ASA Adjudications Snapshot – June 2014

ADJUDICATIONS

FINANCIAL

1. TSB Bank plc t/a TSB, 11 June 14 (references to “local” banking in a TV ad were held not to be misleading as it was considered that the average person would understand that this did not mean lending services would be decided locally)

FOOD AND DRINK

2. Heineken UK Ltd, 4 June 2014 (a TV and press ad for Kronenbourg lager were held not to be misleading for suggesting that the brewing and manufacturing process took place in France as they contained small print clarifying that the lager was brewed in the UK, in a decision which overturned a previous upheld adjudication)

3. Box Television Ltd t/a Box TV, 25 June 2014 (alcohol ads appearing on music video channels were held to be shown in and around programmes likely to appeal to under-18s despite a post 9pm restriction)

HEALTH AND BEAUTY

4. CN Creative Ltd t/a Vype, 11 June 2014 (an ad promoting an e-cigarette brand was held not to promote or glamorise nicotine but was found to misrepresent itself as a smoking cessation aid)

5. Fdd International Ltd, 11 June 2014 (an ad promoting a tooth whitening product was found to exaggerate its effectiveness)

6. Pharmacare (Europe) Ltd t/a Bioglan, 11 June 2014 (an ad promoting chia and flax seeds was held to include several unauthorised comparative nutrition claims)

LEISURE

7. MyCityDeal Ltd t/a Groupon, 11 June 2014 (a Groupon promotion for a Google Nexus Smartphone was held to be misleading because it did not clearly communicate that the original price and savings claims were based on the average of five selected retailers)

8. InterContinental Hotels Group plc t/a Holiday Inn Express, 18 June 2014 (claims that guests would receive free breakfast when booking an overnight stay were held to be misleading)

9. Activision Blizzard UK Ltd, 25 June 2014 (a TV ad for a computer game was held not to be offensive for trivialising warfare nor was it held to be inappropriately scheduled despite being broadcast around Remembrance Day)

MOTORING

10. Jaguar Land Rover Ltd, 18 June 2014 (two TV ads for the Jaguar F-TYPE were held not to encourage speeding and dangerous driving as the car was driven within the speed limit throughout the ads and there was no suggestion of aggression or recklessness in the ads)

OTHER

11. Outbrain Inc, 18 June 2014 (small adverts seen along the bottom of related news pages were held not to be clearly identifiable as external advertised content)

12. Cycling Scotland, 25 June 2014 (an ad promoting safe cycling was held not to be irresponsible for portraying cyclists without helmets)

RETAIL

13. Parlux Ltd t/a ROGUE by Rihanna, 4 June 2014 (a poster for the perfume ‘ROGUE’ by Rihanna was held to feature a sexualised and provocative image)

TELECOMMUNICATIONS

14. JDI Backup Ltd t/a JustCloud.com, 18 June 2014 (an ad for an online cloud storage site was held to be misleading for including the absolute claim ‘Unlimited Cloud Storage’)

FINANCIAL

1. TSB Bank plc t/a TSB, 11 June 14

A TV ad began with a cartoon woman shown carrying a cashbox to a TSB branch. A cartoon couple was then shown shaking hands with a branch employee before viewing a house. A tradesman was then seen going to a bike shop which was being run by the woman who appeared at the beginning of the ad. A map of Britain then appeared followed by on-screen text which read “TSB Local Banking for Britain”.

A voice-over in the ad stated, “TSB isn’t like other big banks. That’s because every penny TSB customers deposit stays right here in Britain, supporting loans or mortgages for other TSB customers…when those people spend money in their local economy it makes more work for the people who live there…”

Complaints / Decisions

Move Your Money UK, as well as another complainant, challenged whether:

1. references to “local” were misleading as it suggested that lending decisions would be made locally and money would be lent locally; and

2. the claim “every penny TSB customers deposit stays right here in Britain, supporting loans or mortgages for other TSB customers” was misleading as it did not accurately reflect how the banking system worked and that in actual fact TSB created new money supply.

Neither of the complaints was upheld.

1. The ASA considered that the average consumer would understand references to “local” to relate to the money lent being spent locally rather than that lending decisions would be made locally. The ASA was also of the opinion that the statement “TSB Local Banking for Britain” would be seen as puffery.

