ASA Adjudications Snapshot – January 2015

ADJUDICATIONS

HEALTH AND BEAUTY

1. L'Oréal (UK) Ltd t/a Yves Saint Laurent, 21 January 2015 (two TV ads and a VOD ad were found not to breach the Code as they did not glamorise or trivialise drug use)

2. Howad Ltd t/a Incognito, 14 January 2015 (a website that offered insect repellent spray for sale was found to have made misleading and unsubstantiated superlative claims in respect of the efficacy of the product)

HOUSEHOLD [link this heading to the HOUSEHOLD heading below]

3. Homes Direct 365 Ltd, 28 January 2015 (descriptions of furniture on a website as “Antique French” were in breach of the Code as the furniture was new and not manufactured in France)

LEISURE [link this heading to the LEISURE heading below]

4. Geo24 UK Ltd, 28 January 2015 (a TV ad for a gambling game was found to be in breach of the Code as it implied participants would be playing a lottery)

5. Take That Ltd, 28 January 2015 (three issues relating to websites misleading consumers into believing they would be directed to official lottery websites were upheld)

6. Unibet (International) Ltd, 7 January 2015 (online ads were found to be breaching the Code by claiming bets were risk free though significant conditions applied)

7. Imperial Tobacco Ltd, 28 January 2015 (a magazine ad commenting on the legality of plain packaging was found not to breach the Code)

RETAIL [link this heading to the RETAIL heading below]

8. Rebecca Penny t/a Bridleworks, 28 January 2015 (an unfairly administered online competition was to be in breach of the Code)

9. dylanqueen.co.uk, 28 January 2015 (an ad for a ‘limited time only’ sale was found to be misleading as the savings were available for a longer period)

ALCOHOL [link this heading to the ALCOHOL heading below]

10. William Grant & Sons Ltd, 21 January 2015 (an ad implying that Advoccat was traditionally associated with the Christmas period was found not to be in breach of the Code)

HEALTH AND BEAUTY

1. L'Oréal (UK) Ltd t/a Yves Saint Laurent, 21 January 2015

The first TV ad featured a woman waking, reaching to the other side of the bed, and then searching the bedside table. She ran out of the building, through the streets and into a building where she turned to face a man who had come up behind her. She moved towards him as if to kiss him but instead reached behind him to grab the perfume bottle he was holding. She moved away and sprayed the perfume, Black Opium, on her throat, then slumped against a wall looking relieved. The second TV and VOD ads were a shorter version of this ad.

Complaint/Decision

Nine complaints were made against the TV ads and two complaints against the VOD ad. All of the complaints centred on the potential irresponsibility and offensive nature of the ads as the woman’s actions simulated, and therefore glamorised and trivialised, drug use and addiction. The complaints regarding the TV ads also questioned if they were suitable for children.

The ASA did not uphold the complaints. In responding to them, the advertiser explained that the ads’ imagery, as well as the overall creative including the song and filming techniques, related a passionate love story with no connection to drug use or addiction. The woman was attempting to find her lover who had stolen her perfume and the intention was to convey that the woman loved him but that she loved her perfume more. The advertiser argued that the use of a love song made this clear and the focus on the perfume in the conclusion of the ad reinforced the message that she was searching for the perfume as it formed an integral part of her identity. Further, the action of spraying the perfume on her neck, they argued, was common practice in perfume ads and that throughout the ad the woman was calm, clean, made-up and in control. Therefore they felt that she did not project the image of a drug addict.

Clearcast also responded that they had taken the name of the product, Black Opium, into account and the use of previous tag lines including “your addiction” demonstrated that this ad was in line with previous creatives which aimed to show the perfumes as extremely desirable and something that women would do anything to obtain. They also explained that the dark tone of the ad was intended to suggest that the perfume was less sophisticated and more avant-garde than others in the range.

