ASA Adjudications Snapshot – July 2016

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

This month includes an interesting decision on a breakfast cereal, where the complaint was upheld for a failure properly to deal with nutrition and health claims.

This month also features a number of cases where adverts were found by the ASA not to have full or adequate substantiation for the claims made. In some cases advertisers were able to provide adequate substantiation from studies and research. However, in other cases advertisers were unable to provide adequate substantiation for their claims and to satisfy the ASA, leading to declarations of adverts being misleading and in breach of the Code. There are a series of key takeaway points for advertisers to be mindful of when putting together marketing material for their products or services.

RETAIL

1. EuroFlorist Europe BV 6 July 2016 – images of flowers on a website were held to not be representative of the product received, and thus misleading and in breach of the Code.

2. Prestige Gifting Ltd 13 July 2016 – certain complaints regarding images used to advertise products, and ‘unsubstantiated’ company reviews, were upheld and found to be misleading to the public.

HEALTH AND BEAUTY

3. Home Shopping Mall Ltd 6 July 2016 – claims made in the advertisement of a fat loss device were found to be misleading and an example of irresponsible marketing by the ASA.

4. Nuby UK LLP 27 July 2016 – efficacy claims in an advertisement for a new brand of ‘all natural’ toothpaste were held to be misleading and incapable of full substantiation by the ASA.

MOTORING

5. BMW (UK) Ltd 13 July 2016 – unsubstantiated and misleading claims made in relation to a car’s new headlamp technology were found to be in breach of the Code.

FOOD & DRINK

6. Kellogg Marketing and Sales Company (UK) Ltd 20 July 2016 – several complaints regarding health claims made by the cereal manufacturer were upheld due to a lack of specific authorised health statements accompanying the claims made.

MOTORING

7. Tesla Motors Ltd 20 July 2016 – two bold claims made by the manufacturer of a new car were held by the ASA to be capable of substantiation and were thus not misleading or in breach of the Code.

COMPUTERS AND TELECOMMUNICATIONS

8. British Telecommunications plc 27 July 2016 – claims made regarding the size of the company’s network and the level of funds it had invested were both capable of full substantiation and were thus not misleading.

RETAIL

1. EuroFlorist Europe BV 6 July 2016

The home page for eflorist.co.uk featured an image of a bouquet named ‘Parasol’. This image was linked to the product page, which featured an image of a bouquet with lilies, carnations, roses and gerberas in a glass vase. Text below the image stated “Our expert florist will personally create your bouquet using the finest and freshest pink, lavender and mauve stems. Your flowers will be hand chosen by the Florist… the image shown is for illustration purposes only, and may vary”. Smaller text further down the page stated “Seasonal availability of certain individual flowers may vary from those illustrated. Products ordered do not include a vase, flower basket or container unless otherwise stated. Our florists may substitute flowers and sundries for a suitable alternative, similar in style, quality and value depending on availability”.

Complaint / Decision

The complainant, who believed that the image was not representative of the product received, challenged whether the ad was misleading.

The ASA upheld the complaint.

EuroFlorist stated that the disclaimer below the product image made it clear that the images were for illustration purposes only, that the content could vary, and that only the colours of the flowers (pink, lilac and mauve) were set. They therefore believed that the florist had met the design’s order requirements.

The ASA noted that, although the description did not include any claims regarding the specific flowers included, the flowers featured in the image were clearly discernible and included lilies, roses, carnations and gerberas. The ASA also noted that the disclaimer below the image lacked prominence. In this context, the ASA considered that consumers would expect that while the product received might not be exactly as depicted, the image was an accurate representation of what they would receive in terms of volume, colours and flowers included. Further, given the emphasis on the fact that a local florist would create the bouquet, the ASA considered that consumers would expect the bouquet to arrive pre-arranged, ready to be placed in a vase or container.

The ASA understood that the bouquet was received flat-packed and had to be arranged by the recipient. The ASA noted that it was less voluminous than the bouquet featured in the ad, had significantly fewer flowers and did not any roses, lilies or carnations. Further, some of the substitute flowers were white and purple, contrary to the colour scheme depicted in the ad. The ASA therefore considered that the image was not an accurate representation of the advertised product and concluded that it was misleading.

