ASA Adjudications Snapshot - November 2015

HOUSEHOLD

1. Fischer Future Heat UK Ltd, 11 November 2015

A table on Fischer’s website compared the energy use and performance of one of their products to two other storage heaters. Details were provided for each of the tests carried out by the respective manufacturers with a footnote stating “The 4 rooms were of different dimensions, different U values and subject to different temperature differentials therefore the direct comparisons is [sic] only a reflection of the running costs where a room is maintained at 21C using the various types of heaters”.

Complaint / Decision

A competitor, South West Heating Solutions, challenged whether the table comparing the products was misleading. The ASA upheld the complaint.

Fischer provided the test reports for the products mentioned in the comparison table. They noted that the purpose of the footnote was to explain the differences between the methodologies used for each of the heaters.

The ASA noted that the comparison table was shown on a webpage titled “Running Costs” which implied that Fischer’s product used a lower amount of energy thereby offering consumers a financial benefit. However, instead of data on running costs, the table provided theoretical figures apparently to help consumers compare the products. Under the Code, comparisons must compare products “meeting the same need or intended for the same purpose”. Comparisons must also “objectively compare one or more material, relevant, verifiable and representative feature” of the relevant products. Although the ASA considered that the compared products met the same need and that Fischer used publically available information to make the comparisons, there were issues surrounding the methodology of the three tests. For instance, even though the same independent third party was used to test Fischer’s and South West Heating Solution’s product, there were differences in the testing conditions. In particular, the tests were undertaken at different times of the year, in different years and for different durations. Some information for the third product had not been provided. Further, it did not appear that the industry standard test was used to measure the performance of the products even though the test reports for two of the products said that they did. The ASA also explained that the testing rooms used for each product were not likely to be representative of a typical room in the average UK home. In considering all these factors, the ASA found the comparison table to be misleading.

The outcome of this adjudication is not surprising considering the issues identified with the test results, but this is a useful reminder of the issues involved with comparative claims. Comparative claims may appear in various forms, whether through a direct claim that the advertiser is better than the competitor for a particualr reason or whether through a comparison between various products, as seen here. Regardless of how the comparison ad appears, advertisers must remember to have in hand adequate substantiation to support their claims. In particular, the same methodology should be used for comparative claims with the data clearly relating to the claim being made. In this case, Fischer should have ensured a consistent approach with the testing and should also have been able to show how testing in a laboratory was reflective of performance in the home. A final note for advertisers is to ensure that, when available, industry standard tests are used to test the product in question.

RETAIL

2. Boots UK Ltd, 11 November 2015

A poster on a London Underground train for Boots’ “COLD & FLU DEFENCE Nasal Spray” with text stating “clinically proven to defend against cold and flu”.

Complaint / Decision

The complainants challenged the efficacy of the product. The ASA upheld the complaint.

Boots explained that the product was an approved EU Class IIa medical device which was supported by technical, non-clinical and clinical data. They provided various studies from published peer-reviewed journals which indicated results from clinical trials involving adults and children.

The ASA took expert advice in considering this adjudication. The ASA did note that the product demonstrated it could possibly reduce the duration of symptoms of acute upper respiratory tract infections in some patients under certain circumstances. However, the ASA explained in detail why each study was not sufficiently robust to show that the nasal spray was clinically proven to treat and prevent the symptoms of a common cold and influenza types A and B. In particular, one of the studies did not have a large enough sample size, with a very low number of patients suffering from flu, whilst another relied on a retrospective analysis, which was considered to generate weaker evidence than a prospective clinical trial. Boots were also seeking to rely on an in vitro study, drawing an inference from the results to the likely effect in vivo. However, the ASA did not consider this sufficient without also having robust clinical trials to prove the efficacy of the nasal spray.

This was a very bold claim being made and it was to be expected that the ASA would seek robust substantiation for the full claim. Part of the difficulty for Boots was the very general reference to “colds and flu”, which meant they had to show substantiation for both the common cold and the two main types of influenza virus.

