ASA Adjudications Snapshot - June 2016

INTRODUCTION

This summary provides a selection of June’s most interesting ASA adjudications and highlights the key issues considered in those adjudications.

This month features several interesting adjudications which look at ads which complainants have claimed are sexually suggestive and/or objectify women. This is especially interesting given the ASA’s call for evidence on gender stereotyping in ads on June 6 2016. There are also a number of interesting adjudications looking at the use of comparative claims and nutrition and health claims, as well as further complaints relating to pricing more generally.

RETAIL

1. Jack Wills Ltd 1 June 2016 – images in a catalogue considered to be sexually suggestive and therefore irresponsible and in breach of the code.

2. Victoria Plum Ltd 1 June 2016 – discounted prices in TV ad and website considered misleading and unsubstantiated – number of items checked represented only a small proportion of all available items.

3. The Jewellery Channel Ltd 29 June 2016 – claims made for Jojoba oil product not substantiated and constituted medicinal claim for unlicensed product.

4. Etesia UK Ltd 29 June 2016 – sexist images used in marketing for a horticultural company were in breach of the code.

5. Aldi Stores Ltd 29 June 2016 – wording used in comparative ads with price comparisons was not sufficient to counter the overall message in the ad, which was misleading for not making the basis for the comparison clear.

COMMUNICATIONS AND TELECOMMUNICATIONS

6. TalkTalk Telecom Ltd 1 June 2016 – comparative superiority claims for TalkTalk’s “Super Router” found to be misleading.

FOOD AND DRINK

7. Nomad Foods Europe Ltd 1 June 2016 – a TV ad was found to be misleading for exaggerating the portion size shown in the ad.

HEALTH AND BEAUTY

8. Wisdom Toothbrushes Ltd 29 June 2016 – a claim seeking to rely on poll results was found not to be substantiated where there were only a small sample number of respondents and the wording of the question asked did not properly reflect the claim being made.

LEISURE

9. Rocks and Co Productions Ltd 15 June 2016 – a teleshopping presentation was found to have misleading claims as to the quality of the products being advertised by comparison with a High Street equivalent.

ALCOHOL

10. The Gin Lab Ltd 15 June 2016 – a series of Facebook ads intended to be humorous had complaints upheld, in particular for making a comparative nutrition claim by reference to the calorie content in a gin and tonic by comparison with a banana.

CLOTHING

11. Charles Tyrwhitt Shirts Ltd 22 June 2016 – discount pricing claims were considered misleading including for failing to substantiate the reference price for new product lines.

RETAIL

1. Jack Wills Ltd 1 June 2016

A direct mailing for Jack Wills included their spring catalogue. One page featured images of male and female models in their underwear drinking, dancing and on a bed together. Text at the top stated “UNDERWEAR … Pure and comfortable cottons, or flirty delicate laces, whatever your choice, you can be sure it’s what’s underneath that counts …”. Large text at the bottom stated “… midnight MISCHIEF”.

Another page, promoting “loungewear”, featured images of male and female models on a bed. Some of the models wore loungewear, one male model was topless on a bed with a woman while reading and another woman wore a bra with a strap falling off her shoulder.

Complaint / Decision

The complainant challenged whether the images were unsuitable for publication in a clothing catalogue that was targeted at, and seen by, teenagers.

The ASA upheld the complaint.

Jack Wills stated that their target audience was 18-24 year-old university students, not younger teenagers. They did not consider the images to be sexualised, provocative or to imply sexual activity in any way and that none of the images featured nudity or transparent clothing. Jack Wills also did not consider the claims to be sexually suggestive or inappropriate as they were accompanied by images of the group having fun together.

Although the ASA accepted that Jack Wills’ target audience was 18-24 year-olds they considered that younger teens might have access to the ad and that the images were likely to appeal to those readers as they portrayed a lifestyle to which they might aspire. The ASA noted that the models were shown partially dressed or in underwear but considered these were appropriately fitted and not sexualised. However the ASA considered the sequence of images, including showing the models drinking and in bed together, accompanied by the claims “Flirty laces”, “MIDNIGHT MISCHIEF” and “made for the morning after the night before” were sexually suggestive rather than simply being flirtatious or playful. As they understood younger teens would have access to the catalogue, the ASA therefore considered that the ad was irresponsible and breached the Code.

