ASA Adjudications Snapshot – August 2016

RETAIL

1. Oak Furniture Solutions 24 August 2016

The retailer’s website featured two products, one of which had large text on the product page stating “Camden Painted Pine and Ash 2 over 4 chest of drawers” and smaller text stating “Crafted from solid pine and ash… sturdy frame constructed from pine and ash” and “Wood Type Ash Pine”. The other contained similar wording for a wardrobe from the same range.

Complaint / Decision
The complainant, who understood that the products were made up largely of MDF, challenged whether the claim “Camden Painted Pine and Ash” was misleading.
The complaint was upheld.

In the ASA’s view, based on the descriptions on the advertiser’s website, customers would expect both the wardrobe and chest of drawers to be made of solid pine and ash wood, whereas it was clear from information provided by the advertiser that a significant amount of MDF was used in the production of both products. Although both descriptions referred to a solid frame of pine and ash, the average consumer would not, in fact, take this to mean that the rest of the product was made from other materials such as MDF. The ASA considered that it would have been appropriate and beneficial for consumers for the description “solid pine and MDF panels, with ash tops” to be included, but this was not the case.

The ASA considered that the presence of significant amounts of MDF in the products contradicted the impression created by the product names. The references to pine and ash were a selling point and, reflecting the relevant test under the Consumer Protection from Unfair Trading Regulations, could influence a consumer’s decision on whether or not to purchase one of the products. It was therefore concluded that the product names, and the omission of information as to the specific types of materials used, were misleading and in breach of the Code.

This decision highlights the importance of advertisers fully and comprehensively describing their products, including details on materials used, particularly where this is likely to influence a consumer to make a purchase. In this case, the advertiser was also unable to rely on small print as this contradicted, rather than qualified, the headline claims being made.

2. UK Cycle Centre Ltd 17 August 2016

The retailer’s website featured an advert, seen on 9 March 2016, for a cycle frame. The ‘Titus El-Guapo 29er Full Suspension 16” Frame’ was listed as on sale with the caption ‘SALE! £399.99’. Below the images and main caption was the text ‘£999.99’, which was struck through.

Complaint / Decision
The complainant challenged whether the savings claim was misleading and could be substantiated.

The ASA upheld the complaint. They considered that a consumer was likely to understand the struck-through text ‘£999.99’ as the price at which the retailer was most recently selling the item, and therefore that the savings claim represented a genuine saving against the retailer’s usual selling price.

It was understood by the ASA, however, that the advertiser had in fact not sold the frame before and this quoted price was merely intended to represent the RRP for the product. The only justification that the retailer gave the ASA was a single screenshot of the frame being offered for sale at £999.99 by a company that no longer sold the product. The ASA considered this was insufficient substantiation for an RRP claim and that the presentation of the information was unclear, particularly where there was no qualification or explanation as to how the figure had been reached.

Therefore the ASA upheld the complaint concluding that, as the advert wrongly gave the impression that the price reduction was based on the retailer’s former selling price, the savings claim was likely to mislead consumers.

This is yet another example of misleading pricing claims. Retailers must be very careful when presenting their retail price against other reference prices which show a saving on a previous price for the same product. This must always represent a genuine saving, usually either by reference to a higher price at which the same retailer was previously offering the product for sale, or a higher price offered by a competitor for the same product. These savings claims are often very influential in whether or not a consumer purchases a product, and should therefore always be as clear as possible and not mislead or confuse.

There is a particular difficulty with RRPs. The ASA tends to treat pricing claims by reference to RRPs very strictly and still requires advertisers to demonstrate that any advertised saving is a genuine saving.

HEALTH AND BEAUTY

3. A.R. Recruitment Consultancy Ltd t/a Soft Skills Courses 3 August 2016

A website, softskillscourses.com, for an online course provider promoted a “certified dietitian practitioner” course. The British Dietetic Association (“BDA”) challenged on the basis that the advert was misleading. Those who completed the course would not be able to use the legally protected term “dietitian” because use of the term required degree level education in dietetics and registration with the relevant health council.