Marketers should ensure that products featured in ads are representative of the product consumers will actually receive. The ASA will also take a strict approach to ads which seek to exaggerate the size of the product, as seen last month in the Nomad Foods Europe Ltd ruling, or where the components which make up the product, such as flowers in this case, do not match the description provided in the ad.

Advertisers who market products which differ slightly between each unit should take care when constructing the description of such products and clearly draw consumer attention to any variations that might occur. This case was clearly an extreme example of the website image not reflecting the product delivered, but it is a good reminder not only of ensuring that website images are not misleading but also that any disclaimers must be sufficiently prominent and will not excuse delivery of any product which is substantially different from the product advertised.

2. Prestige Gifting Ltd t/a Prestige Flowers 13 July 2016

The website prestigeflowers.co.uk, an online floral delivery service, featured a photograph of the “I Love You £29.99” bouquet. The ad stated, “A beautiful arrangement with red roses and stargazer lilies hand tied specially [sic] for your Valentine … complimented [sic] with forest fresh greens”. Another bouquet labelled “Pure Delight £29.99” featured a photograph of the product and included the description “Pure Delight is a delicate collection of elegant blooms perfect for any occasion. The heavenly scent of the Lily is softened with luxurious Avalanche Roses and accents of soft yellow blossoms”. The website also included a Mothers’ Day bouquet with the description “send the Best [sic] Mum bouquet to say thank you with a lovely bunch of roses, lilies, germini flowers and carnations with splashes of gypsophila and a hand woven heart”.

The website also featured the text “Order by 9pm for Next Day”. An additional box included the text “review centre” which featured five gold stars.

Complaint / Decision

Three separate complaints were brought:

1. Three complainants, who believed the photographs of the products did not accurately represent the products received, challenged whether they were misleading;
2. Two complainants, who understood negative reviews had been posted online, challenged whether the inclusion of the five gold stars was misleading and could be substantiated; and
3. One complainant, who did not receive their order the day after their flowers were ordered, challenged whether the claim “Order by 9pm for Next Day*” was misleading and could be substantiated.

The ASA upheld complaints 1 and 2, but did not uphold complaint 3.

Prestige Flowers explained that the customer had been sent the wrong size of bouquet as a result of a sizing error. They stated that due to the large volume of orders there would inevitably be a number of mistakes, but that this was a rare occurrence. They also stated that the five gold stars were not included in the review centre box, but in another section of their website. Prestige Flowers stated that around 98% of their products were delivered by the next day. They provided data from three delivery companies which they believed showed that they had a high successful delivery rate, even during busy periods such as Valentine’s and Mothers’ day.

The ASA considered that the bouquets received by consumers should resemble, as closely as possible, the images displayed. The ASA noted that in the images provided by the complainants all the bouquets were less voluminous and had significantly fewer flowers than advertised and in some cases, an advertised flower or similar alternative was missing altogether. As the bouquets did not resemble the products displayed in the ads the ASA therefore concluded the ads were misleading.

The ASA noted that the ad had featured five gold stars in the “review centre” box. However, the box in question in fact showed only four out of five stars. As such the ASA again concluded that the ad was misleading.

With regards to the delivery claim, the ASA assessed the delivery data provided by Prestige Flowers, which spanned several months, and noted that a very high proportion of deliveries were received the next day. The ASA therefore considered that the data was sufficient evidence to show that they were generally able to deliver the next day in the vast majority of cases and so did not uphold the third complaint.

Companies should be careful that images used and uploaded to websites to promote particular products bear a close resemblance to the actual product which will be received by the customer; this is not only in relation to the quantity but also the quality of the product. Whilst in this individual case the ASA did not uphold the complaint with regards to the next day delivery promise, companies should be cautious about any delivery promises they make in relation to products – the company should have full substantiation to demonstrate an ability to deliver on time at least in the vast majority of cases.