Recently, there have been a number of rulings pertaining to sexually suggestive ads, coinciding with the ASA’s call for evidence on gender stereotyping in ads. When assessing such complaints the ASA will consider whether the image is suitable for the product being advertised and whether it is gratuitous or objectifying women. In this instance, as the ad could be seen by young teenagers and contained sexually suggestive sequences of images and claims, the ASA were of the opinion that it was socially irresponsible.

2. Victoria Plum Ltd 1 June 2016

The complaint related to claims made on TV and on the website for bathroom retailer Victoria Plum:

a. The TV ad featured various bathroom products. The voice-over stated: “ With prices up to 40% lower than Bathstore.” On-screen text stated “PRICES UP TO 40% LOWER THAN BATHSTORE”. Text at the bottom of the screen stated “Independent price check on comparable products, dimensions may vary, excludes clearance. For T’s & C’s of our Lowest Price Guarantee & details on price comparison visit www.VictoriaPlum.com”.

b. The website www.victoriaplum.com, stated “IT’S OFFICIAL, OUR PRICES ARE UP TO 40% LOWER THAN BATHSTORE”.

Complaint / Decision

Bathstore challenged whether the claims “Our prices are up to 40% lower than Bathstore” in ads (a) and (b) were misleading and could be substantiated.

The ASA upheld the complaint.

Victoria Plum advised that they engaged an independent third-party company to match products on both companies’ websites. Bathstore’s prices were checked twice daily to ensure a minimum of 10% of all matched products exceeded the 40% discount. Victoria Plum stated that 176 products were matched and that while all of them were cheaper than Bathstore, around 67 to 83 were at least 40% cheaper than an equivalent product.

The ASA accepted that using an independent organisation to match prices was a reasonable approach. However, as Victoria Plum’s website listed thousands of bathroom products, the ASA considered that 176 items represented a very small proportion of items overall. As this number of products was likely the contradict the overall impression created by the ads that a significant proportion of products would be up to 40% cheaper than Bathstore, the ASA concluded the claims were misleading and had not been substantiated.

Where comparative claims are made by advertisers based on data provided by third party companies, marketers should ensure that the data provided represents a significant proportion of the products being compared. As shown in this ruling, failure adequately to survey a significant proportion of products may result in the ASA concluding that the claims lack substantiation and breach the Code.

3. The Jewellery Channel Ltd 29 June 2016

In a teleshopping ad promoting Jojoba oil, the product was claimed by the presenter and a special guest to have several features. The presenter first stated that “If you’ve got age spots, you might want a bottle of this…”, and reading the information leaflet, he declared it could be used for “sunburn, nappy rash… scars, acne, cradle cap…” and for “abrasions… insect bites, skin rashes, surgical wounds…”.

The guest made several remarks such as “girls stop producing sebum at 20 and boys at 25 years…” and that the oil was a “nature’s wrinkle fighter”. He also stated “I used to suffer a little bit with IBS and I took a little bit of it… I always put Jojoba on before my sun cream ‘… I never get bitten once’…”.

Complaint / Decision

One member of the public challenged whether:

1. The ad made clinical claims for an unlicensed product;
2. The product could be used as an insect repellent, to treat “age spots”, “scars” and wrinkles; and
3. The claim “girls stop producing natural sebum at 20 and boys at 25 years” was misleading and could not be substantiated.

The ASA upheld the three complaints.

The Jewellery Channel argued that neither the presenter nor the “special guest” said the product would “cure” specific problems but rather stated what it “could” be used for.

The Jewellery Channel argued that at no point did the presenter or the guest state that the product would be effective on everyone as an insect repellent, treating age spots, scars, and wrinkles. They argued that the dialogue made it clear that the remarks were linked to personal experience. The Jewellery Channel referred to a response that was provided to them by the manufacturer of the product and to customers’ testimonials on their website.

The Jewellery Channel stated that it was widely reported in medical journals that the production of sebum increased at the time of puberty and decreased whilst aging, which they believed was demonstrated in a clinical study they had provided.

The ASA considered that the ad suggested that the product could treat the named conditions by restoring, correcting or modifying a physiological function by pharmacological, immunological or metabolic action and that these were therefore, medicinal claims which required marketing authorization by the MHRA. Consequently, the ASA considered that the ad made medicinal claims for an unlicensed product and breached the Code.

