detriment.

12. The Basketball League Ltd, 26 February 2014

A TV subscription for 30 live basketball league games, which was promoted on website www.bbl.org.uk, stated “BBL LEAGUE PASS JUST £29.99 DON’T MISS OUT! VISIT WWW.BBL.ORG.UK TO SUBSCRIBE NOW!”. Further text stated “OFFER ENDS SOON!” and “£1 PER GAME DISCOUNT OFFER WILL EXPIRE AT 12PM ON 18TH OCTOBER 2013* … *AFTER WHICH POINT THE LEAGUE PASS WILL REVERT FROM £29.99 TO £49.99”.

Complaint / Decision

The complainant challenged whether the promotion was misleading and had been conducted fairly, because the closing date had been extended without good cause.

The ASA did not uphold the complaint. Under the CAP Code, closing dates for promotions should not be changed unless circumstances outside the reasonable control of the promoter make it unavoidable. The Basketball League (the “BBL”) explained that they had extended the closing date because they had experienced technical difficulties with their live streaming technology during the initial promotional period. This was subsequently publicised on social media which negatively impacted its sales figures.

Whilst the ASA considered that the low sales figures would not in itself be a sufficient reason to extend the offer closing date, they accepted that the technical issues with the streaming technology were circumstances which were outside the BBL’s reasonable control. The ASA also noted that BBL’s decision to extend the offer allowed them to resolve the technical issues whilst still allowing customers to take advantage of the offer and no subscribers who signed up under the original terms of the offer were disadvantaged in any way.

This adjudication contrasts with the Barclays adjudication (see above). The key difference is that BBL suffered from technical issues outside their control, while Barclays had made a commercial decision to change the closing date.

13. Telegraph Media Group Ltd t/a Daily Telegraph, 26 February 2014

A national press ad promoting an annual subscription for the Telegraph included the following text: “FREE ASUS MeMO Pad HD 7 worth £129 when you subscribe … Included with your subscription The Telegraph newspapers for a year, seven days a week Free access on web, tablet and smart phone, worth £9.99 a month Subscriber rewards at more than 5,000 venues across the UK All for only £8 a week. Small footnote text stated “…This offer is only available to new subscribers … The ASUS MeMO Pad is only available to subscribers who take out a 52 week subscription paid in advance…”

Complaint / Decision

The complainant challenged whether it was misleading to describe the MeMO Pad as “free” because the subscription price had been increased.

The ASA did not uphold the complaint. Although the subscription price of £8 a week was higher than the price charged for existing subscribers for the same package, the ASA considered that the offer was a new and different offer to the Telegraph’s other subscription promotions and should be looked at separately. The ASA noted that the promotion only applied to new subscribers who paid the full fee in advance and recognised that it was common for promoters to offer new and existing subscribers different incentives or rewards for the purposes of both attracting new subscribers and retaining existing ones.

In addition, the Daily Telegraph had provided the ASA with correspondence demonstrating that ASUS had given them the MeMO Pads free of charge. The ASA also acknowledged that, since launching this particular subscription package in July 2013, different free products had been offered as an incentive before the MeMO Pad. The ASA therefore concluded that the subscription price had not been increased to subsidise the cost of the MeMO Pad and so the claim that it was “free” was not misleading.

Great care needs to be taken when making claims that something is “free”. Advertisers should analyse the offer carefully to ensure that it truly is “free”. The ASA has published a help note on “free” claims.

RETAIL

14. Tesco Stores Ltd, 5 February 2014

A TV and video-on-demand (“VOD”) ad showed two young boys looking towards the camera, watching something off screen. The boys continued watching before bursting into laughter. The shot then changed to show a tablet device, which played a video clip of a cat attempting to jump from one roof to another, and then missing, with a screech. On-screen text stated “Let’s watch…Let’s laugh…Let’s share…Let’s hudl…”.

Complaints / Decisions

The ASA received 43 complaints.

