ASA Adjudications Snapshot - May 2016

RETAIL

1. ASDA Stores Ltd 4 May 2016

An online sales promotion for ASDA, seen mid-July 2015, stated "3 FOR £3 … ASDA Choco Squares … £1.38 … 3 for £3.00".

Complaint / Decision

The complainant, who understood the price of the product was increased from 97p per box prior to the promotion, challenged whether the ad was misleading.

The ASA upheld the complaint.

Asda stated that the product was priced at 97p per box between January 2015 and 5 July 2015, and at £1.38 from 6 July 2015. They stated the ad communicated all information required to allow the consumer to make an informed choice and believed the ad did not make any implied comparison with the product’s past price. ASDA stated that if the product had not been included in the offer a customer would have paid £4.14 for three boxes and therefore as a result of the offer a customer would have saved £1.14 for the same amount of products.

The ASA noted that, in relation to promotions involving multiple items, the Competition and Market Authority’s (CMA) report “Pricing Practices in the Grocery Market” stated “If the price of the individual item is artificially inflated, this could mislead the consumer as to the genuine price of the product in question”. The ASA agreed with this point of view. As the product had been priced at 97p for six months before changing to £1.38 the day before the promotion, which was a 42% uplift, the ASA considered that 97p was clearly the usual selling price and therefore considered that the ad was misleading.

Although the ASA has consistently upheld pricing complaints where it considered that the reference price was not the genuine selling price, the timing of this ruling is significant in light of the CMA’s final response to the Which? ‘super-complaint’ on misleading pricing practices by supermarkets on 27 April 2016, in which the CMA specifically singled out Adsa for criticism. It is also significant that the ASA quoted directly from the CMA’s “Pricing Practices in the Grocery Market” report in making its adjudication, showing a clear alignment between the two regulators. As our LawNow on the announcement notes, the CMA has recently begun to take a more active approach as an enforcement and regulatory body meaning those in the grocery industry should ensure that their marketing clearly complies with CMA and CAP guidelines.

2. Smart Response Media Ltd 4 May 2016

A TV ad for Smart Response Media Ltd, featured an actor who made several slices to a tomato that was not being held with their hand. The ad cut to the actor who held a courgette in their hand, above a chopping board, and the voice-over stated "... and with a knife this sharp, who even needs a chopping board".

Complaint / Decision

1. Two complainants challenged whether the ad encouraged unsafe practice; and

2. a second complainant challenged whether the ad featured behaviour that could be dangerous for children to emulate.

The ASA upheld both complaints.

Smart Response stated that the ad featured a chef, rather than an actor, who was in control of the knife at all times. The believed that in the scene featuring the tomato it would have been impossible to show how sharp the blade was if the chef was holding it. Smart Response also believed the scene featuring the courgette was not unsafe as it was held close to the cutting board and the chef’s hand was positioned a safe distance from the blade.

Smart Response stated that the ad had not featured and was not directed at children and that the knife could not be sold to anyone under the age of 18. As such they believed the ad would not encourage children to emulate the chef’s actions.

As the ad featured a chef in a kitchen environment the ASA considered that consumers would view it as a professional demonstration of food preparation. However, in the scene featuring the chef slicing the tomato, the ASA considered that not holding the tomato was not a common food preparation method and was unlikely to be considered safe. The ASA also considered the action of cutting the courgette over the chopping board to be unsafe and that this was reinforced by the voice-over. Consequently the ASA considered the ad condoned the use of unsafe techniques and could encourage consumers to do the same.

Although the ASA accepted that the ad did not feature children and was not directed at them, they considered it was possible that children would see the ad and that the techniques shown condoned behaviour that would be dangerous for them to emulate.

Advertisers should take a common sense approach when planning ads which contain knives or other dangerous goods. Demonstrations of such products in circumstances which are likely to be considered unsafe or not representative of ‘every-day use’, even if carried out by professionals, such as a chef in this case, are likely to breach the Code.