HEALTH AND BEAUTY

3. Home Shopping Mall Ltd 6 July 2016

The ad consisted of a 30-minute teleshopping ad for Home Shopping Mall’s SlimFreezer ‘cold lipolysis’ device. Throughout, the ad made a number of robust claims about the device’s efficacy for fat loss, such as “FREEZE YOUR FAT”, “COLD LIPOLYSIS Results in 6 weeks”, “Cold lipolysis is recognised as an effective non-surgical alternative to liposuction”. The ad featured a number of testimonials and ‘before and after’ photos which included claims that individuals had lost upwards of 17% body fat using the device. During one sequence the voice-over stated, “So stop spending your time and money on fad diets, pills, creams and countless other products that just might not work”, accompanied by footage which included a woman who disinterestedly played with a bowl of salad and another woman in a gym firstly on a treadmill then doing sit-ups.

Complaint / Decision

The complainant challenged whether:

1. the claims that the product could aid fat loss were misleading and could be substantiated; and
2. the ad was irresponsible because it discouraged exercise and healthy diets.

The ASA upheld both complaints.

Home Shopping Mall stated that it was widely accepted in the scientific world that cold lipolysis killed fat cells and that diet and exercise could shrink the size of fat cell, but could not totally remove them. Home Shopping Mall stated that SlimFreezer delivered temperatures in a range of -6 to -8°C to a localised area and sought to rely on a six-week study conducted on 22 participants in 2012 with significant results. Home Shopping Mall also claimed that SlimFreezer was not marketed as a cure for obesity or as a weight loss product. They stated that the shots of the woman struggling in the gym were included to complement various claims relating to the effect of diet and exercise on fat cells. Home Shopping Mall also stated that the shot of the women with a bowl of salad was an example of a “fad diet” as only lettuce was shown. They added that throughout the ad they included on-screen text such as “Eat a healthy diet and exercise for optimal results” to promote a healthy lifestyle.

The ASA noted a number of deficiencies with the 2012 study provided by Home Shopping Mall. The study only contained a small group of participants, did not contain a control group, and did not take into account participants’ diet and exercise regimes or address the possibility of bias. Further, the results were not subjected to statistical analysis and therefore it was not possible to determine whether the result were statistically significant. Therefore, as the study was not sufficient substantiation for the stated or implied claims, the ASA concluded that the advert was misleading.

The ASA therefore considered that the overall impression created by the ad was that a healthy diet and exercise could not prevent the accumulation of fat and thus discouraged both of these lifestyle choices, breaching the Code in respect of responsible advertising.

The decision in this complaint is not surprising in light of the extreme claims being made, but does illustrate the importance of not appearing to denigrate aspects of healthy living – in this case by the references to exercise and healthy food. The decision also underlines the high level of substantiation that the ASA require for bold claims, particularly reliance on properly conducted scientific tests.

4. Nuby UK LLP 6 July 2016

A website for Nuby, a baby products retailer, seen on 19 March 2016 contained text promoting “Nuby All Natural Toddler Training Toothpaste and Toothbrush – Blue/Green”. The advert stated “Nuby’s All Natural Toddler Training Toothpaste with Citroganix* and Toothbrush is the perfect combination for cleaning your baby’s teeth… the training toothpaste helps prevent tooth decay and is 99.99% effective against oral bacteria. The All Natural paste is Dentist approved, Fluoride Free and is safe to swallow… *Citroganix is made from all natural ingredients found in the skin of citrus fruit and is anti-bacterial and anti-microbial”.

Complaint / Decision

The complainant challenged whether or not the ingredients contained in the product could be effective in preventing tooth decay, and whether the efficacy claims in the ad were misleading and could be substantiated.

The ASA upheld the complaint.

Nuby UK LLP stated that their patented Citroganix formula reduced bacteria by 99.99%, which helped to prevent tooth decay. They also referred to various articles on the NHS Choices website and the website for National Institute of Dental and Craniofacial Research in the US, both of which explained the cause of tooth decay and stated that antibacterial methods, such as the use of Citroganix, were known as effective measures in preventing tooth decay.