2. The ASA held that the claim “every penny TSB customers deposit stays right here in Britain, supporting loans or mortgages for other TSB customers” implied that TSB was not an investment bank and therefore did not engage in overseas speculation. As a result, customers’ deposits would be used to support lending nationally. In addition, the ASA acknowledged that TSB only provided services to individuals and small businesses and therefore concluded that it was not misleading to say that deposits would be used to support loans and mortgages.

The ASA took a pragmatic approach in this adjudication. Although TSB used the tagline “Local Banking for Britain”, it did not elaborate on exactly what services would be carried out at a local level and the ASA concluded that it was clear that the statement was puffery and was not intended to describe a specific characteristic of the service being offered. Although advertisers may often seek to rely on claims made in ads as being purely advertising puff – this can be a difficult line to draw and this argument often fails to succeed.

FOOD AND DRINK

2. Heineken UK Ltd, 4 June 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.

Although the ASA upheld both complaints in its adjudication dated 12 February 2014, it has reviewed its decision. In our comment on the February adjudication , we mentioned that this decision was being considered by the Independent Reviewer, as Heineken had believed there were “significant flaws” with the decision. Now, following that review, neither of the complaints has been upheld.

1. The ASA considered that the product was presented in a French context; it was described in the ad as a “French beer” and the Strisselspalt hop used in the product was grown in France. The product was also originally produced in France and the French company still oversees its production. The ASA therefore held that it was possible to describe the product as “French” as long as it clarified on what basis. The ASA concluded that the text in the ad made clear that the French aspect of the ad was focused on the source of an ingredient of the beer rather than the location of production of the beer. The small print “Brewed in the UK” was supportive of this.

2. The ASA considered that the voice-over referring to the Alsace farmers as “the men that grow the noble hops that make Kronenbourg the taste supreme” suggested that the distinctive taste of the beer was due to hops sourced from Alsace, France. However it did not claim that all hops contained in the product were sourced from France. In addition, the ASA noted that Heineken Ltd provided evidence demonstrating that the Strisselspalt hop was sourced from France, and so the ASA ruled that the ad was not misleading.

It is quite rare for the ASA to overturn a decision. In 2013 the Independent Reviewer received 64 review cases in total, of which just five decisions were reversed. In its February adjudication, the ASA’s decision focused on how the ad overstated the beer’s connection with France, as normally the ASA takes a strict line with heritage issues. However, in this review, the ASA was eventually persuaded that the French aspect of the ad was focused on the ingredient in the beer rather than the beer itself, and Heineken were able to satisfy the ASA that the ingredients did indeed come from France.

3. Box Television Ltd t/a Box TV, 25 June 2014

The ASA received research from Ofcom suggesting that alcohol ads on music video channels were being placed during and around programmes targeted at or likely to appeal to audiences below the age of 18. To measure audience demographic, the BCAP Code recommends the use of audience indexing, a tool which indicates the representation of children in relation to the audience as a whole. It is recommended that an alcohol ad restriction should be applied on programmes where 10-15 year olds indexed against the total audience produces an index of over 120 or more.

Complaints / Decisions

The ASA challenged whether the scheduling of 576 alcohol ads that were broadcast after 9pm on the following Box TV music channels between February and April 2013 were appropriate because data indicated that many were likely to appeal to audiences under 18:

1. 126 ads on 4Music, a channel with the tagline “brings you closer to the hottest artists right now”;

2. 22 ads on Heat, which describes itself as the channel that “brings you the best in entertainment and celebrity news”;

3. 138 ads on Kerrang, the music channel for “the world’s biggest selling rock magazine”;

4. 93 ads on Kiss TV, a channel with the tagline “the beat of the UK on TV”;

5. 43 ads on Magic TV, a music channel described as offering “feel good favourites twenty four hours a day”;

6. 69 ads on Smash Hits, the music channel for “hits now and always”; and

7. 85 ads on The Box, described as providing “fresh music first”.

The ASA found that the scheduling of 268 ads breached the BCAP Code.

The ads on these channels were sold and scheduled by a third party company. The third party company explained that, due to extremely low viewing figures, even a small increase in the number of under-18s watching could lead to programmes exceeding the 120 index threshold. The third party company therefore considered that using small audience figures to determine whether a programme was of particular appeal to under-18s was unreliable.