3. Trainingmask LLC 18 May 2016

A website for Training Mask Europe, seen October 2015, featured the text “TRAINING MASK SIMULATES HIGH ALTITUDE TRAINING”. Further text included “Introducing Training Mask, a new, PATENED[sic] product that helps condition the lungs by creating pulmonary resistance and strengthening the diaphragm, making your workout seem like it’s been held high in the mountains”.

Complaint / Decision

The complainant challenged whether the claims that the product simulated high altitude training were misleading and could be substantiated.

The ASA upheld the complaint.

Training Mask advised that the mask had three effects which simulated, or imitated, high altitude training. Training Mask also provided details of three studies as substantiation for the advertising claims: the first was a study abstract only, published in a journal which listed conference proceedings at which the study had been discussed; the second was an unpublished report of a clinical trial; and the third was a full study report published in a peer-reviewed journal.

The ASA noted that all three studies only used a small number of participants. The abstract study was not blind or controlled and only investigated the immediate effects of the mask whilst being worn. Furthermore as the abstract did not describe the methodology of the study in detail, the ASA concluded there was insufficient information on which to base the claims. Although the second study measured the mask’s effect over a training programme the ASA noted that it was neither blinded nor controlled, that it was conducted on a prototype and that only results which showed significant statistical improvement were reported on.

The ASA considered that the methodology and results of the full study report were sufficient to support limited claims that the mask could engender hypoxemia. Again, however, it only measured the immediate effects of the mask while it was being worn. Further, the study was not sufficient to support claims that the mask could produce improvements in physical conditioning and performance similar to those experienced when training at high altitudes. The ASA also noted that the study was not published until March 2016 and Training Mask Europe therefore did not hold it as substantiation for their advertising claims at the time the ad was seen by the complainant.

As discussed in last month’s snapshot in relation to BioElectronics Corporation, bold claims must be substantiated by evidence of a sufficiently high quality. In order to be deemed as ‘high quality’ the ASA generally requires studies to contain a reasonable number of people, last for an appropriate period of time, contain a control or placebo group and be sufficiently robust in its methodology and findings to support any claims made. The ASA also requires substantiation to be held at the time a claim is made and will generally not accept subsequently obtained substantiation.

4. Chums Ltd 18 May 2016

A national press ad promoting an Instalife acupressure pad included claims such as “HELPS STOP PAIN in its tracks!”, and “Helps to RELIEVE lower back PAIN After just one use!”. Text next to an image of a woman, who appeared to be in pain, stated “Insta Life Acupressure Pad helps relieve both short term and chronic sciatic back pain”. The bottom of the ad featured a testimonial which stated “The relief after applying Insta Life is wonderful and I can now carry on with my life again!”.

Complaint / Decision

The complainant challenged whether:

1. the pain relief claims were misleading and could be substantiated; and

2. the testimonial was genuine.

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

Chums provided a clinical trial to support the pain relief claims made in the ad together with a physiotherapy report and evidence related to the Instalife Acupressure Pad’s class 1 medical device status. They also provided a copy of the letter sent by a customer, whose words had been used in the testimonial.

The ASA noted that the clinical trial, which lasted for four weeks, did not contain a control group or placebo device and that it was solely dependent on participants self-reporting pain improvement without reference to any measure. The ASA therefore concluded that it was not sufficient to substantiate the various strong pain relief claims in the ad. The ASA also considered that the trial did not last long enough to examine whether relief could be provided with regular use of the product. In addition, as the ad offered treatment for “chronic” sciatic pain, which was not carried out under the supervision of a suitably qualified medical professional, the ASA considered it discouraged essential treatment for a condition for which medical supervision should be sought. In light of the above, the ASA upheld the first complaint.

As the evidence provided by Chums contained the address and signature of the customer and showed they had made the statement reflected in the ad the ASA considered it demonstrated that the testimonial in the ad was genuine and did not breach the Code.

As discussed above, studies carried out to support claims must be substantiated by evidence of a sufficiently high quality. In relation to medical claims marketers should also ensure that such claims do not represent the product as an alternative to essential treatment for a condition which requires professional medical supervision as the ASA may consider that these discourage consumers from seeking necessary treatment.