Further, Nuby UK LLP pointed to advice on the Mayo Clinic website which referred to antibacterial treatments in the prevention of tooth decay, and provided a certificate of analysis of a test measuring the antimicrobial activity of the product on bacteria. Nuby also pointed to an NHS Choices article which advised readers to cut down on sugary or starchy food and drinks; their product was sugar free and sugar-alcohol free and on this basis they stated it helped to prevent tooth decay. Finally, Nuby argued that research had shown that the mechanical act of brushing helped to prevent tooth decay. They reasoned that their product was a ‘training’ toothpaste with a flavour children would enjoy, and thus the product would help to create a good dental hygiene regimen amongst children and thus help prevent tooth decay.

The ASA noted that the product did not contain fluoride which is generally accepted as an ingredient effective against dental caries, and thus they expected to see a body of evidence to demonstrate the effectiveness of the ingredient Citroganix in helping to prevent dental caries amongst toddlers, including, for example, studies and scientific literature on the chemical properties of Citroganix and its use in the prevention of tooth decay. The ASA also understood the number of different factors which can influence dental decay and thus considered that the claims should have also been supported by trials of sufficient duration on human participants to establish the true effectiveness of the product.

The ASA also assessed the test put forward by Nuby to support their claim, which was carried out under laboratory conditions. Whilst the analysis showed ‘satisfactory’ antimicrobial activity, normal brushing conditions such as the length of time brushing, the presence of saliva, and rinsing were not replicated. Similarly, the test was not ‘blinded’ or controlled, and the most common strain of bacteria that produced the acids which cause tooth decay had not been included.

Finally, it was noted that the study by the Department of Periodontology at the Academic Center for Dentistry in Amsterdam which was also referred to by Nuby could not be fully assessed. The study did not contain a comparison of fluoride-based toothpaste and fluoride-free toothpaste, or relate to the efficacy of the Training Toothpaste or the ingredient Citroganix in tooth decay prevention. For the reasons listed above the ASA considered that the evidence provided was not adequate to substantiate the claims that the toothpaste helped to prevent tooth decay amongst toddlers and that it was ‘99.99% effective against oral bacteria’. It was therefore concluded that the efficacy claims in the ad were misleading.

This is another case where the outcome was not surprising in light of the bold claims being made, and it demonstrates where the ASA will require clear and full substantiation for any such claims being made. Companies should take care when relying on studies and reports that they follow appropriate protocols, take into account the relevant specifications of the product in concern (e.g. fluoride-free toothpaste and the use of Citroganix), and test all specifications fully and in suitable conditions (giving appropriate consideration to any relevant ‘outside factors’).

MOTORING

5. BMW (UK) Ltd 13 July 2016

A radio ad for the BMW 1 Series car with high-beam assist technology stated "Oncoming traffic is never dazzled and you can keep your hands on the wheel and your eyes on the road".

Complaint / Decision

The complainant challenged whether the claim "Oncoming traffic is never dazzled" was misleading and could be substantiated.

BMW explained that the system detected oncoming traffic up to 1,000 metres away and traffic ahead up to 400 metres. These measurements related to straight distances as required by EC regulations. BMW stated that at 400 metres (the minimum distance at which the technology responded) the typical BMW driving light would be below one illuminance range, a level which technically could not be described as being dazzling (defined in the Oxford dictionary as ‘a strong light bright enough so that you cannot see for a short period of time’) and therefore other drivers would never be dazzled. BMW advised that if a vehicle approached form a curve it was possible that there could be a delay of approximately 600 milliseconds to one second, which BMW did not believe was long enough for incoming traffic to be dazzled.

The ASA upheld the complaint.

The ASA considered that consumers were likely to interpret the claim “oncoming traffic is never dazzled” as an absolute claim, meaning that the technology in the car ensured that oncoming drivers would never be dazzled under any circumstances. The ASA understood that there would be circumstances where the sensor would detect oncoming traffic approaching from around a bend at much shorter distances than the ones described above. The ASA considered that a full second of beam light could potentially dazzle an oncoming driver at short distances, such as on a sharp bend. The ASA therefore considered that BMW’s absolute claim had not been substantiated and was misleading, and was thus in breach of the Code.