In order to comply with the spirit and intention of the BCAP Code, the third party company considered it sufficient to restrict alcohol ads to after 9pm as programmes scheduled after this time were likely to be more adult in nature and therefore unsuitable for children.

The third party provided a table showing the audience index levels for each channel by clock hour in 2012 and the first half of 2013. The ASA noted that for the majority of the channels, the audience index was around or exceeded the 120 threshold between 9pm and 9.59pm, but that from 10 onwards, the index was generally below 120.

Although the ASA acknowledged that low audience figures could lead to unreliability in relation to the audience index tool, it considered that, because data was available for all of 2012 and half of 2013, the results would be sufficient to determine whether the ads were being scheduled during programmes which appealed to under-18s.

The ASA upheld in part the complaints in relation to all the channels except for Magic. The ASA considered that the third party company was right to use a time slot based restriction to comply with the spirit and the intention of the BCAP Code. However, it also considered that the data provided demonstrated that the 9pm restriction was not sufficient to minimise the risk of alcohol ads being broadcast in programmes that appealed to under-18s. The ASA acknowledged that the number of viewers under 18 did decrease after 9pm but noted that it did not decrease significantly and therefore the likelihood of under-18s seeing alcohol ads was not considerably reduced.

The ASA emphasised the responsibility of advertisers to take a cautionary approach. It considered that the persisting level of under-18s in the audience up to 10pm combined with the fact that programme content between 9-9.59pm could be of interest to under-18s warranted a more risk-averse restriction.

Taking into account the audience index figures provided and based on the spirit and the intention of the BCAP Code, the ASA concluded that an after 10pm restriction on alcohol ads would have been more appropriate for 4Music, The Box, Smash Hits and Heat and an after 11pm restriction would have been more appropriate for Kerrang and Kiss.

In relation to Magic, the ASA noted that the evidence showed that the audience index stayed below 120 in all of the weeks for which data was provided. The ASA therefore considered that an after 9pm restriction was sufficient and did not uphold the complaint.

Although some of the audience indexing figures indicated that there was a decrease in the under-18 audience after 9pm, the key here was that the decreased was not significant. Even in cases where the indexing figure was below 120, it was only just so and therefore a considerable number of under-18s were still exposed to the ads. In December 2013, the ASA issued a guidance note on scheduling and audience indexing with the aim of preventing children from being exposed to alcohol ads.

HEALTH AND BEAUTY

4. CN Creative Ltd t/a Vype, 11 June 2014

A TV ad showed a young man and woman running through city streets at night, to an energetic soundtrack. On-screen text stated "Contains nicotine. 18+ only. Read leaflet in pack." The advert continued to show the man and woman in a state of excitement whilst a voice-over stated “Pure satisfaction for vapers. Vype, e-cigarettes. Experience the breakthrough”. A black case featuring the text "vype ... reload" was then shown against a black background, above the text "EXPERIENCE THE BREAKTHROUGH”.

A poster featured a young woman in mid-air with a smoke barrier behind her. Prominent text stated "vype e-cigarettes ... EXPERIENCE THE BREAKTHROUGH ... No tobacco. No smoke. Just pure satisfaction for smokers".

Complaints / Decisions

The ASA received 15 complaints. The complainants challenged whether the TV ad was offensive, irresponsible and potentially harmful for:

1. promoting the use of e-cigarettes, which contained nicotine, and glamorising e-cigarettes and smoking;

2. being likely to appeal to young viewers and normalising the use of e-cigarettes and smoking within that peer group; and,

3. being irresponsible for glamorising nicotine, an addictive substance.

The ASA also challenged whether;

4. The TV ad was misleading for implying that the product could be used as a smoking cessation device; and

5. The poster was misleading for implying that the product could be used as a smoking cessation device.

The ASA upheld the fifth complaint but did not uphold any of the other complaints.

1. Not upheld. The ASA acknowledged Vype’s view that the aim of the ad was to be atmospheric and dramatic, which was supported by the soundtrack, and that the presentation was abstract and highly stylised. The ASA considered that the actors did not behave in such a way as to appear glamorous and therefore did not endorse the product as something to be desired, nor were they seen to be using the product.

2. Not upheld. Although viewers were likely to realise that the smoke the characters passed through was tobacco smoke, the ASA was of the opinion that it was unlikely to be seen as a positive reference to either cigarettes or smoking. The ASA also noted that the actors’ behaviour as well as the ambience created in the ad was tailored to an adult audience and that scheduling restrictions applied, ensuring that the ad was not shown before 9pm.