FINANCIAL

5. TransferWise Ltd 4 May 2016

Claims on a website for an online money transfer service, stated "With TransferWise you save up to 90% ...". It also included a currency converter calculator, which stated "You're sending exactly" in GBP and "Recipient gets" in another currency. Underneath it stated the exchange rate used, the fee applied, when the money would arrive and "You're saving: £X", which changed depending on the amount inputted into the calculator. A pop-up appeared when clicking on the saving amount or a button immediately below which stated "SEE HOW". The pop-up stated figures including the fee, estimated rate, amount the customer would receive after transfer and saving for TransferWise compared to the 'Average Bank'.

Complaint / Decision

1. The complainant challenged whether the savings claims quoted in the calculator were misleading and could be substantiated.

2. The ASA challenged whether the comparative claim "you save up to 90%" against 'banks' was misleading and could be substantiated.

3. The complainant and the ASA challenged whether the comparative savings claims were verifiable.

The ASA upheld the complaints.

TransferWise advised that the claims were based on a ‘mystery shopper exercise’, commissioned by an independent third party. This looked at transfers of £1,000, £5,000 and £10,000 across six of the most popular currency routes as transfers up to £10,000 made up 99% of all their transfers. TransferWise advised that the exercise was conducted against all their major competitors and covered 90% of the currency bank transfer market. According to the exercise the mean saving on a transfer of £1,000 into Euros, which was the most frequently used currency route, equated to £89.43%. TransferWise stated that customers would have saved at least 90% in 31% of the scenarios surveyed in the mystery shopping exercises. TransferWise believed the comparative savings claims were verified by the text in the pop-up box when the consumer clicked on the 'SEE HOW' button located directly underneath the calculator.

The ASA considered that "You're saving: £X" was an absolute claim. With the exception of the transfer of £1,000 into Euros, for all other transfers, except two, the average savings were less than 90%. Consequently the ASA considered that the savings shown in the calculator were artificial and did not represent the actual savings a consumer would achieve for that transaction. With regards to the claim "you save up to 90%" the ASA noted that the currency calculator listed 16 different ‘sending’ currencies and 36 different ‘receiving’ currencies and allowed consumers to input currency amounts for every possible combination of currencies. However TransferWise only provided data in relation to six of the most popular transfer routes which the ASA considered insufficient substantiation for the claim as other routes were not taken into account.

With regards to the third complaint the ASA noted that the ad did not contain any information, or a signpost to information, which would allow consumers to understand and check the validity of the claims. As the CAP Code requires that comparisons with identifiable competitors are verifiable the ASA concluded that the ad breached the Code.

Where bold absolute claims are made evidence should be presented to provide clear substantiation. In this instance TransferWise should have been able to demonstrate that savings of up to 90% could be made across at least 10% of the product or service offered, in line with standard ASA practice. Advertisers should also be wary of extrapolating data and applying this to other products or processes. Instead, where absolute claims are made, advertisers should ensure that data is available to substantiate the claim in relation to each individual product or process that the claim covers.

LEISURE

6. Medipen Ltd 18 May 2016

Claims on a website and the advertiser's Facebook profile page, promoted a cannabidiol (CBD) oil vaporiser.

a. Claims on medipen.co [sic] stated, "The World's First All Natural Cannabis Vaporiser". Text at the top of the page stated, "MEDIPEN" alongside a logo which included a green cross symbol.

b. Claims on the advertiser's Facebook page stated, "MediPen ... Health/Beauty" alongside the same logo.

Complaint / Decision

1. Kana-vape.uk challenged whether the claim “the world’s first all-natural Cannabis Vaporiser” in ad (a) was misleading and could be substantiated.

2. The ASA challenged whether ad (a) was irresponsible by associating cannabis with an e-cigarette; and

3. whether the imagery and name of the product in both ads suggested that the product had medical benefits.

The ASA upheld all three complaints.