The ASA considered the overall presentation, style and storyline of the ads and found them to be in line with fragrance ads, believing that consumers would likely interpret the ads in this context. These factors, as well as the lack of explicit reference to drug use in the ads, led the ASA to feel that viewers, including children, would understand that the woman was looking for her lover who had stolen her perfume and that she was relieved to recover it.

Though the OPIUM® brand has previously fallen foul of the Code in relation to connections with drug use, this ruling demonstrates the holistic approach taken by the ASA when determining if a breach has occurred. However, it also serves to remind advertisers that when ads include a subtle message or one which could easily be misconstrued, they must be aware of the potential offence they may cause.

2. Howad Ltd t/a Incognito, 14 January 2015

A website, www.lessmosquito.com, that offered insect repellent spray for sale, claimed: “There is no Stronger Insect Repellent Provides 100% protection against mosquitos. Works against all insects! Anywhere in the world. There is nothing stronger”. The ad featured a text box that included the text “Protects Against Mosquitos, Midges, Wasps, Bees, Flies, Sandflies, Horseflies, Ticks, Fleas, Gnats and many more”.

Complaint/Decision

The complainant challenged whether the following claims were misleading and could be substantiated:

1. “Provides 100% protection against mosquitos”

2. “Works against all insects! Anywhere in the world”

3. “There is nothing stronger”.

The ASA upheld all three complaints.

It considered that the claims would be interpreted by consumers as meaning that the product would provide 100% protection against mosquitos and that it could be used by consumers to protect them against all insects anywhere in the world.

The ASA considered that consumers would understand the claim “There is nothing stronger” to mean that the advertised product was the most effective insect repellent available.

The advertiser provided a number of studies and reports that considered the effectiveness of the advertised product in relation to various species of mosquito. However, the product had only been tested on a limited number of these species. Two of the studies were incomplete and the raw test data omitted. Three of the test reports did not make clear whether the tests related to the complete formulation of the advertised product. Further, one study had shown less than 100% protection after only one hour following application. On comparative testing, the advertiser had compared with three competitor products in one location only. The ASA concluded that the evidence provided was not adequate to substantiate the claims.

Although an unsurprising adjudication, this highlights that there would need to be very robust and detailed comparative evidence to substantiate the very extravagant claims made. Advertisers should be aware that the ASA will always take a strict stance regarding “100%” type claims and superlative claims.

HOUSEHOLD

3. Homes Direct 365 Ltd, 28 January 2015

The website www.homesdirect365.co.uk promoted a number of furniture products with the claim “Antique French”, for example “La Rochelle Antique French Bed”.

Complaint/Decision

The complaint challenged whether the claim was misleading as the furniture was recently manufactured outside of France.

The ASA upheld the complaint. Homes Direct 365 Ltd made reference to their terms and conditions in their response, which state that the items were antique reproductions copied from French antique designs. While the ASA did consider this, they felt that this information was material and could influence a consumer’s decision as to whether to purchase the products or not (reflecting the relevant test for misleading advertising found in the Consumer Protection from Unfair Trading Regulations). Therefore, the information should have appeared in a more prominent position.

The ASA also noted that information on each individual product page included text that consumers would likely understand to mean that the item was new and not manufactured in France. However, prior to navigating to those individual pages, consumers would mistakenly believe the items were antiques made in France, thus making the claim misleading.

Misleading “heritage” claims will generally fall foul of the codes. In this instance, it is likely that the addition of the word “style” would have made the claims acceptable as it would be clear that the goods were antique reproductions from French antique designs.

LEISURE

4. Geo24 UK Ltd, 28 January 2015

The TV ad showed a bright light over individuals followed by a shower of money onto them. The voice-over stated, “This Saturday night, millions of pounds will be landing all over Britain, in the all-new Geo Lotto.com game. Go to GeoLotto.com now, claim your lucky place for just £1, and be in with a chance of winning up to one million pounds! You can choose anywhere - from a famous landmark to your own home. Of course, if you don't claim your lucky place, you can't win diddly. GeoLotto.com. Millions of pounds are coming. Don't miss out". On-screen text stated “£1 MILLION JACKPOT” and small text stated "Terms and conditions apply. Players must be aged 18 or over. www.gambleaware.co.uk".