3. Not upheld. The ASA considered that, although the actors appeared youthful and full of energy, the product itself was not seen being used, so it would be difficult to establish a strong link between energy and the use of the product itself. Further, the ASA was of the opinion that the abstract nature of the ad represented the advertiser’s intention to distinguish their product from competitors. The text "Just pure satisfaction for smokers" indicated that the product was intended for those who already smoked cigarettes, and who were therefore aware of the nature of nicotine and that smoking itself was not being endorsed.

4. Not upheld. The ASA acknowledged Vype’s assertion that the product was not intended to be a smoking cessation aid, but rather an alternative for tobacco smokers and other e-brand cigarette users. The ASA also took into account that the product was not licensed by the Medicines and Healthcare Products Regulatory Agency as a smoking cessation tool.

Despite using the tagline “Experience the breakthrough”, which could imply smokers moving away from tobacco and choosing an e-cigarette as an alternative, the ASA noted that no reference was made to tobacco, smoking, stopping or quitting smoking. The ASA concluded that the line “Pure satisfaction for vapers” added to the impression that the product was targeted towards e-cigarette users who wanted a different “vaping” experience to that offered by competitor brands.

5. Upheld. As the poster included the text “No tobacco. No smoke. Just pure satisfaction for smokers”, the ASA considered that the ad suggested that the product was intended to appeal to smokers. The ASA further considered that “Experience the breakthrough” was likely to be interpreted as meaning that smokers could achieve satisfaction from this product in place of normal cigarettes, as a substitute for tobacco. The ASA therefore concluded that the product was likely to be interpreted as a smoking cessation aid.

This appears to be quite a lenient approach from the ASA, especially given the number of complaints. There have been many adjudications recently in relation to e-cigarettes being advertised as a healthier option to normal cigarettes or as a smoking cessation device and this is an area which the ASA has as a particular focus, particularly since a number of e-cigarette ads were considered in September 2013. However, this adjudication follows a similar approach to that taken by the ASA with the same advertiser in January 2014.

5. Fdd International Ltd, 11 June 2014

A TV and YouTube ad promoting a teeth whitening product featured a close-up of a woman smiling. The voice-over stated, "iWhite teeth whitening kit. Instant results in up to eight shades whiter, and clinically proven safe and effective." Large text at the top of the screen stated "INSTANT results*" and "Up to 8 shades whiter". Small text at the bottom of the screen stated "*Instant results, up to 8 shades whiter after 1 application of 20 minutes".

Complaint / Decision

Colgate-Palmolive UK Ltd challenged whether the whitening claims in the ads were misleading and could be substantiated as they believed that the ad exaggerated the product’s efficacy.

The ASA upheld the complaint. A study commissioned by Fdd stated that 68% of participants were recorded as having achieved a shade improvement after one application of iWhite Instant for 20 minutes (the recommended application time) which they described as significant. Fdd argued that the claims that use of the product could result in teeth "up to eight shades whiter" were supported by the fact that two out of the 25 participants in the study were recorded as having achieved a result of eight shades whiter after one application.

Nevertheless, the ASA were concerned by the lack of any peer review on the study (due to it not being published, in particular as to what level of shade improvement would be classed as a clinically significant result. The ASA considered that consumers were likely to understand claims of the product being "clinically proven ... effective", to be based on data that demonstrated a clinically (and statistically) significant effect. The ASA further considered that it might have been beneficial for the study also to contain feedback from participants recording whether they had noticed an improvement in their tooth colour and, if so, to what extent.

The ASA noted that the ad claimed that the teeth could become "up to eight shades whiter" through one 20-minute application of the product. Given that only 2 out of 25 participants were recorded as having achieved this result, the ASA considered that this was insufficient to substantiate the “up to” claim.

The ASA also noted that the ad contained an image of a woman whose teeth got whiter as a marker slid from one end of a scale to another to demonstrate the gradual teeth whitening process. As the scale showed eight shades of white, the ASA considered that it would be linked to the “up to eight shades whiter” claim. As the ASA already held that the claim was misleading, it concluded that the use of the eight-shade scale exaggerated the extent of change possible from using the product.