The determination again highlights the need to take care when making absolute claims such as “oncoming traffic is never dazzled” as this will often be interpreted narrowly by the ASA and advertisers will be expected to provide clear substantiation. Here, BMW unsuccessfully attempted to argue that the claim was made on the basis that the system was quick and consistent to response, whereas human response times might not be as reliable due to various factors. The ASA, however, disagreed with this interpretation.

FOOD & DRINK

6. Kellogg Marketing and Sales Company (UK) Ltd 20 July 2016

The complaint related to two ads for Special K products:

(a) A TV ad for Special K porridge featured various scenes of ingredients. The voice-over stated, "Special K. Full of deliciousness. Full of colour. And now, with pomegranate, pumpkin seeds and raspberries. Our new five grain super porridge is full of goodness." On-screen text stated, "Special K porridge contains vitamin B2 which contributes to the maintenance of normal skin"; and

(b) Claims on the website specialk.co.uk focused on promoting the Special K range stated, "All Special K flakes are made with our unique Nutri K™ recipe making a nutritious and delicious start to your day".

Complaint / Decision

The complainant challenged the claims, which were subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the BCAP and CAP Codes:

1. "Our new five grain super porridge is full of goodness" in ad (a); and
2. "Our unique Nutri K™ recipe mak[es] a nutritious ... start to your day" in ad (b).

The ASA upheld both complaints.

Kellogg understood the first claim to be a general health claim for the purposes of the Regulation. They argued that as the claim was accompanied by a specific authorised health claim: “…contains vitamin B2 which contributes to the maintenance of normal skin", they had complied with the Code. With regards to the second claim, Kellogg did not believe that the use of the word “nutritious” in the ad was a health claim. Kellogg explained that the reference to “nutritious” related to the Nutri K™ flake’s ingredients, which contained multiple B vitamins, Vitamin D, folic acid, zinc and iron. They stated that there was a substantial amount of information on their website about the Nutri K™ recipe and the health benefits of the component nutrients of the Nutri K™ flake.

Whilst the ASA acknowledged that the general health claim “full of goodness” was accompanied by a specific authorised claim, they noted that such claims should be made next to or immediately following the general health claim. The ASA observed that the specific authorised claim was shown on screen but disappeared before the general health claim was stated in the voice-over and therefore considered that the first claim breached the Code.

Due to the lack of further information to help consumers understand the context of the claim, the ASA considered that consumers were likely to interpret the second claim as one which implied that Kellogg’s Special K was “nutritious” because of its nutritional content and was, therefore, “good for you”. Consequently, the ASA considered the reference to the general health benefits of the product to the overall health of consumers and should therefore have been accompanied by a specific authorised health claim. As consumers had to click through a further two pages to reach the dedicated page for Nutri K™ flakes which contained a specific authorised health claim alongside a list of nutrients found in the flakes, the ASA concluded that the advert breached the Code.

This decision affirms that full regard should be had to the Nutrition and Health Claims Regulation, and the importance of ensuring that specific authorised claims are not only included but are placed next to, or immediately after, general health claims. Where these are not sufficiently connected there is a chance that the ASA will conclude that the claim is in breach of the Code. Care should also be taken when describing any discrete health or health-related benefits of products so that these are not taken to allude to the benefits of the product for the overall health of consumers, which in turn will require a specific authorised health claim.

MOTORING

7. Tesla Motors Ltd 20 July 2016

A page headed “Supercharger” on the website for Tesla Motors included the claim “The World’s Fastest Charging Station”. A page linked from the home page via text which stated “ORDER YOUR MODEL S” included the claims “£48,500 After Incentives & Petrol Savings … -£6,500 Estimated petrol & tax savings over 5 years (learn more)”. The text “(learn more)” was linked to small print further down the web page which stated “Petrol Savings … The average person drives approximately 12,000 miles and spends around £1,600 on petrol per year. In comparison, the cost of electricity to power Model S over the same distance is ten times lower. Over the five year average length of car ownership, that’s approximately £6,000 in petrol savings. We’ve assumed a fuel economy of 39.2 miles per gallon for a comparable petrol powered car.”