This adjudication serves as a useful reminder that full and relevant substantiation is necessary to demonstrate the efficacy of a claim, and the importance of having the right scientific support, including in vivo trials and peer-reviewed studies, where necessary.

3. Terra Plana International Ltd t/a Vivobarefoot, 18 November 2015

Vivobarefoot held a competition which invited entrants to design a t-shirt for a chance to win the opportunity of having their t-shirt sold by Vivobarefoot. The winner would also receive three pairs of shoes and a copy of the t-shirt. Shortlisted entries would receive one of the winning t-shirts and a pair of shoes.

Complaint/Decision

The complainant challenged whether the competition breached the Code as the closing date had been changed and the number of shortlisted entries had reduced from twenty to nine. The ASA upheld the complaint.

Vivobarefoot explained that the quality of entries was not to a sufficiently high standard (there was particular concern about their brand integrity) and so they extended the closing date to invite more entries. After reviewing the entries, they reduced the number of shortlisted entries as they only found nine to be appropriate to use. In particular, numerous entries did not explain how they were to be used. Vivobarefoot noted that by shortlisting these entries, they were likely to receive more complaints on the incorrect use or on statements incapable of substantiation.

The ASA referred to the Code rules on closing dates and explained that the terms and conditions of a competition were in the advertiser’s control. They explained that extending the closing date would disadvantage entrants as they would now be competing with a larger pool of entrants. The ASA also noted that reducing the number of shortlisted entries would lead to unnecessary disappointment on the part of entrants. The ASA considered Vivobarefoot to be in breach of the Code as the competition had not been administered fairly.

The ASA generally applies a strict approach when reviewing adjudications concerning closing dates for competitions. They expect advertisers to foresee problems which may arise and to take steps to correct any issues with their competitions prior to publication, and to draft the terms and conditions for the competition accordingly.

LEISURE

4. Britvic Soft Drinks Ltd, 18 November 2015

A video on Millie Mackintosh’s Instagram account, first showed an image of her with the caption “80s VOGUEING X YOGA”. The video contained similar scenes but ended with a scene containing the following text “J2O SPRITZ #BlendRecommends”. Text below stated “80s vogeuing [sic] x yoga @Houseofvoga. More of my #BlendRecommends with @drinkj2o Spritz to come! #sp”.

Complaint / Decision

The complainant challenged whether the ad was obviously identifiable as an ad. The ASA upheld the complaint.

Britvic explained that the ad was part of a series of commercial endorsement ads posted by Millie Mackintosh for the J2O brand. To make the marketing communication identifiable to viewers, the following terms and phrases were used in each of the posts “#sp”, “@drinkj2o Spritz” and “more of my #BlendRecommends with @drinkj2o to come”. They further noted that the campaign hashtag “#BlendRecommends” was featured prominently and centrally on the screen on the last frame of the video. Britvic also explained that when viewed on a mobile, the video would play in a continuous loop giving viewers more than one chance to see the last frame of the ad.

The ASA identified that marketing communications had to be obviously identifiable as such to viewers prior to them viewing it and before engaging. They noted that although the ad clearly identified the brand, it only did so at the end of the video. The ASA explained that although they understood the hashtag “#sp” to refer to a sponsored post, they considered it was unlikely to be immediately apparent to consumers. In any event, the ASA drew a distinction between sponsored content and content where the advertiser retained editorial control, so “#sp” was not an accurate label for the ad.

In considering “More of my #BlendRecommends with @drinkj2o Spritz to come!” the ASA considered that, although it indicated some relationship between Millie Mackintosh and the brand, and therefore that the brand may have been involved in the vlog, it was not enough to indicate to consumers that the post was a marketing communication as opposed to materials that had been financially sponsored but where the creator retained editorial control.

It is interesting to consider this adjudication in the light of the guidance on vlogging released by CAP in August. One of the key issues is always ensuring that the vlog is clearly identified as a marketing communication. As part of this, the guidance addresses the distinction between sponsorship and other marketing vlogs, sponsorship generally being where the brand has no control of the content, in which case it would be outside the ASA’s remit.