The ASA’s decision is probably unsurprising here, given that only 2 out of 25 participants achieved the result asserted. The ASA in “up to” pricing claims generally expects at least 10% to have the benefit of the maximum level, so, if one were to apply the same approach here, the level here comes just below that, at 8%, which the ASA clearly regarded as insufficient.

6. Pharmacare (Europe) Ltd t/a Bioglan, 11 June 2014

A TV ad for chia and flax seeds featured Matt Dawson who claimed, “Have you discovered the power of a Bioglan superfood that you can add to your diet every day?” A voice-over then commented, “Just add Bioglan superfood chia and flax seed to your breakfast to get: as much protein as a small egg: more calcium than 100ml of milk; as much fibre as a cup of oats, and a high source of the Omega 3 fatty acid, ALA.”

Smaller on-screen text read, “Based on a 25g serving. Calcium helps maintain normal bones. 2g/day of ALA contributes to the maintenance of normal blood cholesterol levels.” Matt Dawson continued, “The pure goodness of a Bioglan superfood is a great addition to a healthy diet…”

Complaints / Decisions

The complainant challenged whether:

1. the claim “superfood” was a general health claim which was not accompanied by a specific authorised health claim on the EU Register of Nutrition and Health Claims as required by the EU Regulation on Nutrition and Health Claims.

The complainant also challenged whether the following comparative nutrition claims complied with the EU Register:

2. “as much protein as a small egg”;

3. “more calcium than 100ml of milk”;

4. “as much fibre as a cup of oats”.

The ASA upheld all four complaints.

1. The ASA considered that “superfood” was a general health claim because it related to a general, non-specific benefit of the food for overall health and it therefore needed to be accompanied by a specific authorised health claim. Although the ASA acknowledged that valid authorised health claims were included in the ad (i.e. that calcium helps maintain normal bones and 2g a day of ALA contributes to the maintenance of normal blood cholesterol levels), it concluded that these were presented in such a way that it was not clear that they accompanied the “superfood” general health claim. The ASA held that the emphasis of the comparative nutrition claims in the ad suggested that they, rather than the authorised health claims, supported the “superfood” general health claim.

2-4. The ASA noted that comparative nutrition claims must compare the nutrients in the advertised product to a range of foods in the same category. Bioglan used the definition “breakfast foods” as its food category in order to make the comparison relying on the fact that no definition of “food category” was available. However the ASA was of the opinion that “breakfast foods” related to an occasion on which the foods were consumed rather than a specific food category and that in this case the specific food category was seeds. The ASA therefore concluded that Bioglan should have used other seeds as the basis of its comparison and so held that the claims did not comply with the EU Register.

Advertisers always need to be cautious when making any health or nutrition claims which are likely to be covered by the EU Regulation on Nutrition and Health Claims. As demonstrated by this decision, the scope of such claims is narrow, and will always be interpreted narrowly by the ASA. Advertisers should therefore be careful when considering, not only the wording used, but also how the claims are presented in the ad and what could appropriately be defined as the correct food category.

LEISURE

7. MyCityDeal Ltd t/a Groupon, 11 June 2014

A promotion appeared on the Groupon website in the form “Google Nexus 5 Quad Core 4G Smartphone for £285 With Free Delivery (27% off)”. The ad was qualified with small print claiming that the offer was based on online selling prices checked on 4 February 2014.

Complaint / Decision

The complainant challenged whether the savings claim was misleading and could be substantiated.

The ASA upheld the complaint. The claim in question was based on the average price at which it was sold by five specific online retailers. Although the ASA considered that using an average sale price from a range of competitors was an acceptable basis for a claim, the ASA noted that, in this particular circumstance, the basis of the comparison was not clearly communicated to consumers as it mentioned that the prices were checked “online”.

In addition, evidence submitted by Groupon did not show that those retailers included in the calculation of the average fairly represented the market. The ASA concluded that, without this information, it was not possible to determine whether or not the alleged saving was genuine, and therefore the claim was held to be misleading.

When making savings claims, advertisers should ensure that sufficient detail is provided to qualify such claims. In this instance, the complaint may not have been upheld had Groupon provided more detailed information on the information used to qualify the claim rather than merely stating that it was based on “online selling prices”.