Complaint/Decision

The complaint questioned if the ad was misleading as the product was a gambling game, not a lottery as was implied by the ad.

The ASA upheld the complaint. Geo24 UK Ltd stated that the ad clearly represented the key features of the game, including the cost of play, the top prize that could be won, the way in which the prizes were distributed across a grid of squares on a map of Great Britain, the timing of the game and the condition that participants should be aged 18 years or over. They also pointed out the distinction that consumers must be 16 or over to participate in the national lottery. Geo24 UK Ltd drew attention to the inclusion of the Gamble Aware website link in the ad which they believed made it clear the product was a gambling game rather than a lottery. Clearcast also explained that the reference to a lottery in the title of the game reflected the random nature of the game and was not misleading about the game or how it was played.

The ASA considered the voice-over in conjunction with the word “lotto” in the title of the game, along with the visual image of lights and money showering onto people, likely to give consumers the impression that the ad was promoting a lottery. Further, the on-screen text of “£1 MILLION JACKPOT” contributed to this suggestion. The ASA considered these factors to be more prominent than the Gamble Aware website link and statement that “Players must be aged 18 or over ". They therefore concluded that the ad was misleading, as it implied participants would be playing a lottery rather than a gambling game.
This adjudication comes alongside several rulings on gambling/lottery related ads this month, notably those of Take That Ltd and Unibet (see below). They are indicative of the growing number of gambling related ads, as well as the strict interpretation the ASA takes when considering the transparency of such ads.

5. Take That Ltd, 28 January 2015

Three websites run by Take That Ltd promoted EuroMillions and UK national lotteries:

a. www.lottery.co.uk included a page entitled “EuroMillions Results” providing results to the previous four EuroMillions lottery draws. A hyperlink in the text of this page took consumers to www.euro-millions.com

b. www.sports.gamble.co.uk included a page entitled “EuroMillions Betting” which gave introductory information on the EuroMillions draw. Text on this page included a hyperlink to www.euro-millions.com

c. www.national-lottery.com included information on several lotteries and hyperlinks to the relevant official National Lottery web pages.

Complaint/Decision

WagerPod Ltd challenged whether the hyperlinks in both websites a. and b. were misleading as they implied consumers would be directed to the official EuroMillions web page. They also challenged if website c. misled consumers by implying it was the official UK National Lottery web page.

The ASA upheld the three complaints.

Take That Ltd responded to complaints regarding websites a. and b. by arguing that it was self-evident that a consumer clicking on either link would be trying to find results of EuroMillions draws, which the links provided. The results of the lottery, they argued, were objective information and therefore the consumer would find it immaterial which site provided them.

Take That Ltd further argued that given that 60% of visitors from website a. to www.euro-millions.com were returning visitors, consumers were clearly aware that they were not being directed to the official EuroMillions page. The ASA found that this was not sufficient to demonstrate that consumers clicking the link for the first time would expect to be directed to another affiliate website. The ASA noted that the hyperlink on website a. appeared on a page already providing results from the latest draw and therefore considered that consumers, in this context, would expect the hyperlink to lead them to the official EuroMillions website. By clicking on the link consumers were instead directed to a commercially-interested affiliate website that simply restated the results. The ASA felt that consumers might not have chosen to click the link had they been aware of this.

The ASA considered that the lack of explanation on the nature of the link on website b. would lead consumers to believe the link would direct them to the official EuroMillions site, which, had they known it was a commercially-interested affiliate site, they may not have chosen to click on. Because the ads on both websites did not make this connection clear, the ASA found that they were misleading.