1. Several complainants challenged whether the ad was likely to cause serious or widespread offence.

2. Several complainants challenged whether the ad was irresponsible and harmful for encouraging animal cruelty.

3. One complainant challenged whether the ad was unsuitable for broadcast before 9pm.

The ASA did not uphold any of the complaints. It considered that the ad simply portrayed the children’s natural reaction to viewing a video clip of a cat missing a jump. The fact that the cat misjudged the jump by its own volition and had not been forced or encouraged to jump meant that nothing in the ad could be emulated nor would it be likely to encourage animal cruelty. The ASA concluded that it was therefore not irresponsible or harmful and did not warrant a scheduling restriction.

This decision is a reminder of the approach taken by the ASA when it decided last year not to investigate further an ad for Marmite which parodied an RSPCA campaign (see previous Law Now). Animal related ads are sensitive and can attract a high number of complaints but the ASA will usually take a balanced view.

15. URBN UK Ltd t/a Urban Outfitters, 19 February 2014

Website www.urbanoutfitters.co.uk featured a hip flask with text stated on it that read “F**K MY LIVER” (without the asterisks). The website stated “F**k My Liver Hip Flask … Drink like the rebel you are with this F**K My Liver printed hip flask”.

Complaint / Decision

The complainant challenged whether the website was irresponsible for encouraging excessive drinking.

The ASA upheld the decision. Urban Outfitters argued that they were merely presenting a funny and lighted-hearted ad which reflected an attitude of disregard for others’ beliefs and was not meant to be taken seriously. However, the ASA considered that there was a strong link between the product’s purpose (i.e. the consumption of a drink) and the reference to “liver” which would be directly interpreted to be related to alcohol consumption. The ASA therefore interpreted the phrase “F**k my liver” as encouraging consumers to disregard well-known advice about the negative impact that alcohol can have on the liver.

In relation to the phrase “Drink like the rebel you are”, the ASA regarded the word “rebel” as a reference to those who rejected normal conventions and were likely to take activities to an extreme. In the present context, involving a product for alcohol consumption, the ASA concluded that the phrase was likely to be seen as encouraging excessive consumption of alcohol and portraying it as a challenge.

This ad was clearly in breach of the CAP Code and it is unsurprising that the ASA upheld the complaint.

16. Dyson Ltd, 19 February 2014

A TV ad for a vacuum cleaner showed a woman vacuuming with the product and then the extension tube being collapsed (with one half being placed inside the other) to be put away. In the next shot, the vacuum cleaner was shown, without the extension tube or hose, being placed on a shelf in a cupboard. The voice-over stated, “So there you have it, the smallest, quietest Dyson Ball vacuum”.

Complaint / Decision

The complainant challenged whether the ad was misleading for erroneously implying that the extension tube and hose could be folded away into the product.

The ASA upheld the complaint. The beginning of the ad showed the components of the vacuum cleaner being put together, with no tube or hose connected. Dyson believed that this image was sufficient to demonstrate that there was no tube or hose inside the cleaner nor was there any space for them. Furthermore, the ad showed the tube and hose in use and they appeared to be obviously larger than the main body of the machine.

The ASA acknowledged that the opening sequences made it clear that there was unlikely to be room inside the vacuum cleaner for the extension tube and hose. However, it considered that a sequence of a scene, which showed how part of the tube collapsed into itself, followed immediately by a scene showing the machine being placed on a small shelf suggested otherwise. The ASA reasoned that the sequence implied that one of the advantages of the product was that it could be stored in a small space, including by collapsing the extension tube and hose into the body.

This adjudication demonstrates that it is important to consider an ad as a whole. The combination of the voiceover with the images together created an overall impression which the ASA considered to be misleading.

17. Halfords Ltd, 26 February 2014

A TV ad featured two men in a garage. The older man fitted a battery in the younger man’s car and the younger man thanked him saying “Thanks so much Bob. Let me know if I can ever return the favour” to which Bob replied “There is one thing. Pose for me David. I’m tired of painting you from memory.” David smiled weakly while Bob stood holding a paint palette and brush. The garage door closed slowly after which a voice over stated “At Halfords we fit batteries in the car park from £6.99. Much cheaper than a favour.” The final shot showed a series of paintings, one of which was of a centaur with a naked torso and David’s face. On-screen text stated “#WorstFavour. Halfords we ft. Cheaper than a favour”.