Although the ASA upheld the complaint against Groupon on this occasion, after a rocky ride in its early years, including a reference by the ASA to the OFT in December 2011, there have been fewer adjudications involving Groupon in the last couple of years, with fewer “upheld” adjudications, demonstrating greater care taken with the claims being made.

8. InterContinental Hotels Group plc t/a Holiday Inn Express, 18 June 2014

A TV ad for the Holiday Inn Express featured scenes of a family having breakfast. A voice-over described the different ways in which people eat a cooked breakfast and continued, “…What they all agree on, however, is they love them when they are free. That’s why, after a comfy night’s sleep, we give you a free breakfast.”

An ad on the reservations page of the InterContinental Hotels Group website included text which read “SMILE. Free breakfast for every guest.” The offers page of the same website also included an ad with text stating, “Free Breakfast…At Holiday Inn Express, your breakfast is Free, so you can relax and enjoy it.”

Complaint / Decision

Three complainants challenged whether the free breakfast claims were misleading because they understood that the price of breakfast was included in the overall price of an overnight stay in the advertiser’s hotels.

The ASA upheld the complaint. InterContinental Hotels Group highlighted that including breakfast in an overnight stay had not increased the room rates and that no cost of the breakfast had been recovered by reducing the quality of the hotel room. However, the ASA took into account that it was not possible for guests to book an overnight which did not include breakfast nor was it possible to determine the price of breakfast on its own. As guests did not have a choice over the number of elements in their stay that they were paying for, the ASA considered the overnight stay and breakfast to be a package.

The ASA also noted that the advertiser’s policy was to provide guests with breakfast without increasing room rates so guests would have breakfast included regardless of whether they chose to. The ASA therefore concluded that providing breakfast was not an additional benefit that had recently been added without extra charge to the price of the overnight stay and so describing it as free would be misleading. This is despite the advertiser claiming that the claim was used by its competitors in a similar fashion.

Making “free” claims can be quite difficult generally, but will be a particular issue in the hotel industry, where it is quite common for breakfast to be included in the rate offered and, as the advertiser pointed out, other facilities such as free wifi to be included. There is a distinction to be drawn between a genuine “free” offer and an inclusive price. Care must therefore always be taken in wording these claims.

9. Activision Blizzard UK Ltd, 25 June 2014

A TV ad for computer game Call of Duty: Ghosts, played Frank Sinatra singing “I’m Gonna Live until I Die” in the background and featured four men engaged in a series of gunfights and explosions in various different settings. At the end of the ad, on-screen text stated "There's a soldier in all of us".

Complaints / Decisions

1. Thirteen viewers challenged whether the ad was offensive and irresponsible for trivialising warfare and condoning and encouraging violence and gun use.

2. Six viewers challenged whether the ad was inappropriately scheduled for appearing around Remembrance Day.

3. Seven viewers challenged whether the ad was inappropriately scheduled at times when children might have been watching.

The ASA upheld none of the complaints.

1. The ASA considered that it was clear that the main characters were participants in the game rather than actual soldiers in a battle scenario. Further, because the scenes were exaggerated, far-fetched and included light-hearted elements, the ASA was of the impression that the overall depiction of the gunfight was not so violent. Moreover, the ASA concluded that the inclusion of the Frank Sinatra song along with the on-screen text would be interpreted by viewers as relating to involvement in the computer game rather than trivialising warfare.

2. Although the ad was shown around the Remembrance Day weekend, the ASA acknowledged that Channel 4 had purposely ensured that it was not broadcast around programmes dedicated to war and warfare. In addition, the ASA considered that the ad would be interpreted to be about game-play and not war itself, and therefore its scheduling over the Remembrance Day weekend was unlikely to cause serious or widespread offence.

3. As the computer game had age 16 certification, Clearcast placed a restriction on the ad to ensure that it would not be broadcast around programmes targeted at children. The ASA concluded that this restriction was sufficient in keeping the ad away from children.

The ASA has taken a consistent approach in not upholding complaints in relation to computer games depicting video games and can take a robust view, particularly where there has been careful targeting of ads. Similar complaints were made over the ad for an Electronic Arts advert for the computer game Battlefield 4 in March and they were not upheld on similar grounds.