Take That Ltd responded to the complaint over website c., arguing that the site provided information on several lotteries, some of which were not operated by Camelot, and therefore the average consumer would not mistake website c. for Camelot’s official website. They provided screenshots of both sites and referred to the lack of Camelot logos and footnote text sating that the site was affiliated with Camelot for marketing purposes only. The ASA considered that consumers would not necessarily be aware of the differences between the lotteries, especially if unfamiliar with the Camelot website or lotteries generally. They found that the repeated reference to “National lottery”, as well as the similarity in URLs between Take That Ltd’s www.national-lottery.com and Camelot’s www.national-lottery.co.uk, would likely mislead consumers. The footnote text, which could be easily overlooked by consumers, was thereby contradicted by the initial impression of the site. In addition, though consumers were able to follow links to the Camelot website, the ASA considered that had consumers known Take That Ltd received payment for directing them there, they may not have chosen to click the links. Thus the ad was found to be misleading.

This result is unsurprising given the recent focus the ASA has put on copycat websites, including the July 2014 publication of research findings of the public’s experience of such websites conducted by Ipsos MORI on the ASA’s behalf. While in this case they did not state that Take That Ltd’s websites were direct copycats, it is clear that the ASA is taking a strict approach toward misleading websites.

6. Unibet (International) Ltd, 7 January 2015

Three ads were subject to complaints:

a. Two sponsored posts on Facebook’s news feed including text stating “Join Unibet for a £20 Risk Free Bet on today’s game! … Open an account today and we will cover the risk of your first bet up to £20”

b. A sponsored Google search result including the ad “Unibet £20 Risk Free Bet” and webpage for a promotion on the betting website www.unibet.co.uk which repeated the phrase “£20 Risk Free Bet” and made reference to terms and conditions

Complaint/Decision

Three complaints were made on the basis that players were required to place further bets at specified odds in order to withdraw funds and if the bet was lost they received a refund of the stake in bonus rather than cash. These complaints questioned whether:

1. The claim “risk free bet” in the three ads was misleading

2. Ads a. and b. made significant conditions of the promotion sufficiently clear

3. Ad c. was misleading as it did not make clear that further bets must be placed at specified odds in order to access the refunded stake.

The ASA upheld all of the complaints

1&2: Unibet argued in response to the complaints that the term “risk free” was commonly used in the gambling industry for bonuses of this nature. Further, they explained that the intended meaning of “we will cover the risk” was to say that if a customer lost their first bet the stake would be returned for further turnover (i.e. if the player lost £20 with their first bet this £20 would be received as bonus funds). The ASA considered that most consumers would understand “risk free” to mean that they could place a first bet of £20 without the risk of loss, particularly as there were no qualifications on the ad regarding it being subject to terms and conditions. This, in conjunction with “we will cover the risk” would give most consumers the impression that the stake from their first bet would be refunded and could then be withdrawn as cash.

Unibet further argued that the nature of offer was explained in clear and comprehensible language in the bonus terms and conditions. They explained that the details of the turnover requirements were not included directly in the Facebook posts in accordance with common industry practices and due to limited space. However, Unibet argued, terms and conditions were always easily accessible to customers through a link to their registration page where the terms and conditions had to be accepted to receive the bonus and further information was given explaining the turnover requirements. The ASA noted that the possibility of losing the entire bonus funds during the turnover process, making the customer ineligible to make a cash withdrawal, as well as the requirement to wager the bonus money at specified odds until the customer won an amount equivalent to six times the value of the stake of the first bet, were likely to contradict consumers’ understanding of “risk free”, thus making the ads misleading.

In addition to the above points, the ASA considered the requirement to place further bets at specified odds using the bonus in order to withdraw the stake lost from the first bet to be a significant condition that was likely to affect consumers’ understanding of the nature of the offer. Unibet should have either made this condition clear in the ad or, as the ad was limited in space, indicated on the offer that it was subject to a significant condition and directed customers to it. As the full terms and conditions, including this significant requirement, were more than one click away from the ads the ASA found that Unibet had not presented material information about the offer clearly enough for customers to make an informed decision. The ads were therefore misleading.