The ASA expected stronger evidence to justify the efficacy claims, such as clinical trials on humans testing the effects of the products as an insect repellent, on age spots, wrinkles and scars, which were not provided. The ASA also stated that screenshots of testimonies were not robust documentary evidence, and therefore concluded that the claims were misleading.

The ASA considered that the fact that the production of sebum increased at the time of puberty and decreased whilst aging did not address the claim that they were investigating. Therefore, nothing was provided to prove that the production of sebum will stop at 20 for girls and 25 for boys. As a result, the ASA concluded that the claim was misleading.

Although not a surprising outcome in view of the claims made, this ruling emphasises that any medicinal claims need be supported by strong evidence and any personal experience cannot be accepted when it comes to proving medical issues. The Code has strong regulations in its Rule 12 on medicines, medical devices, health-related products and beauty products. Indeed, not only the claims must not be misleading but they must also comply with the rules and professional codes of conduct of relevant professional bodies.

4. Etesia UK Ltd 29 June 2016

An email send by pitchcare.com on behalf of Etesia UK Ltd, a horticultural equipment company, stated “Meet the Etesia Calendar Girls at SALTEX!... at the NEC Birmingham”. There was first an email representing one picture with two women wearing cut-off shorts, leaning on a motorized lawnmower and a second one with the latter holding a hedge hammer. The embedded video, filmed at the calendar photo shoot, featured the two underwear-clad models posing on or using gardening equipment.

Complaint / Decision

The complainant challenged whether the images in the email were offensive, because they were sexist and objectified women.

The ASA challenged whether the embedded video was offensive, because it was sexually suggestive and objectified women.

Unsurprisingly the ASA upheld both complaints.

Etesia UK sought to rely on the fact that the promotional calendar did not include any form of nudity and was only sent to customers by request, and they believed that neither the images nor the video were sexist. They said that it was not unusual for marketing communications of this type to be used in their industry.

The ASA made clear that such images would not be expected in a marketing communication from a horticultural equipment company and that, even if the images were not overtly sexually, the poses were likely to be considered sexually suggestive. The ASA considered that showing the women in their underwear while using gardening equipment for no other reason than a calendar shoot, presented the women as sexual objects and therefore is sexist. Consequently, the ASA concluded that both the email and the video were sexually suggestive, degrading to women and therefore, breached the Code.

5. Aldi Stores Ltd 29 June 2016

Two TV ads and a press ad for Aldi:

a. A TV ad included voice-over stating, “January. It’s time to lose a few pounds and gain a few. A big weekly shop at your usual supermarket could cost you this much …” Afterwards, a label that said “Big 4 Supermarkets £98” was displayed in the corner. The scene then changed to show a label which stated “Aldi £70”. The voice-over continued, “But a big weekly shop at Aldi would only cost you this much. Pound for pound that could add up to a seriously big saving this January.” On-screen text, which was displayed throughout the ad, included “Comparison of Aldi products vs products shown. Other supermarkets may sell ‘own brand’ products at different prices”.

b. A press ad seen on 12 February 2016 consisted of seven pages, the first page of which featured an image of two baskets that contained a range of products and stated “Is a price crunch amazing? …No, this is amazing”. An icon above the left-hand basket stated “Morrisons Price Crunch £18.19” while the icon above the right-hand basket stated “Aldi £11.42”. Text underneath included “When it comes to the crunch, Aldi win every time. Other supermarkets go up, down, all over the place. But Aldi have ‘everyday low prices’, so you know where you stand”. The small print at the bottom of the page included text that stated “Comparison of Aldi products vs products shown. Morrisons may sell ‘own brand’ products at different prices”.

c. An ad seen on TV showed a woman who said “I know, we saved 35 % shopping at Aldi this week. Now that is amazing. Be a sport, take the challenge. See how much you could save.” Two sets of food products were shown side by side on a kitchen table – one with “Big 4 Supermarkets £53.35” and one with “ALDI £33.04” displayed above. On-screen text, which was shown in the first half of the ad, included “Comparison of products shown. Other supermarkets may sell ‘own brand’ products at different prices”.

Complaint / Decision

Morrisons and two members of the public challenged whether the price comparisons were misleading.