MOTORING

10. Jaguar Land Rover Ltd, 18 June 2014 (also 25 June 2014)

A couple of TV ads began with the noise of an engine being revved. A car was shown driving through a dark tunnel, driving along a winding road, continuing over a bridge and along a coastal road. The roads in the ad were lined with pedestrians. The car then continued down an empty public road in a city lined with people. The driver got out of the car and said “Your turn” and then gave the keys to a pedestrian who was the first in a long line of people waiting to drive the car. At the end of the ad, the car was seen driving off and a voice-over said “Your turn”. On-screen text stated, “YOUR TURN…JAGUAR HOW ALIVE ARE YOU”.

Complaint / Decision

Two complainants challenged whether the ads were irresponsible for glorifying speed and encouraging dangerous driving.

The ASA did not uphold the complaint. Jaguar provided evidence to demonstrate that the car was being driven within the requisite speed limits throughout the ad. The ASA acknowledged this and also noted that there was no suggestion of aggression or racing within the ads nor was the engine noise sufficiently prominent so as to emphasise acceleration in the ads.

Jaguar argued that the queue of people waiting to test drive the car added a fantastical element to the ad and that they were seen standing away from the road far from any danger. The ASA agreed and considered that the fantastical element made clear to viewers that the ads did not portray reality and therefore did not encourage motorists to drive with a lack of care for pedestrians.

Although the ASA did not uphold this complaint, by contrast, it did uphold another adjudication against Jaguar this month (25 June 2014). That adjudication concerned four video ads on the Jaguar website where the cars were shown being driven at very high speed. The ASA concluded that the ads depicted that cars as being driven at high speeds and that the emphasis on speed was further heightened by the inclusion of high tempo music, the sound of engines being revved and the use of blurred lines following the cars in the ads. The cars in the ad were shown being driven in a dangerous manner, for example, crossing over the single white lines in the middle of the road. Although the cars were shown on empty roads with no other road users or pedestrians, they appeared in the ad to be public roads and being driven in a manner that would be irresponsible and illegal on a public road in the UK. The ASA therefore considered that the cars were being handled in a dangerous manner that might encourage motorists to drive irresponsibly.

In this type of ad, relying on a fantastical element will always have a degree of risk, although, taken with the other elements, succeeded in the first ad. Crucially, in the first ad, Jaguar was able to demonstrate the car was being driven lawfully, by contrast with the situation in the second adjudication.

OTHER

11. Outbrain Inc, 18 June 2014

An ad appeared at the bottom of an article on a newspaper’s website under the heading “You may also like these”. It was placed alongside other ads. A link below the ad was titled “(Keep Your Email Private!)”. The ad linked to a web page run by a third party advertiser.

Complaint / Decision

A complainant challenged whether it was sufficiently clear that the ad was identifiable as such.

The ASA upheld the complaint. Outbrain’s technology meant that they were able to understand how and when people consumed all forms of content and could therefore recommend relevant materials based on interests. They explained that they did not own the websites on which the recommended content appeared nor could they control the layout of the sites. Outbrain argued that this was “promoted content” as opposed to traditional advertising and that using wording such as “You may also like these” was industry practice. A pop up explaining Outbrain’s business model also appeared when users hovered over the link.

Despite this, the ASA considered that both the text “You may also like these” and “recommended by” as well as the information contained in the pop up did not sufficiently make clear to consumers that the ad was a marketing communication. As the ad was not clearly identifiable as a marketing communication, the ASA concluded that it was misleading.

We commented in more detail on this adjudication and guidance issued by CAP on 24 June 2014. With this adjudication, the ASA has clearly signalled that native advertising must comply with the CAP Codes, and that this type of blurring between editorial and advertising is unacceptable

12. Cycling Scotland, 25 June 2014

A TV ad promoting safer cycling on the road featured a voice-over saying, “…you should treat a cyclist the way you treat a horse…slow down, treat them with care and give them their space on the road.” At the end, a young woman was shown cycling down the road and text appeared on-screen stating, “SEE CYCLIST THINK HORSE”.

Complaint / Decision

Five complainants challenged whether the ad was irresponsible as the cyclist shown was not wearing a helmet or any safety attire and she was shown cycling down the middle of the road rather than one metre from the curb.