Complaint / Decision
The complaint was upheld. Although the advertiser failed to engage in the complaints process, the ASA still investigated the claim in some detail. The ASA noted that the name of the online course was titled ‘certified dietician practitioner’, which the ASA considered was likely to be understood to mean that the course in question was accredited or approved by a professional body or regulator, and that the individual in concern had reached a prescribed level of training.

Further references to ‘clinical’, ‘neonatal’, and ‘paediatric practice’, the ASA believed, were likely to lead consumers to expect that they would be able to practise as a dietician involved in clinical work and advising on patients’ nutritional diets to treat medical conditions as a result of the course. The ASA confirmed that dieticians were regulated by the statutory regulator and the minimum requirement in terms of qualifications was a BSc Hons in Dietetics or a related scientific degree with a postgraduate degree in Dietetics; only those qualified in this way and registered with the regulator could use the title ‘dietician’.

Accordingly, Soft Skills Course, not being an approved provider of such qualifications, could not offer a course which would allow individuals to be qualified as a, or be entitled to use the title, ‘dietician’. An average consumer, however, would not understand this to be the case and therefore the advert was concluded as being misleading and in breach of the Code.

Although clearly an extreme example, this adjudication is a reminder to companies to ensure their products and services are described precisely and accurately, and not to use terminology which may amount to an overstatement. In many cases the wording used by advertisers is open to interpretation and differences in opinion.

4. O Care Ltd t/a Instant Whites 17 August 2016

The advertiser’s website for teeth whitening products promoted “Home of the Instant Whites 7 Day Whitening System… SAFE – EFFECTIVE – PEROXIDE FREE ¬… NOW For Home Teeth Whitening… 9 SHADES WHITER IN 7 DAYS”. The advert also featured a video on which the presenter stated “…our Instant Whites home range represents one of the world’s most fast acting whitening systems with visible results in less than 5 minutes”. The advert also included an image of the product packaging which included the text “Rapidly Removes Plaque and Surface Stains”.

Under the link “Clinical Study” the advert stated “7 Day Teeth Whitening System Clinical Study… An examiner blind, parallel group, randomized and controlled clinical study: Instant Whites Swabs clinically proven to Whiten teeth up to 9 shades with an average improvement of 6 in 7 days…”.

Complaint / Decision
The complainant challenged whether the claims made were misleading and capable of substantiation.

The ASA upheld the complaint in all respects.

The ASA, not surprisingly, considered that consumers were likely to interpret the claims “Rapidly Removes Plaque and Surface Stains” and the reference to “Visible results in less than 5 minutes” to mean that the product operated by actually removing plaque and stains, and that a noticeable result could be achieved in one 5-minute application. The ASA also considered that consumers would understand the claim “…clinically proven to Whiten teeth up to 9 shades… in 7 days” to mean that additional whitening would be achieved over the course of one week with regular application of the product and that it had been subject to independent testing by the advertiser or a third party on behalf of the advertiser.

The ASA assessed the clinical evidence provided by the advertiser, but noted that the control used in the trial was a competitor’s teeth whitening product of dissimilar design and that the comparative statistical analysis was not appropriate due to the lack of similarity between the products and as the claims made in the advert did not include any comparative claims. Finally, the ASA noted that the trial assessed teeth colour at the start of the trial, after one day, when the treatment had finished and one week post-treatment, and therefore it did not assess whether the advertiser’s product produced “visible results in less than 5 minutes” as claimed.

The ASA therefore concluded that they had not seen adequate evidence to substantiate any of the claims made. The advert was therefore misleading and in breach of the Code.

This case underlines the importance of advertisers being able to provide full and proper substantiation made for all claims in their adverts. This is particularly true in the health and beauty sector and special care should be taken with any clinical studies being relied upon. In doing so advertisers should consider carefully the nature of any substantiation in line with the claims actually being made for the product. For example, the advertiser in this case was seeking to rely on statistical analysis against a competitor product in the absence of any comparative claims made in the marketing material, as well as bold claims such as “less than 5 minutes” which also carried no substantiation.

Advertisers may find it useful to consult with the CTPA Guide to Advertising claims prepared in consultation with the ASA.