The ASA upheld the complaint.

Aldi considered that consumers watching the ad were likely to interpret the comparison as intended and that consumers would understand that the compared supermarkets had their “own-brand” products, with the on screen text, “Other supermarkets may sell ‘own brand products’ at different prices” discharging them of any further burden to make that more clear. They believed that the complaints assumed there was a quality difference between the products compared. However, they chose a product of same quality and, for the fresh products, they compared like with like. Aldi further believed that UK consumers had a strong understanding of the grocery detailed market and that they would understand that Aldi predominantly sold its own exclusive products.

The ASA noted that although the comparison that took products of the same quality, the ads did not focus on that point. Indeed, the ads implied that by swapping from their usual big supermarket to shopping at Aldi, consumers could make savings of the levels highlighted in the ads. The ASA noted that by not always taking the cheapest product, they did not demonstrate that this was the case and concluded that the ads were misleading.

Comparative claims have to be made on like for like products to be authorised. Although Aldi had used wording to explain that the compared stores might have own-label products at different prices, this was not sufficient to qualify the strong overall message in the ads.

COMPUTERS AND TELECOMMUNICATIONS

6. TalkTalk Telecom Ltd 1 June 2016

Claims on the TalkTalk website stated "Market leading signal strength Our Super Router provides a stronger signal than BT, Virgin, Sky and EE ... Fastest speeds in the UK TalkTalk's new Super Router delivers the strongest signal and fastest speeds in the UK. Reaches parts of your home that the best routers from the other big providers can't. Delivers, on average, 56% faster speeds than routers from the other big providers*". The asterisk linked to text in the small print that stated "*Super Router comparison vs. BT, Virgin, EE & Sky Correct as of 25/03/2015. Testronics independent test results 2014 & 2015 in which the Super router was compared to the BT Home Hub 4, BT Home Hub 5, Virgin Superhub 2, Sky Hub SR101, Sky Hub SR101 and EE Bright Box 2".

Complaint / Decision

BT challenged whether:

1. the comparison claims were misleading and could be substantiated; and
2. sufficient information was provided to verify the comparison claims.

The ASA upheld both complaints.

TalkTalk sought to rely on an independent test facility which they had used to conduct benchmarking for TalkTalk's Super Router against the routers of their four major competitors on a like for like basis. TalkTalk stated that tests were conducted in a variety of consumer home environments and the Super Router was found to have the strongest and fastest signal in more cases than any of the other routers tested. As the test results had shown that the Super Router provided stronger signal strength in more locations than the other routers tested, TalkTalk believed it followed that such signal strength could reach parts of the consumers’ home that other routers could not.

TalkTalk stated that the test report was available via links on their website and that text stating the basis for the claims appeared at the bottom of the Super Router product page and linked to the test report.

The ASA noted that the report stated the TalkTalk Super Router had the strongest signal in four out of the five categories for Wi-Fi type 2.4 Ghz 802.11n Wi-Fi, but only had the strongest signal in two of the five categories for the 5 GHz 802.11n and in only one for 5 Ghz 802.11ac. However the ASA considered that consumers would understand the signal claim to mean that the Super Router provided a stronger signal than its rivals in all situations, not just for specific Wi-Fi types.

The ASA further noted that “Fastest speeds in the UK” was an absolute claim that the Super Router performed better than its competitors. However the ASA considered that the advertising should have made clear that the claim referred to the average fastest (wireless) speed and, as it did not, it was likely to mislead. In relation to the general superiority claim relating to “56% faster speeds”, the ASA noted that testing did not cover a suitable range of activities. The ASA therefore considered that TalkTalk’s substantiation was not robust enough to support the claims.

With regards to the information available to verify the comparison claims, the ASA noted that although the report was provided, it could only be accessed by clicking and expanding the heading “TalkTalk Fibre Broadband” found under “Small Print”. Clicking on the link took users through to another page with a further link that had to be clicked to open the test report. The ASA therefore considered that the means for consumers or competitors to verify the comparison claims in the ad had not been sufficiently or clearly signposted.

When making absolute and/or comparative 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. Advertisers should also ensure that the reports fully substantiate the claims made and that the methodology is robust enough to withstand scrutiny by the ASA.