The guidance discusses the importance of labelling, referring to the fact that ASA has not yet ruled on what would be an appropriate label for vlogs, quoting “ad”, “ad feature”, “advertorial” or similar as being “very likely to be acceptable”. Quite apart from the issue as to whether this was correctly a “sponsored” vlog, where the labelling issue has arisen with promotions on Twitter, the ASA has always required a clear identifier for hashtags which identify a tweet as a marketing communication, and acceptable identifiers have generally been considered to be #ad or #spon, rather than just #sp.

The ASA has also made it clear that advertisers should always ensure that consumers are able to identify whether the ad is a marketing communication before they watch it. It is not enough to indicate this at the end of an ad, as the ad would have already been viewed and the consumer would already have been engaged.

Advertisers should also ensure that they have considered the way an ad appears on different platforms, and the need to ensure that any description boxes are properly visible. One option may be for advertisers to indicate in the title of an ad that it is a marketing communication. However, this is a particular issue on Instagram, and also generally when selecting a video from playlists, lists of related videos, lists of videos on a vlogger’s channel page, or emails alerting subscribers to new videos. The label needs to be visible regardless of the device used so including an appropriate label early in the title of the vlog or using an appropriate label in the thumbnail are likely to be ways of ensuring that viewers know that the vlog is an advertorial before engaging with it.

HOLIDAYS AND TRAVEL

5. Newmarket Promotions Ltd t/a Newmarket Holidays, 4 November 2015

A “BUY ONE GET ONE FREE*” promotion for a holiday, departing in October 2015, was distributed by way of a supplement in the regional press for Newmarket Holidays. The supplement contained small print which stated “*…Offer may be withdrawn at any time”.

Complaint / Decision

The complainant, who was informed that the offer was no longer available, challenged whether the “BUY ONE GET ONE FREE” claim was misleading. The ASA upheld the complaint.

Newmarket explained that whilst planning and running the promotion, they checked various factors such as sale levels, the departure date and the price. They further explained that if they reached the desired level of sales before the date they had initially planned to end the promotion, they would withdraw the promotion. Due to poor sales, the current promotion had been changed from ‘buy one get one half price’ to ‘buy one get one free’. They explained that the ‘buy one get one free’ promotion was then extended as they had not met their desired sales level and the promotion then reverted to ‘buy one get one half price’ once they considered they had reached a comfortable level of sales. Unfortunately, despite putting procedures in place to stop the further advertising of the ‘buy one get one free’ promotion, the supplement seen by the complainant had been finalised before they reverted back to the ‘buy one get one half price’ promotion, one day prior to circulation. However, Newmarket sought to rely on the disclaimer in the ad stating that the offer might be withdrawn at any time, which was highlighted to consumers who responded to the cancelled promotion and who were also informed of the ‘buy one get one half price’ promotion and other ‘buy one get one free’ promotions.

The ASA understood that the end dates for the promotion were only nominal as they were internal dates selected by Newmarket to indicate dates to achieve desired sales levels. However, the ASA made it clear that advertisers should always provide information about the likely demand and/or the limited availability of any promotion. The ASA concluded that Newmarket had been unable to demonstrate adequately that they had a made a reasonable estimate of the likely response to the promotion. The ASA considered the disclaimer but considered that it was not sufficient to avoid unnecessary disappointment on the part of the consumer. Newmarket should have amended the ad to reflect the latest availability to ensure that consumers had a realistic expectation of the chances of successfully participating in the promotion.

As seen in the Terra Plana adjudication above, this adjudication shows the need to consider the terms and operation of promotions very carefully. A key issue is to communicate information regarding promotions in a timely manner and to make the availability and demand of promotions clear in the ad. Also, this demonstrates that even where disclaimers are included, they may not allow an advertiser to avoid being found to be in breach of the Code.