5. Medi-Direct International Ltd 3 August 2016

A television advert for pain®gone featured a presenter who stated “Have you heard about pain®gone? It’s a safe and simple device already used by over one million people worldwide”. Text on the screen, acting as a disclaimer, then stated “pain®gone is a registered trademark. The name doesn’t imply efficacy and the device hasn’t been clinically proven to relieve pain”. The advert concluded with a statement that consumers could ask their local pharmacist for the product. On screen-text throughout the duration of the advert featured the brand name of a recognisable high street pharmacy.

Complaint / Decision
The complainant challenged whether the advert misleadingly implied that the device could relieve pain.

The ASA upheld the complaint.

The ASA considered that the product name, along with the radiating ‘pain relief’ circles used in the advert and consumer testimonials, were likely to be interpreted by consumers to mean that the product could alleviate pain. Furthermore, the ASA believed that the clinical appearance of the product on shelves surrounded by boxes of medical products was reminiscent of other pain relief products and personal care products. That impression was additionally reinforced by the presence of a high street pharmacy for the duration of the advert, and the reference to “ask your local pharmacist…”. It was therefore considered by the ASA that the advert gave the impression that pain®gone could alleviate pain.

The advertiser sought to rely on the disclaimer used in the advert, without success. The ASA noted that the on-screen disclaimer text only appeared at the beginning of the advert and had far less prominence than the brand name pain®gone which appeared throughout. It was concluded, therefore, that the disclaimer was not sufficiently prominent to counter the overall impression created by the product name, pharmacy-style setting, product demonstration and testimonials, that the product could be used as a pain relief device.

For the above reasons the ASA concluded that the advert was misleading in breach of the Code.

Although not a surprising adjudication, this does reinforce the need to take care with product names which may be taken to be making a claim which cannot be substantiated, particularly when accompanied with imagery. Also, the use of a disclaimer will not work where it is effectively seeking to counter claims being made in the advert. In this adjudication, the ASA was relatively mild in its comments about the wording of the disclaimer, focusing instead on its lack of prominence. Where a disclaimer is being properly used, care should be taken to ensure it is sufficiently prominent and that readers will have enough time to read it in full.

MOTORING

6. Volkswagen Group UK Ltd 10 August 2016

The advertiser’s advert for the Audi R8 featured a car accelerating through its gears while the passing lights of a road were shown in the reflection of the driver’s pupil, which was shown contracting and dilating. This was accompanied with text stating “More focus, more drive. The all new Audi R8 V10 plus with carbon ceramic brakes”. The final shot of the advert was the car braking to a standstill on what appeared to be a race track.

Complaint / Decision
The complainant challenged the advert on the basis that it was irresponsible as it linked speed with excitement.

Despite the advertiser’s insistence that the advert did not link speed with excitement in any way, the ASA upheld the complaint.

The ASA accepted that any implication of speed or acceleration given by the sound from the car’s engine and the driver’s pupil changing size could be overlooked by accompanying visuals to the contrary. However, the visuals did not clearly demonstrate just how fast the car was going. In fact, several upward changes of gear could be heard which was likely to be interpreted as quick acceleration leading to more than moderate speed by the average consumer.

The ASA also noted the advertiser’s assertion that any focus on speed or acceleration in the advert was in the context of a focus on engineering and the car’s safety features. However, the ASA emphasised that advertisers should still take care to ensure the overall presentation of the advert was responsible. In their view, the overall impression of the advert was of a car being driven at speed (eventually coming to halt on a racetrack after sequences with prominent engine and gear noise) and that the impression given was not one of road safety in general, but that the R8 was equipped with brakes sufficient to handle the power and speed previously demonstrated.

Regarding the footage of a human pupil contracting and dilating, the ASA commented that whilst there was a range of factors which could cause pupils to dilate, consumers were generally unlikely to understand the fluctuations in pupil size as indicative of focus and concentration, or subsequently to link this to the strapline “More focus, more drive”. Instead, they were likely to interpret the sequences as an emotional response to the sounds of the car.

In light of the above the ASA concluded that the advert did indeed link speed with excitement, and that the advert was therefore in breach of the Code.