FOOD AND DRINK

7. Nomad Foods Europe Ltd 1 June 2016

A TV ad for Birds Eye 'Stir Your Senses' ready-made meals, seen on 24 January 2016, featured a man and woman in the kitchen heating one of the range's pasta products on the stove. A pack was seen next to the stove. The ad featured images of two other products in the range being stirred in frying pans. In another scene, a woman was seen sitting down to eat one of the products from a bowl.

Complaint / Decision

The complainant challenged whether the ad was misleading, because it exaggerated the portion size of the product.

The ASA upheld the complaint.

Nomad Foods stated that, like all meals in the range, the product shown was a single serve product for adults. Nomad Foods confirmed that they had used one portion of the product for the bowl scenes to ensure they did not exaggerate the 'one portion' when someone was seen eating on their own. However they had used slightly more than one packet in the pan shots to bring life to the ingredients and to reflect the two person occasion dramatised in the opening scene.

The ASA purchased the product and cooked it. They considered that both the pan and bowl shots in the ad appeared to contain more pasta and mushrooms when compared to one real-life serving (one packet) of the product. The ASA concluded that the ad exaggerated the portion size of the product and was therefore misleading.

When making adverts demonstrating a product in action, marketers should avoid using methods which dramatise or embellish the size or effect of any such product. Specifically, in relation to ads for food, marketers should ensure that the portion shown is reflective of the product being advertised, both in terms of size and ingredients.

8. Wisdom Toothbrushes Ltd 29 June 2016

A magazine ad seen in Dental Health stated “with such a superior design it’s no wonder they are recommended by 100% of dental professionals”. Small print at the bottom of the page stated “*Source: Wisdom poll of Dental Professional responses on Wisdom Clean interdental brushes October 2013 and 2014”. On the website, the claim “Recommended by 100% of Dental Professionals*” was beside an image of the product.

Complaint / Decision

TePe Oral Hygiene Products Ltd challenged whether the claim “recommended by 100% of dental professionals” was misleading and could be substantiated.

The ASA upheld the complaint.

Wisdom Toothbrushes said that, being wire free, their products were popular with dental professionals. The claim was based on a poll conducted in 2013/14 in the form of an online questionnaire. 46 respondents answered yes to the question “Would you recommend this product to patients in practice?”. Wisdom Toothbrushes explained that they went to several professional dental shows in which they provided platforms where they demonstrated and explained the benefits of their products. They continued to get positive feedbacks from dentists on their products. They added that this research was conducted as a preference poll and not as a clinical study. The sample size of 46 dentists out of 107,052 registered dental professionals was more representative than the sample size used in polls used in other health and beauty ads.

The ASA noted that the magazine ad included the source of the results whereas the website did not. The ASA also noted that, the sample size was not included in either ad and that it was not confirmed whether the 46 dentists were the only ones polled or only those who responded. Considering the poll results, the ASA noted that some answers stated that some respondents had not used or recommended the products in their practices. The wording used in the claim did not therefore reflect the question asked in the poll. Therefore, the ASA considered that the evidence did not illustrate the claim, which was therefore not substantiated and was misleading.

This ruling highlights the importance of clarity in relation to any claims being made and to ensure, when relying on surveys, polls or testimonials, that the claims accurately reflect the wording used, and not to exaggerate the results.

LESIURE

9. Rocks and Co Productions Ltd 15 June 2016

The ad was a teleshopping presentation for a 9 ct. Gold Tanzanian Ruby Ring seen on Rocks & Co. The price was listed on screen as £922 and was reduced to £499 and later dropped to £349, then £279. On-screen text stated “9K Tanzanian Ruby Gold Ring Total Carat Weight: 1.675 ct. 1 Tanzanian Ruby from Tanzania-1.406 ct”. The presenter stated, “That’s what I find a lot on the high street like this for example” and an image of a ring was shown and described as an “18k Yellow Gold Ruby & Diamond cluster ring” priced at £1,750. The presenter stated, “That purple pink ruby, which is probably Madagascan, is, look at the price, £1,750, or today you could own that beautiful ruby red that spectacular clarity for just £349”.

Complaint / Decision

The complainant, who felt that the reference to the high street product implied that it was of a similar quality to the product being promoted, challenged whether the use of it and its price as a point of comparison was misleading.