MOTORING

6. BMW (UK) Ltd, 4 November 2015

A TV ad for a BMW 3 series showed the car being driven along a road through the countryside. As the car approached a coastline, a voice over stated “Curves invite you in” with the ad showing the driver changing gear and displaying an increase in the tachometer reading. The scene changed to a woman riding a rollercoaster accompanied by the following voice over, “curves help you escape”. Following another shot of the car, the scene changed to a cliff jump scene with a voice over stating “curves inspire you, and definitely dare you. And the new BMW 3 Series was made for every one of them.” The ad then reverted back to various shots of the car being driven along the road.

Complaint / Decision

The complainants challenged whether the ad breached the Code for condoning dangerous driving. The ASA upheld the complaint.

BMW explained that the purpose and tone of the ad, with reference to the voice-over “curves inspire you, and definitely dare you”, demonstrated driving as an enjoyable experience. They noted that the ad did not contain any references to aggressive or speedy driving. Clearcast also explained that the visuals and voice-overs were not representative of speeding but were associated with an enjoyable driving experience. They noted that the message of the ad was to dare drivers into taking a route they would not normally take, not for speed, but for comfort. They further explained that the rationale of the ad was to demonstrate that, unlike in an older car, the BMW 3 series would make driving on such roads less daunting due to the handling and safety features of the car. Clearcast did not consider the ad to encourage dangerous driving.

Although there were no explicit references to driving at speed in the ad, the ASA considered the use of fast-paced shots, along with shots of a gear change and a rapid increase of the tachometer reading, to give an impression that the car was being driven at speed. The ASA noted that the levels of exhilaration associated with the rollercoaster scene and the cliff jump scene, along with the voice-overs and fast paced shots of the car, depicted a similar level of exhilaration when driving the BMW 3 series as shown in the ad. They explained that “curves inspire you, and definitely dare you” implied that driving at speed around twisted corners would be a daring, exciting and challenging experience. They further noted that “the new BMW 3 Series was made for everyone of them” implied the driving experience would be maximised by the handling of the car. Moreover, the ad did not communicate the handling capability of the car in a clear context of safety and, instead, implicitly challenged viewers to drive at speed around corners. The ASA therefore concluded that the ad encouraged irresponsible and potentially dangerous driving.

This adjudication demonstrates that the way an ad is filmed and put together may imply a meaning that may not have been intended. Specifically, the use of fast pace shots implied the car was being driven at speed. Advertisers should be cautious when using metaphors in ads, as seen here with the rollercoaster and cliff jump scene, as the ASA may find them to imply something which is not explicitly stated in the ad. Particularly when advertising performance cars, or potentially dangerous activities, advertisers should take extra care to avoid being seen to encourage dangerous behaviour.

COMPUTERS AND TELECOMMUNICATIONS

7. Sky UK Ltd, 11 November 2015

A press ad and website page for Sky broadband and talk services claimed the following:

1. “Best customer service Sky Broadband and Talk Best for combined overall customer service, compared with … Virgin … Ofcom Report, Dec 2014”.
2. “Best combined overall customer service For Sky Broadband and Talk, compared with … Virgin Media … Talk. **… **Best combined overall customer service: adding together customer service satisfaction levels for broadband and landline service. Source: Ofcom Report, Dec 2014”.

Complaint / Decision

The complainant challenged whether the ads were misleading, including as to the substantiation for the claims relating to superior customer service, because they did not make clear the basis of the comparison, which the complainant understood to be flawed.

Sky explained that the Ofcom Customer Service Report measured overall customer service satisfaction for landline and broadband service and asked exactly the same question for both. Sky considered that although Virgin Media had scored higher for broadband services, when the scores for broadband and landline services were combined, Sky had a higher score. They considered that combining the scores was a customer-friendly and intuitive way of providing information which customers would be interesting in knowing.

The ASA however took the view that the nature of the comparison was not made sufficiently clear. Although Sky referred to a combination of services, it would not be clear for consumers whether Sky had combined separate elements of customer service for a single ‘broadband and landline’ category or whether they had combined the overall customer service score from the separate ‘broadband’ and ‘landline’ categories. The ASA added that the qualification in the second ad did not sufficiently clarify the meaning. The ASA understood the sample size of the responses differed for Sky and Virgin Media within broadband and landline services. They explained that the individual metrics should not have simply been added together but should firstly have been weighted according to their sample size.