The decision of the ASA in this case acts as a reminder for advertisers to ensure responsible marketing at all times in their advertising material. This is the case even where an advert may seek to focus on safety –if there remains an impression of irresponsible behaviour (such as linking car speed with human excitement) the ASA tends to take a firm line, particularly where issues of responsible advertising are concerned.

FOOD & DRINK

7. Taywell Ice Creams Ltd 10 August 2016

(This ruling was published on the ASA website, and widely commented upon in the media, but has subsequently been removed from the ASA website).

The homepage of the website for Taywell Ice Creams contained the text “say NO to ADDED SUGAR”; when the cursor hovered above the text a pop-up box appeared stating “Refined Sugar Free Ice Cream”. Another block of text further down the page stated “WE SWEET REBELS PROMISE THAT OUR ICE CREAM WILL ALWAYS BE: … An Extra Source of Calcium and B Vitamins”.

Complaint / Decision
The complainant, a competitor, challenged the advert on the basis that the product did not meet the conditions of use to carry the relevant nutrition claims.

Despite Taywell’s arguments that the claims made were either permitted nutritional claims capable of substantiation, or merely represented company slogans, the ASA upheld the complaints.

The ASA referenced the EU Regulation on health and nutrition claims and the annex of permitted claims. The ASA concluded that the disputed claims “say no to added sugar”, “refined sugar free” and “source of calcium and B vitamins” were all nutrition claims and therefore required full and proper substantiation to be used in any adverts.

Upon review, the ASA found that the ice cream did in fact contain added products with sweetening properties (namely agave nectar and jiggery), contrary to the “no…added sugar” claim. Additionally, the ASA were not presented with any evidence that the ice cream complied with the claim that it was an additional source of calcium and B vitamins. The advertiser had therefore failed to provide substantiation for both of these nutrition claims.

Moreover, the claim “refined sugar free” was not one of the listed permitted claims. All the disputed claims were therefore found to be in breach of the Code.

This adjudication, which sparked some debate particularly on social media, is a reminder for advertisers in the food and drink sector to ensure that they do not make any implied as well as express nutrition claims in their adverts. The ASA adopts a strict approach to all adverts of this nature.

8. Dr Oetker (UK) Ltd 10 August 2016

A website and Facebook page advertised Dr Oetker’s Ristorante pizza. The website contained an image of a pizza alongside the claim “Best Pizzeria Taste at home. 9 out of 10 agree”. Smaller text below stated that the statement was generated via a survey of over 58,000 Ristorante buyers, in which 90% of participants agreed that Ristorante pizza had the best pizzeria taste. The Facebook page also included a photo of a pizza with a similar claim.

Complaint / Decision
Two Sisters Food Group Ltd (Goodfella’s Pizza) challenged whether the claim made in both adverts was misleading and could be substantiated.

The ASA upheld the complaint. They considered that consumers would infer from the claims made that 90% of people in a group representative of the general public who were in a position to compare Ristorante pizza with its competitor products had agreed that Ristorante pizza had the best taste.

However, Dr Oetker had instead based their claim on a self-report survey in which participants were asked to respond to the statement “Ristorante has the best pizzeria taste of any pizza I have purchased to cook at home”. To participate in the survey individuals had first to purchase a special Ristorante promotional pack, meaning that a disproportionate number of participants had previously purchased the advertiser’s pizza compared to a random or representative example. The survey participants were therefore likely to have viewed the advertiser’s pizza more favourably than a random or representative sample of the general public.

Further, the ASA noted that when participants were asked to respond to the statement in the survey, they were not presented with a list of competitor products nor were asked if they had ever tasted a competitor home-cooked pizza. The survey did not, therefore, include a mechanism to filter out those participants who had never tasted competitor products and therefore would not have been in a position to form a judgment on whether or not Ristorante pizza was the “Best Pizzeria Taste at home”.

The ASA noted that the advert detailed how the survey had been conducted, but concluded on the basis of the above deficiencies with the survey sample and methodology that the adverts and claims therein were misleading, in breach of the Code.

This adjudication shows that care needs to be taken when seeking to rely on any comparative survey, particularly self-report surveys, and to design and conduct any survey with care and not to suggest that the results are of wider application than they actually are. Small print explaining how the survey was conducted is not sufficient to make up for any deficiencies.