Medipen stated they were the first company to release a CBD vaporiser without the use of the synthetic substance propylene glycol, which was commonly used in e-cigarette style devices. Medipen also stated that the product was not designed for smokers and that their press materials made it clear that the product was not to be referred to as an e-cigarette. They advised that while CBD oil came from a cannabis extract, it was not subject to the Misuse of Drugs Act. Medipen stated that the product name was a play on ‘meditation pen’ and that the product was not presented as a medical device.

The ASA considered that consumers would expect detailed information about the product’s contents and manufacturing processes in order to substantiate its “all natural” claims. However this information was not provided. The ASA therefore considered that adequate information had not been provided to substantiate the “all natural” claim. The ASA considered that, for the purposes of the CAP Code, the Medipen was covered by the rules governing e-cigarettes. The ASA noted that the phrase “Cannabis Vaporiser” was particularly prominent in the ad and considered that this, together the image of cannabis leaves below the claim, created a clear association with cannabis which was socially irresponsible and thus breached the Code.

The ASA considered that consumers were likely to associate “Medi” with medicine, rather than meditation. They also noted that the logo contained a green ‘plus’ symbol which resembled the Pharmacy Green Cross logo meaning consumers would associate the logo with pharmacies and therefore health. Furthermore the product name and symbol appeared near the claim “Health/Beauty”, which the ASA understood was intended to categorise the advertisers business on Facebook. Therefore, as the product was not authorised by the Medicines and Health Products Regulatory Agency (MHRA), but the ads made health or medicinal claims, the ASA concluded that they breached the Code.

Since its launch last year the Medipen has received a large amount of media coverage due to the fact its active ingredient, cannabidiol (CBD), is extracted from the cannabis plant. It is interesting that the ASA itself brought complaints 2 and 3 and shows that the ASA will take a strict approach on products which may create irresponsible associations with illegal substances. In this instance, although CBD is not subject to the Misuse of Drugs Act and can therefore be legally sold, the ASA clearly felt that the phrase “Cannabis Vaporiser” created a clear and irresponsible association with cannabis generally. Additionally, although marketed as an alternative treatment to a wide variety of conditions including muscular pains, mood disorders and insomnia, the Medipen is not authorised by the MHRA and therefore was not cleared to make health or medicinal claims. Advertisers seeking to offer alternative ‘herbal’ remedies should therefore avoid making specific health claims and should refrain from implying products are medicinal products if these have not been authorised by the MHRA.

TELEVISION

7. McDonald’s Restaurants Ltd 4 May 2016

A TV ad for McDonald’s included statements raising concerns over what parts of chicken, its Chicken McNuggets came from. A voice-over then stated, “This is Rosie. She’s a food tech teacher and mum. When it comes to food Rosie knows what’s what. She knows what 100% chicken breast meat looks like and what it tastes like.” Rosie was shown inspecting a McNugget under a magnifying glass, then tasting it and nodding appreciatively. The voice-over stated, “So now Sarah knows what goes into our McNuggets, everyone’s happy.

Complaint / Decision

The ASA received nine complaints.

1. Eight of the complainants, who understood the product was made up of only 45% chicken breast meat, challenged whether the claim “100% chicken breast meat” was misleading.

2. Six of the complainants challenged whether the reference to Rosie being a “food tech teacher” was misleading, because they believed it suggested that the product had been formally endorsed by a food expert.

The ASA did not uphold either complaint.

McDonald’s confirmed that the product as a whole contained 45% chicken breast meat but stated that the claims were intended to highlight that the meat in the product was solely chicken breast to address the possible myth that the meat came from unsavoury parts of the chicken. McDonald’s provided documents from two suppliers who confirmed that the meat in Chicken McNuggets was solely chicken breast. McDonald’s confirmed that Rosie’s character was played by a food technology teacher who had 11 years’ experience teaching children how to cook and the science behind the food. McDonald’s stated the scene with Rosie was not an endorsement of the product, but it did provide confirmation by a food professional that the meat in Chicken McNuggets was chicken breast meat.