Complaints / Decisions

The ASA received 40 complaints.

1. Some of the complainants challenged whether the ad was offensive for being sexually suggestive and implying that an older man was sexually taking advantage of a younger man. Some drew parallels with the Jimmy Savile case and the grooming of teenagers by paedophiles for sexually explicit pictures.

2. Some of the complainants challenged whether the ad was unsuitable for children to see.

Neither of the complaints was upheld.

1. The ASA acknowledged that the theme of the ad was that it was better to go to Halfords than owe somebody an unpleasant favour and that in this context, an older man asking a younger man to pose for him could be considered inappropriate. However, the ASA regarded the overall tone of the ad as light-hearted and, despite the age difference between the two men, David was clearly an adult in his twenties.

The ASA recognised that some viewers may consider that Bob thought about David in a sexual way. However, comments such as “I’m tired of painting you from memory” suggested that Bob saw David as nothing more than a muse for his paintings. The ASA also noted that Bob seemed shy and embarrassed when asking David and David’s reaction suggested awkward disbelief as opposed to concern. Moreover, although the closing of the garage door could imply notions of secrecy and entrapment, the ASA accepted that it was not unusual for the painting of models to take place in private.

Although David was portrayed shirtless in Bob’s sketches and in the image depicting David as a centaur, the ASA considered that this would be regarded as bizarre rather than sexual or sinister. The ASA was therefore satisfied that the ad was unlikely to cause serious or widespread offence.

2. The ASA noted that a number of complainants were concerned with the sexual and sinister tones in the ad and regarded Bob’s behaviour as predatory. However, it concluded that there were no explicit suggestions of sexual activity between the characters. Although David appeared shirtless in Bob’s painting, the ASA considered that a centaur was traditionally portrayed as such and therefore the image was fantastical as opposed to sexual. Moreover, the ASA held that any sexual innuendo or imagery was subtle and was therefore unlikely to be noticed by children.

Although the ASA did not uphold these complaints, the adjudication indicates that care needs to be taken with ads which are meant to be humorous. Not everybody shares the same sense of humour and what may be funny to some might potentially be offensive to others.

TELECOMMUNICATIONS

18. Avonline plc, 5 February 2014

A website for a satellite broadband provider stated “TOOWAY ‘ABSOLUTE’. Limited Time OFFER. Download Speed 20.0Mb. Upload speed 6.0Mb. Monthly Data Allowance UNLIMITED and UNLIMITED at Night (11pm-7am)…”.

Complaint / Decision

The complainant challenged whether the “UNLIMITED” claims in the ad were misleading because they believed that the advertiser’s traffic management and fair access policies had a more than moderate impact on customers exceeding data thresholds.

The ASA upheld the complaint. The ASA was of the impression that “unlimited” was a strong and absolute claim. It considered that consumers would interpret that services advertised as such would be subject only to moderate restrictions.

The ASA interpreted the claim “Monthly Data Allowance UNLIMITED and UNLIMITED at Night (11pm – 7am)” as meaning that data usage was unlimited but that there was a restriction on speed throughout the day between 7am and 11pm. Although this restriction was expressed in the ad to qualify the “unlimited” claim, the ASA considered that such a strong and absolute claim as “unlimited” could not be qualified unless the advertisers could show that it was a moderate restriction.

Avonline stated that only 2.1% of their customer base had their speeds reduced and this was only when they had exceeded the data threshold of 60GB. However, the ASA concluded that the average consumer would not expect a service advertised as “unlimited” to impose a fair access policy whereby consumers affected by this traffic management would only achieve 50% of the average speed of those unaffected during peak network hours. Consequently, this restriction was held not to be sufficiently moderate and the ad was held to be misleading.

Making “unlimited” claims and speed claims in the telecommunications sector is a topical issue. The ASA has published guidance on using the word “unlimited” in telecommunications advertising and making speed claims in broadband advertising.