The ASA upheld the complaint.

Rocks & Co stated that the high street example was used to show the difference in colour quality between the two products and that the presenter did not compare the price or product as a like-for-like comparison. However Rocks & Co also stated that they believed the quality of their product was superior to, and the price was lower than, the high street example featured, as their own products were sourced directly from mine to market without using a middleman.

The ASA considered that the presentation gave the overall impression that the rings were of an equivalent quality and that viewers would interpret the presenter’s statements when referring to the quality and price of the rings as being a direct and objective comparison rather than a statement of opinion. The ASA noted that various references to the price and quality of both rings and that that when the penultimate price reduction was applied, the presenter stated, “We are completely devaluing the size, the gem stone and trashing that price” and that the ring was “… not inferior in any kind of way”. The ASA considered that this implied that Rocks & Co’s ring was of an equivalent if not greater quality than the high street example and that a similar ring would be considerably more expensive in high street stores.

The ASA also noted that other differences between the rings were not highlighted. For example, the high street example was an 18ct gold ring, whereas the advertised product was a 9ct gold ring, which would account in part for the difference in the value of the rings. Therefore as a price comparison incorrectly implied that the products being sold were of equivalent quality to the high street product the ASA concluded that the ad was misleading.

Shopping channels are often subject to complaints due to the large number of claims made by their presenters when marketing products live on television. As it can be easy to exaggerate claims in live situations, shopping channels should take all steps to ensure that presenters are properly advised in relation to acceptable claims and that all items sold are accurately described and the claims independently verified.

ALCOHOL

10. The Gin Lab Ltd 15 June 2016

An ad seen on The Gin Lab’s Facebook page contained an image showing a banana and a gin and tonic with text stating “A banana 103 calories … Gin & Tonic 91 calories … Make an informed decision”. Further ads showed a flowchart “Guide to Happiness”, with optional answers leading to a statement “Have a G&T”, a black and white image with a woman drinking from a champagne glass with text saying “Gin a traditional English breakfast”, a Where’s Wallly image encouraging readers to find a hidden bottle of gin in the image, and a man in a Superman t-shirt in a hospital bed with a bottle of gin attached as an intravenous drip with text saying “the doctor told me to keep my spirits up”.

Complaint / Decision

Alcohol Concern challenged whether the first claim, which was a comparative nutrition claim, complied with the Code, and also as to whether the ad Alcohol Concern also challenged the other ads on the basis of suggesting alcohol was capable of changing mood, featuring a model who appeared under 18, being of appeal to under-18s and, in relation to the drip, showing alcohol being served in an irresponsible manner.

The ASA upheld all the complaints.

The Gin Lab Ltd removed all the ads, except for the first ad with the banana, stating that they did not agree with the complaint. However they did not provide any further explanation or supply any substantive response to the issues raised in the complaint.

The ASA considered that, as consumers would understand the graphic to be making a favourable comparison between the calorific content of a gin and tonic and that of a banana, the ad was making a “reduced energy” comparative nutrition claim. The ASA noted that the Regulation (EC) 1924/2006 on nutrition and health claims made on foods stated that claims must compare the difference in the claimed nutrient to a range of foods of the same category. Therefore, as the ASA did not consider that alcoholic-mixed drinks and fruits fall into the same food category, they concluded that the comparative nutrition claim was in breach of the Code.

As discussed above, nutritional claims must comply with Regulation (EC) 1924/2006. Marketers seeking to compare the nutritional differences between two or more foods can only make comparisons against foods in the same category, as determined by the Regulation. This is the case even where such a comparison is made for humorous purposes, as was the case in this adjudication.

The ASA upheld all the other aspects of the complaint, save for the appeal to the under 18s by reference to the Superman t-shirt. Although the ads were intended to be humorous, the ASA analysed each of the ads before concluding they were in breach of the code.

Although the outcome is not surprising, this does show the risk that tends to come with the use of social media, where ads that would otherwise be unlikely to be aired may get published. The use of humour in ads, particularly alcohol ads (and ads for other restricted products or services), must be considered with great care. Bodies such as Alcohol Concern are swift to make complaints if they consider there to be any breach of the codes and the ASA will generally take quite a strict approach with alcohol ads.