The ASA considered that the average consumer would take the claim and accompanying imagery to mean that the meat in the product was solely chicken breast meat, rather than that the product was made entirely from chicken. The ASA accepted that, while chicken made up 45% by weight of ingredients in Chicken McNuggets as a whole, the meat was 100% chicken breast. The ASA therefore concluded that the claim was not misleading. While the ASA noted that ‘Rosie’ was played by an experienced food technology technician they considered that the average consumer would expect the character to be fictional and simply used for illustrative purposes and therefore concluded that viewers would not interpret the ad to mean the product had been formally endorsed by a food expert.

In this adjudication the ASA considered that it was clear that the claim was intended to highlight that the meat in the product was solely chicken breast meat. It is interesting that despite ‘Rosie’ being played by an experienced food technology technician the ASA considered that the average consumer would expect the character to be fictional and thus by implication would not infer that the product had been formally endorsed by a food expert, as appears to have been the intention of McDonald’s. Consequently where advertisers have specifically employed an expert to formally endorse a product, this should be clearly conveyed within the ad.

ALCOHOL

8. Maxxium UK Ltd 4 May 2016

A YouTube video ad for the Sourz alcoholic drink stated “Sourz presents #worldofcolour … The world is full of colour you just have to go find it”. The ad featured various vibrant scenes which included clips of a fairground ride, robotic toys and a clown. The ad showed people participating in activities such as dancing, tubing and skateboarding. A man was shown falling backwards into a swimming pool. The penultimate scene also featured a man jumping on to an inflatable and into a swimming pool. On-screen text at the end of the ad stated “This is our moment this is our shot” above an image of seven varieties of the Sourz drink.

Complaint / Decision

Alcohol Concern challenge whether the ad was socially irresponsible by:

1. Linking alcohol with dangerous, brave or daring behaviour.

2. Being likely to appeal to people under 18 years of age by reflecting youth culture.

3. Showing people under 25 years of age playing a significant role.

The ASA did not uphold the complaint.

Maxxium UK stated the video was designed to highlight colourful scene s from around the world and that at no point was alcohol shown being consumed or linked to any of the activities shown. They stated the activities were shown featuring adults from all ages and that they did not believe showing these would make under-18s more likely to consume Sourz.

The ASA considered that the activities featured would be regarded by viewers as playful, rather than brave or daring behaviour. The ASA noted that participants were not shown consuming alcohol and did not consider that viewers would infer the activities were carried out as a result of drinking. While shots featuring toys, a clown and a fairground ride might in themselves appeal to under-18s, the ASA considered that they were shown in the wider context of the ad and that the vibrant imagery was relevant to the “world of colour” theme featured throughout the ad. Whilst Maxxium UK did not provide evidence to show that the actors featured were over 25 the ASA did not consider that any individual played a significant role. For these reasons the ASA did not uphold the complaints.

The ASA will generally take a strict approach in relation to the advertisement of alcoholic products and will uphold ads which they consider create a clear association between an alcoholic product and tough and daring behaviour. This can, however, be a difficult line to draw and there have been some tough decisions in this area, in particular for Mast-Jaegermeister UK Ltd in July 2014 (see ASA Adjudications Snapshot - July 2014). When marketing alcoholic products, marketers should ensure ads are socially responsible and do not contain behaviour which may be seen by the ASA as making an association between the consumption of alcohol and “tough” or “daring” behaviour. Importantly, in this instance, the ad did not feature any of the actors consuming the product and the ASA considered that the activities shown were ‘playful’ rather than daring.

HEALTH AND BEAUTY

9. Alevere Ltd 11 May 2016

A poster in a London Underground train seen on 19 October 2015 for Alevere, a weight loss and contouring programme, featured a 'before' and 'after' photo of a patient. It stated "I lost 4st 6lbs in just 14 weeks! Alevere London. Medical Weight Loss and Body Contouring WITHOUT SURGERY.

Complaint / Decision

The complainant challenged whether:

1. the ad promoted a treatment for obesity which was advertised to the public and therefore, challenged whether it was to be used under suitably qualified supervision;

2. the claim "I lost 4st 6lbs in just 14 weeks!" was a weight loss compatible with good medical and nutritional practice; and

3. the claim "medical weight loss ... without surgery" was misleading and could be substantiated because it implied Alevere was as effective as weight loss surgery.