Complaint / Decision

Ecotricity Group Ltd challenged whether the following claims were misleading and could be substantiated:

(1) “The World’s Fastest Charging Station”; and

(2) “Over the five year average length of car ownership, that’s approximately £6,000 in petrol savings”.

The ASA did not uphold either complaint.

Tesla advised that, apart from their own ‘Superchargers’, there were only three standard connectors for electric vehicle (EV) charging stations developed by car manufacturers to be used with their car. Tesla stated that the Supercharger could deliver 120 kW of power to batteries of compatible EVs, which was higher than the maximum power that could be delivered by any of the other three chargers.

In relation to the assumption that Model S owners would use Tesla’s Supercharger network approximately 10% of the time, Tesla said that because their cars were ‘connected vehicles’ they received data from each vehicle that had been sold, including the total amount of energy charged into each vehicle. Tesla stated that while the percentage of energy delivered to their vehicles via the Supercharger network worldwide was 11%, the figure for the UK was even higher at 19% and as such they considered the 10% figure conservative. Tesla also provided the sources for the figures on which the other assumptions were based.

The ASA noted that the Tesla Model S could accept 120 kW of power, whereas the maximum that the other EVs could accept was 60 kW. As higher power correlated to faster charging times, the ASA therefore understood that the Tesla Supercharger was faster at charging compatible EVs than any other charger used worldwide and concluded that the claim had been substantiated.

The ASA considered that the sources used by Tesla to support their assumptions were robust and used relevant data and the most recent figures. With regards to the assumption relating to how often Model S owners would use Tesla’s Supercharger network, the ASA noted that the 10% figure in the calculation significantly underestimated how much Tesla drivers were likely to use the Supercharger network, given that the UK figure was 19%. The ASA therefore concluded that the second claim had also been substantiated and was not misleading.

In this case we see the benefits of having well founded, conclusive and ‘robust’ substantiation for any assertions or claims made in adverts. Tesla’s sources for making the contested claims used relevant data and the most recent figures. Advertisers must, however, always take care to ensure where they rely on small print that this does only qualify and not contradict the claims made. Moreover, where claims are made that make comparisons with identifiable competitor products, the ASA expects advertisers to give enough information in the advert about the comparison and to include a signpost in the advert to that information if it is not clear in the advert itself.

COMPUTERS AND TELECOMMUNICATIONS

8. British Telecommunications plc 27 July 2016

A press ad for BT, seen in February 2016, was headed "A few truths about Britain's broadband". It presented a number of claims regarding Britain's digital economy and BT's role under the headings "The Fiction" and "The Facts". Claims under the heading "The Facts" included "... Openreach's network is open to over 500 companies and their customers on equal terms" and "BT has invested over £20 billion in communications infrastructure over the last decade, including £10.5bn in Openreach's network”.

Complaint / Decision

Broadband for Rural Devon & Somerset (B4RDS) challenged whether the claims made were misleading and could be substantiated.

The ASA did not uphold either complaint.

BT stated that the claim did not imply that third parties had access to all aspects of Openreach’s infrastructure – only that over 500 companies could access the network on equal terms. BT noted that their agreement with Ofcom, which established Openreach as a functionally separate division of the BT Group, did not require Openreach to make all aspects of its infrastructure available to third parties, but required Openreach to treat all communications providers equally. BT further noted that their published capital expenditure figures for Openreach over the previous ten years totalled just over £10.5 billion.

The ASA noted that BT’s agreement with Ofcom required Openreach to treat all ISPs equally by providing them with an equivalent service. As the ASA understood that this was the case they concluded that the claim was not misleading.

With regards to the second complaint the ASA noted that the relevant annual reports confirmed that Openreach had invested just over £10.5 billion in “Capital expenditure” over the preceding ten years and therefore concluded that the claim had been substantiated.

This decision shows the importance of using precise claims which can be comprehensively substantiated. Unlike some of the other determinations in this edition, the ASA were happy that BT had appropriate substantiation in relation to all claims made in its advert and thus there was no breach. Care must, however, always be taken in relation to implied claims which can be a risk for advertisers, particularly in this area.