3: Unibet explained in response to this complaint that the general terms and conditions were linked to the landing page in error instead of bonus terms and conditions. They amended the landing page accordingly and included text stating “Bonus T&C apply. Bonus must be wagered 6x before withdrawal.”

The ASA considered that the Google sponsored search result would be interpreted by consumers not to be subject to significant limitations and for the reasons set out above this was found to be misleading. Further, while the ASA noted the significantly limited space, they considered the text in the result could have made reference to the significant condition rather than stating “Great Odds & Live Betting”.

Further, the ASA noted that customers could only access this significant condition by clicking on the “BET NOW” button on the landing page and then the additional “bonus terms and conditions” link on the subsequent landing registration page. Thus the terms were three clicks away from the search result. The ASA believed that the significant condition should have been made clear in the search result itself or in the main body of the landing page and therefore the ad was misleading.

This adjudication, alongside the two above, highlights the strict rules surrounding the advertising of gambling or lottery practices. The ASA is particularly strict in cases such as this one where it requires terms and conditions or significant qualifications to be easily accessible by consumers.

7. Imperial Tobacco Ltd, 28 January 2015

An ad published in The House, a weekly publication for the Houses of Parliament, included a cartoon referencing the Government’s consultation on plain packaging of tobacco products as well as text stating “Plain packaging of tobacco products Illegal, unnecessary and damaging for UK business”.

Complaint/Decision

The complaint questioned if the ad was misleading as the government had yet to make a final decision on whether to introduce plain packaging of tobacco products, and therefore the legality was not yet determined.

The ASA did not uphold the complaint. Imperial Tobacco Ltd argued in response that the ad reflected their own opinion and that it was clearly a satirical illustration of their position on plain packaging. They explained that the phrase used in the ad was based on the title and contents of their response to the Department of Health’s consultation on the proposal to introduce such standardised packaging. In addition, they considered that the intended political readership would understand this within the context of the politically themed magazine and due to the proximity in timing to the submission of their response.

The ASA considered that the text in the context of the ad made it sufficiently clear that the claim was Imperial Tobacco Ltd’s opinion and did not represent a position established by judicial decisions on the legality of the proposed policy. Further, they felt that the intended audience of the magazine would be aware of the consultation and understand that the ad expressed an opinion based on Imperial Tobacco Ltd’s response. Therefore, the ASA did not find the ad to be misleading or in breach of the Code.

Plain packaging of tobacco products has become a particularly controversial issue. As more tobacco companies advertise their stance on the potential policy in the run up to the MP vote in March, the ASA will increasingly need to rule on the fine line between opinion and fact in advertising.

RETAIL

8. Rebecca Penny t/a Bridleworks, 28 January 2015

A promotion on the bridle retailer’s Facebook page stated “…All you need to do to be in with a chance of your horse or pony being the face of Bridleworks is upload a photo to the competition tab on our page and ask your Facebook friends to ‘Vote’ for your photo. The top 20 horses or ponies with the most ‘votes’ will go through to the second round, where the winner will be chosen by an independent panel of judges”.

Complaint/Decision

Five complaints were raised regarding two issues. Four complaints considered the lack of an announced winner, challenging whether the promotion was fairly administered. One complaint focused on the voting system, questioning if it had been clearly stated in the terms and conditions.

The ASA upheld the complaints. Rebecca Penny (t/a Bridleworks) explained that the competition was administered through an online third-party service that enabled them to change judging criteria. This change allowed participants to gain bonus points through sharing the post, inviting friends to “like” the link on the Facebook page and for friends who subsequently entered the competition. They also provided a link to the terms and conditions and explained that they had made clear when the competition had ended and the top 20 eligible finalists had been selected. They stated that a winner was selected by an independent panel of judges.