The ASA also considered that some respondents in the Ofcom report may have reported on the stand-alone landline or broadband service which was offered by Sky or Virgin Media respectively, rather than the combined bundle being advertised. However, they considered it unlikely that there would be significant differences between the satisfaction levels in relation to any standalone services as compared to a combined service so as to render this information irrelevant to the combined package. Nevertheless, the ASA concluded that the methodology used to combine the metrics was insufficiently robust. The way the figures had been collated meant there was a risk of responses having been duplicated and the figures distorted by issues relating to the combined landline and broadband services having been included in both the separate landline and broadband metric. Moreover the basis for the comparison was not made clear in the claims in both ads, and particularly in the second ad. The ASA therefore upheld this complaint.

This adjudication serves as a useful reminder as to the care needed in substantiating claims, particularly in comparative advertising. In any highly competitive industry, advertisers should take particular care and ensure that when making competitor claims, any claim made is truly reflective of the source for the claim. In particular, figures should not simply be combined to seek to portray a true reflection of the report. As the ASA noted, figures should be calculated in accordance with their sample size. Advertisers must always consider a range of variables when using reports such as the effect of duplicate results, the basis on which the results were obtained and the location or region the results were obtained from. Advertisers must remember that competitors will always scrutinise competitive ads.

PUBLISHING

8. Associated Newspapers Ltd t/a Daily Mail, 11 November 2015

A promotion in the Daily Mail newspaper in association with WH Smith plc stated, “To claim your free LEGO Toy [name of toy] complete this voucher, cut it out and take it to any participating WH Smith High Street store while stocks last … Subject to availability”.

Complaint / Decision

The complainant was unable to redeem their voucher as they were informed that the merchant was out of stock. They challenged whether the ad was misleading as they did not believe the advertiser had a made a reasonable estimate of demand for the product. The ASA did not uphold the complaint.

Daily Mail explained that they had based their estimate of demand for the product on three previous and similar promotions held in the two preceding years. As well as considering the stock distribution of Daily Mail newspapers in WH Smith stores, they sought advice from WH Smith on stock allocation and as to the number of customers who receive the newspaper via home delivery. As a result, Daily Mail had ordered an additional 10% of the products. They also sought to rely on the fact that their ads contained disclaimers and that WH Smith stores were supplied with postcards which would allow a customer to redeem the product by post if stock had run out. WH Smith provided the ASA with a spreadsheet detailing the allocation of the product to each of their stores which they believed showed that stores had been supplied with more than a sufficient allocation of products.

The ASA considered the information Daily Mail had provided in regards to the promotion. Although customers were likely to be disappointed if they were unable to obtain the product immediately from a store, the ASA noted that a larger percentage of products were returned from the stores at the end of the promotion and only a small percentage of customers had redeemed the offer via postcard. The ASA made clear that the disclaimers would not be sufficient to remove Daily Mail’s or WH Smith’s obligation to do everything reasonable to avoid disappointing customers. Nonetheless, the ASA considered that Daily Mail’s use of the previous promotions as a basis for a reasonable estimate of demand was sufficient as there were similarities in the duration, means of redemption and type of product.

This adjudication serves as a useful reminder for advertisers to always consider whether they have made a reasonable estimate of demand for a product. It is not enough to rely on disclaimers even where they appear to demonstrate a clear message of limited stock or availability, as this will tend not to demonstrate that an advertiser has done everything reasonable to avoid disappointing consumers. When repeating or introducing similar promotions, it is sensible practice to use recent past promotions as a starting block to help determine the terms, demand and duration of the new promotion. Relevant issues to consider may include the time of year, the duration of the offers, the means of redemption and the type of promotional item and whether this provides a reasonable basis on which to estimate demand.