The ASA did not uphold the complaint. The ASA noted that it was not a legal requirement in Scotland for cyclists to wear helmets. Referring to various scenes in the ad, the ASA also commented that cyclists were shown with and without helmets, and considered that this reflected an individual’s preference. In relation to the cyclist being shown in the middle of the road, the ASA was of the opinion that the ad was focusing on care and safety in the form of giving space to cyclists on the road, and was communicating a positive message in that respect. Furthermore, it considered that the ad depicted a realistic situation in that motorists were likely to encounter cyclists both with and without helmets and should treat them with the same amount of care. The ASA therefore concluded that the ad was not irresponsible.

Although at first glance the ASA’s decision seems somewhat surprising, a pragmatic approach has been taken. The ASA noted that in reality, drivers are likely to come across cyclists without helmets, especially as wearing a helmet is not a legal requirement. The ASA can take a very strict approach to safety issues, as demonstrated by an adjudication for Citroen from April 2011, featuring cyclists without helmets, where the ASA did not uphold the main part of the complaint, but was concerned at the impact of the ad on younger children, which might encourage younger children to emulate a behaviour prejudicial to their health and safety, thus justifying an 'ex kids' scheduling restriction, together with a somewhat surprising adjudication from 2008 involving three young women dancing while seated in the back of what appeared to be a moving vehicle, and not wearing seatbelts.

RETAIL

13. Parlux Ltd t/a ROGUE by Rihanna, 4 June 2014

A poster appeared on the doors of a lift in a shopping centre. In the image, Rihanna was sitting on the floor with her legs raised against a large perfume bottle. Text at the top stated “ROGUE by Rihanna”.

Complaints / Decisions

A complainant challenged whether the ad was offensive because;

1. it was overly sexual and demeaning to women; and

2. it featured a sexualised and provocative image considered inappropriate for children to see.

The ASA did not uphold the first complaint but upheld the second complaint.

1. Not upheld. Although Rihanna appeared to be naked in the poster and one of her buttocks could be seen, the ASA noted that she was mainly covered due to the way she was presented. The ASA also considered that the image was not sexual, and Rihanna was presented as exuding confidence rather than vulnerability. The ASA therefore concluded that the ad was unlikely to be demeaning.

2. Upheld. The ASA understood that the ad appeared in a number of places where it could be seen by children. The ASA was of the impression that the ad, although not overtly sexual, still presented Rihanna provocatively due to her pose and her raised legs. The fact that she appeared to be naked further supported this view. The ASA therefore concluded that the ad was sexually suggestive and should have had a placement restriction to prevent children from seeing it.

The ASA upheld this complaint on the basis that the ad was located in a place where children were likely to see it. Advertisers should be aware that even where ads are not considered to be offensive, they may still be considered to be inappropriate for children to view. This is the latest in a long line of ads, particularly perfume and clothing ads, featuring images which are considered overly sexual and provocative, and the need to avoid showing the ad where it might be seen by children. The number of adjudications has dropped considerably since the Bailey review in June 2011.

TELECOMMUNICATIONS

14. JDI Backup Ltd t/a JustCloud.com, 18 June 2014

The website www.justcloud.com promoted cloud storage, and several references were made on the website to unlimited storage. In an FAQ section it stated that a paid unlimited account was available to all but ‘business users’ who complied with the terms of service.

Complaint / Decision

A complainant, who had been told he was in breach of the fair use policy due to the amount he had been uploading, challenged whether the “unlimited” claim was misleading.

The ASA upheld the complaint. JDI argued that having a fair use policy was standard among companies that offered unlimited cloud storage services and that it was fair not to allow users to store an extremely large amount of files as this would be beyond normal use. Nevertheless, the ASA considered that describing the service as “unlimited” was an absolute claim and so would be understood to mean that users would be able to store as many files as they wished without any restrictions.

The ASA further noted that qualifications, which appeared on a pop-up on the website, stated that the service was for home users only and did not state that a restriction would apply if users exceeded a specified limit. The ASA concluded that, as the complainant had experienced a restriction on usage and was a home user, the text in the pop-up contradicted rather than qualified the “unlimited” claim.

Advertisers should be extremely cautious when making an “unlimited” claim as it is considered a very strong claim to make. The ASA’s strict approach has featured in a number of ASA adjudications previously, including in relation to a claim relating to data allowance by broadband provider Avonline in February 2014. The ASA generally considers that “unlimited” claims to be strong and absolute claims and that consumers are generally likely to expect that services, or features of services, described as “unlimited” to be subject only to moderate restrictions.