The ASA did not uphold the complaints.

Alevere advised that they employed an in-house team of medical doctors fully registered with the General Medical Council (GMC). Patients received a one-hour consultation before they were accepted for treatment and were then reviewed and examined by their doctor every 2-4 weeks. During treatment Alevere stated that patients attended their clinics on a weekly basis and were assessed either by a doctor or a clinical therapist who had been trained to the doctor’s required standards.

Alevere understood that there was not a consistent opinion as to what constituted good or best practice among doctors but stated that the GMC required their practice to be supported by ‘a responsible body’ of medical opinion which could be a doctor’s colleagues, peers and closely related scientific and medical professionals acting in the same way. Alevere also stated that the ad did not make a comparative claim regarding their treatment programme compared to surgery but that it was simply an accurate statement of fact.

The ASA noted that the CAP Code explained that obesity was frequently associated with a medical condition and specified that treatment for it should not be advertised unless under suitably qualified supervision. Previous expert advice sought by the ASA found that whilst overall responsibility rested with GPs, they could delegate to another member of the primary care team. The ASA considered that Alevere had demonstrated that their doctors and clinical therapists were providing continuous care and had full knowledge of the patient while on the Alevere programme and therefore concluded that the Alevere programme could be advertised to the public.

The ASA noted that the CAP Code stated that claims for an individual to have lost an exact amount of weight must be compatible with good medical and nutritional practice and that those claims must state the period involved and must not be based on unrepresentative experiences. Although the Code stated that weight loss greater than 2 lb a week was unlikely to be compatible with good medical and nutritional practice, which the patient’s weight loss in the ad was, as the patient and his weight loss were medically supervised during the programme, the ASA considered the weight loss he experienced was compatible with good medical practice.

In relation to the final complaint the ASA did not consider that the claim implied that any weight loss would be comparable with weight loss surgery. As the ASA did not consider that the claim went any further than reflecting the nature of the programme they concluded that the claim was not misleading.

When making weight loss claims, especially those targeting the obese, advertisers should ensure that any treatment or advice is provided under suitably qualified supervision. While in this instance the ASA considered that the doctors providing the advice and treatment were suitably qualified and could delegate to another member of the primary care team, in the 2014 “Smash the Fat” ad the ASA considered that an advertiser, who had studied obesity as part of his personal training qualification, wasn’t suitably qualified. It is also interesting that although the claim in relation to weight loss exceeded what is considered compatible with good medical and nutritional practice under the CAP Code, as the patient was medically supervised and the claim was supported by ‘a responsible body’ of medical opinion, the ASA did not consider that it breached the Code.

10. Fuel Station Ltd 25 May 2016

A tweet from Fuel Station (a company that delivers meals) on their @FuelStation_Twitter feed was accompanied by an image of the food in its packaging, which featured text that stated “#EatFitBeFit Fuel Station …”. The packaging also featured an image that looked similar to a fuel gauge.

Complaint / Decision

The complainant challenged the claim “#EatFitBeFit”, which as a general reference to the benefits of the product for overall good health or health related well-being must be accompanied by a specific authorised health claim.

The ASA upheld the complaint.

Fuel Station stated that the claim “#EatFitBeFit” was a slogan to encourage people to eat healthier. They believed it suggested that health and fitness levels were affected by what a person ate and was a generalisation that health, fitness and diet were directly linked rather than a general health claim.

The ASA noted that according to EC Regulation 1924/2006 on nutrition and health claims made on foods, which is reflected in the CAP Code, only health claims which appeared on the EU Register of authorised health claims are permitted in marketing communications. The ASA further noted that references to general benefits of a nutrient or food for overall good health or health related well-being were only acceptable if accompanied by a specific authorised health claim. The ASA considered that consumers would understand the claim "#EatFitBeFit" to mean that the meals would help people become “fit” and therefore would be beneficial to their health. As "#EatFitBeFit" was not accompanied by a general health claim the ASA concluded the ad breached the Code.