The ASA considered that people would take the phrase “the winner will be chosen by an independent panel of judges” to mean that the winner would be selected from the 20 participants receiving the most votes by a panel of independent people. Details on the panel of judges or evidence of a winner being selected or announced were not provided. In light of this, the ASA concluded that the promotion was not fairly administered and upheld the four complaints.

The ASA determined that the change in judging criteria allowing the award of additional points and the inactive status of Rebecca Penny (t/a Bridleworks)’s terms and conditions page demonstrated that the voting system had not been clearly stated in the terms and conditions from the outset of the competition. Therefore, the ASA considered that the promotion was not fairly administered and upheld the complaint regarding the second issue.

The ASA has had several cases in the past year focused on the fair administering of competitions, a number of which relating to promotions on Facebook, which is increasing being used by advertisers for promotions. The ASA generally seeks to emphasise that the competition terms and conditions must be as clear as possible. In this case, Rebecca Penny (t/a Bridleworks)’s lack of transparency over the change in the judging criteria and choice of winner left it in breach of the Code, demonstrating the importance of conducting a fair promotion from start to finish.

9. dylanqueen.co.uk, 28 January 2015

Claims on www.dylanqueen.co.uk stated “BUY ONE DRESS SAVE 6% OFF COUPON CODE: SAVE6 BUY TWO DRESSES SAVE 12% OFF COUPON CODE: SAVE12 BUY MORE DRESSES SAVE 17% OFF COUPON CODE: SAVE17 SHOP NOW”. A timer was depicted next to the text counting down the days, hours, minutes and seconds.

Complaint/Decision

The complainant challenged whether the website was misleading as it implied that the sale was for a limited time only.

The ASA upheld the complaint.

The ASA considered that consumers would interpret the saving claims alongside the timer to mean that the savings were for a limited time only. There was no evidence to show that the savings were only available during the limited period indicated by the timer and therefore the advert was misleading.

This advert was interesting, as it did not expressly refer to the savings being only for a limited period of time. Nevertheless, an advert showing timer and text countdowns clearly implies a sense of urgency and possible time restriction for the consumer which will encourage consumers to make swift, rather than considered purchases. The ASA will always be concerned that consumers’ behaviour will be unduly influenced where such indications are misleading.

ALCOHOL

10. William Grant & Sons Ltd, 21 January 2015

A bus stop poster promoted Warninks Advocaat with text stating: “Without WARNINKS ADVOCAAT it just wouldn’t be Christmas”.

Complaint/Decision

Alcohol Concern challenged whether the advert was irresponsible on the basis that it implied that drinking alcohol was a key component of the success of a social event.

William Grant &Sons Ltd said that the claim was not intended to suggest that drinking alcohol was a key component to the success of the Christmas period. There was a significant difference between referring to a link between a drink and a social event or occasion, and suggesting that drinking alcohol was key to the success of the event or occasion. They stated that they had used the line for a number of years without complaint, and had further submitted the advert to the CAP Copy Advice Team.

Clear Channel (the leading outdoor media owner) said the claim was a light-hearted reference to the product’s long-standing association with Christmas and that the product was not associated with excessive drinking.

The ASA did not uphold the complaint. It considered that “Christmas” was likely to be interpreted, as a reference to season, rather than a specific occasion and that consumers would interpret the claim “it just wouldn’t be Christmas” as suggesting that the product was traditionally associated with the Christmas period.

There was no excessive drinking, nor any suggestion that a party or specific social occasion would be a success as a result of drinking alcohol, or that the product played a major part in socialising. Consumers were unlikely to interpret the advert as implying that Christmas was a social event, the success of which would depend on drinking Advocaat.

Adverts regarding alcohol and the Christmas period are always likely to attract the attention of consumer bodies and the ASA due to raised awareness of over-consumption of alcohol leading to potentially irresponsible behaviour over this period. Advertisers should therefore always take care with the imagery used, particularly with regard to any images of social events and of people drinking alcohol.