CLOTHING

11. Charles Tyrwhitt Shirts Ltd 22 June 2016

Three brochures for Charles Tyrwhitt Shirts included an offer code and URL relating to the promotion:

a. The first brochure was received as an insert in a national newspaper. The front cover stated “All shirts only £22.95 Normally £50 or £60 ... EXCLUSIVE OFFER for readers of THE GUARDIAN ... PLUS FREE DELIVERY NEXT 10 DAYS ONLY” and the claims (including those in ad (b)) were repeated on the inside pages. The ad featured an offer code and specific URL relating to the promotion.
b. The second brochure, for a similar but separate promotion, was received by mail. Text inside stated "How can I offer you £50 (or £60) shirts for only £22.95? ... SAVE UP TO £37 on every shirt - order within 10 days When you order in the next 10 days, our luxury shirts are only £22.95 each (normally £50 or £60)". Small print stated "Offer ends at midnight on 15th April 2016".
c. The third brochure was received in the same manner as ad (a), but on 18 March 2016.

Complaint / Decision

The ASA received three complaints:

1. Three complainants challenged whether the savings claims in all three ads, including "All shirts only £22.95 Normally £50 or £60" and "How can I offer you £50 (or £60) shirts for only £22.95? ... SAVE UP TO £37 on every shirt" were misleading and could be substantiated;

2. Two complainants challenged whether the statement in ad (a), that free delivery was available for the next 10 days, and the statement in ad (b), that the price offer was available for 10 days, were misleading and could be substantiated; and

3. Two complainants challenged whether the claim in ads (a) and (c), that the offer was exclusive to readers of The Guardian, was misleading and could be substantiated.

Charles Tyrwhitt stated that their shirts were sold in all their sales channels at £50 or £60 from 12 January to 25 February 2016. They advised that during this time they ran a consumer acquisition campaign and that the strikethrough prices on the promotional URL contained showed the price the customer would have paid had they visited a store or used the main website at that time.

Charles Tyrwhitt stated that as the products in the brochure were new, no prior sales history existed and they believed that the definition of 'normal' price needed to be considered in the context of the product lifespan. Charles Tyrwhitt also stated that ads detailed a special offer to a select group of customers and that the continuing sales through other channels at the higher prices meant that references to the 'normal' selling prices were not misleading.

Charles Tyrwhitt stated that the reference to 10 days in the ad in (a) was in reference to the free delivery aspect only. They confirmed that ad (b) contained an error with the end date and that this would be addressed in future. Charles Tyrwhitt also stated that the "exclusive offer" was the provision of free delivery alongside the lower prices and that no other marketing they ran at the time had the same promotional combination.

Although the ASA acknowledged that the catalogue featured new lines they considered consumers would understand “normally” to be reflective of an established selling price and that evidence should be held to substantiate that claim. The ASA also considered the small print to be insufficiently prominent to clarify that the catalogue was offering a discount against current selling prices through other channels, rather than previously-established usual prices. Further, the ASA noted that Charles Tyrwhitt had not demonstrated that the majority of sales made during the offer period were at the higher price and that the savings were therefore meaningful. The ASA therefore considered that the savings claims were misleading.

The ASA noted that the free delivery and promotional prices were available after the 10-day period had elapsed and as such the claims referring to this period were misleading. The ASA were also concerned by the use of phrases such as “in the next 10 days” as the ads did not carry a date and may not have been delivered on the date intended by the advertiser. Due to the absence of a clear starting date the ASA therefore concluded that the claims were misleading.

In relation to the exclusivity statement the ASA noted that the statement was general and not specifically linked to the lower prices or free delivery element of the ad. As such the ASA considered that consumers would not appreciate that only the free delivery aspect was exclusive and therefore concluded that the ad was misleading and breached the Code.

This adjudication is interesting as the ASA considered that even though the catalogue featured new lines, Charles Tyrwhitt should have been able to provide evidence that the savings claims were made against the ‘normal’ selling price. Consequently when making savings claims on new product lines, marketers should ensure that these are set against comparative products previously sold, or against other adequately prescribed formulae. It is always important, when seeking to rely on small print, to make sure that this is sufficiently prominent and that it always clarifies rather than contradicts any headline claim. The adjudication also illustrates the care which must be taken with regard to any time limited offers, to ensure clarity and accuracy.