Under the CAP Code a health claim is made whenever it is suggested or implied that a relationship exists between a food category, a food or one of its constituents and health. In this instance the ASA considered that claim "#EatFitBeFit" clearly implied that the product would be beneficial to a consumer’s health and thus should have been accompanied by a general health claim. Any health related claims for food and drink need to be considered very carefully by reference to the Nutrition and Health Claims Regulation (EC/1924/2006).

HOUSEHOLD

11. GlaxoSmithKline Consumer Healthcare (UK) Trading Ltd 11 May 2016

A TV and YouTube ad for GSK’s Aquafresh 24-hour Sugar Acid Protection toothpaste:

a. The TV ad featuring a cartoon super hero knocking over sugary products included a voice-over which stated, “Sugar can attack anytime. Get around the clock defence against everyday sugars with Aquafresh 24-hour sugar acid protection toothpastes. Aquafresh, 24-hour sugar acid protection.” On-screen text stated “Protection provided by fluoride, with twice-daily brushing”.

b. The YouTube ad was a similar but extended version of the TV ad

Complaint / Decision

Colgate-Palmolive challenged, in relation to fluoride, whether the claims “Get around the clock defence against everyday sugars with Aquafresh 24-hour sugar acid protection toothpaste” and “24-hour sugar acid protection”, in ads (a) and (b), were misleading and could be substantiated.

The ASA upheld the complaint.

GSK provided expert opinion by three dental academics who all agreed that twice daily brushing with fluoride toothpaste could provide continuous protection against sugar acid. GSK believed this, together with several published papers showed fluoride had a continuous protective effect, supported the “24-hour sugar acid protection” claim. GSK stated the term ‘sugar acid’ aided consumer understanding of the complex process that described the metabolism of dietary sugars by bacteria that produced acid which caused decay.

The ASA acknowledged that the benefits of brushing with fluoride were generally established. However the ASA understood that there was no guarantee of the longevity of that protection due to a number of mitigating factors including consumption of food containing sugars between brushing, rinsing behaviour and saliva flow rate. As the level of protection afforded could be compromised by frequent consumption of sugary food and other factors, the ASA concluded that the claims were misleading and had not been substantiated.

Whilst the ASA acknowledged the benefits of brushing with fluoride they considered that the claims did not take into account other mitigating factors which would reduce this protection over time. When making specific health claims in relation to products advertisers should ensure that these can be supported by sufficient evidence. Furthermore when using simplified terms to aid consumer understanding, such as ‘sugar acid’ in this instance, advertisers should ensure that these do not oversimplify the process referred, to the extent to which they may mislead consumers.

12. Hutchison3G UK Ltd 11 May 2016

A press ad for Three, included text which stated “The undisputed. UK’s most reliable network. Again.” The ad featured the YouGov logo in the bottom left-hand corner.

Complaint / Decision

Everything Everywhere Ltd (EE) and a member of the public challenged whether the claim “The undisputed. UK’s most reliable network. Again.” was misleading and could be substantiated.

The ASA upheld the complaint.

Hutchison 3G t/a Three believed consumers would understand that the claim was based on the findings of a YouGov report as a result of the YouGov logo in the ad. Three stated that they had come top in each of the five consecutive quarters in the report’s comparison about network reliability. Three stated that there was no standard, objective industry test for network ‘reliability’ and that the best way to test ‘reliability’ was to ask consumers about their personal experiences.

The ASA considered that the YouGov logo was not overly prominent and could be overlooked by readers. The ASA also considered that consumers would understand that the reliability claim was based on robust, objective measures of network reliability. This impression was emphasised by the use of the word “undisputed”. As the claim was based on subjective opinions rather than objective measures, the ASA therefore found the claim to be misleading.

When making absolute claims based on third party reports advertisers should ensure that the source of such claims is prominently referenced so that consumers can refer to it. Furthermore, advertisers should consider whether the report’s methodology is a robust and objective measure of the claims the advertiser is using it to support, especially when the reports in question have not been specifically commissioned by the advertiser.