COMPUTERS AND TELECOMMUNICATIONS

9. The Carphone Warehouse Ltd 3 August 2016

Carphone Warehouse’s website included a claim stating “UK’S LOWEST PRICE^ WE CHECK SO YOU DON’T HAVE TO”. Small print below the headline claim explained that this excluded online retailers without a high street presence and did not apply to promotional prices. Further text placed next to certain handsets read “AT THE BEST PRICE” and “AT THE BEST PRICE WE’VE CHECKED”. Finally, text at the bottom of the page stated “If you find an upgrade or pay monthly deal for less at O2, EE or Vodafone, we’ll match it and pay the equivalent of your first month’s standard line rental”.

Complaint / Decision
Hutchison 3G (Three Mobile) challenged whether the claims “UK’S LOWEST PRICE” and “AT THE BEST PRICE” were misleading and could be substantiated, as they understood the claims were based on comparison with only a selection of competitors and it was not sufficiently clear what particular prices and products had been compared.

The ASA upheld both complaints.

In relation to the first claim, the ASA considered that consumers would understand “UK’S LOWEST PRICE” to mean that the advertised phones were the cheapest on the market and could not be purchased from any other retailer across the UK for a cheaper price. The small print below the main claim was insufficient to counteract the overall impression that Carphone Warehouse had compared all UK retailers and their prices, including promotional prices, to ensure the price they offered was the lowest in the UK. If anything the small print only served to contradict the first headline claim. For these reasons the claim was likely to mislead consumers.

Regarding the second claim, “AT THE BEST PRICE”, the ASA considered that this would be interpreted by consumers to mean that Carphone Warehouse offered the lowest price for the products advertised. However, the ASA understood that the claim was instead intended to be a price promise, rather than a claim that their prices were the lowest in the UK. The ASA considered that claims offering the “best” or “lowest” prices needed to beat, and not merely match, a competitor price, and additionally that marketers needed to have a price monitoring and adjustment policy in place to ensure their prices were always the lowest. Carphone Warehouse did not satisfy either of these elements.

Further, the ASA noted that the small print stated that the price promise only applied to three competitors. It considered, however, that this was an insufficiently prominent warning to consumers of the limitations of the offer, and a point which contradicted the overall impression that Carphone Warehouse prices were cheaper than all other retailers. Given this, and due to the lack of evidence to substantiate the claim that the retailer offered the best price, the second claim was also found to be misleading.

This adjudication illustrates the importance of ensuring that small print properly clarifies, and does not contradict, the main headline claim. It also underlines the test needed to make “best” and “lowest” price claims in marketing material.

HOUSEHOLD

10. Simba Sleep Ltd 24 August 2016

The manufacturer’s website featured a statement “Why Choose Simba… Tried and Tested Our Hybrid ® mattress was developed with The Sleep To Live Institute who’ve profiled over 10m people. That’s why we know it’s the best…” Simba Sleep’s Facebook page also contained a similar statement, with the additional statement “We tested our mattresses through extensive research together with The Sleep To Live Institute…measuring 180 million body profile data points…”.

Complaint / Decision
The complainant challenged whether the claims ‘Tried and Tested…developed with The Sleep To Live Institute who’ve profiled over 10m people’ and ‘We tested our mattresses through extensive research…involving more than 10million people’ were misleading and capable of substantiation.

The ASA upheld the complaint. The ASA considered that the statement ‘We tested our mattresses through extensive research together with The Sleep To Live Institute involving more than 10 million people’ would be taken by the public to mean that Simba Sleep had created the mattress in active collaboration with the Institute in question, and that it had been tested on 10 million participants.

However, the reality was that the Institute only allowed Simba Sleep to use their methodology to determine best mattress suits for different body types, rather than having any input into its production. Further, the mattress had not been tested on actual participants but rather it had been put through a diagnostic testing system which identified suitability based on data covering over 10 million body profiles. The ASA therefore concluded that Simba Sleep had not provided adequate substantiation to support the claims made on either their website or Facebook page.

This decision is a reminder for advertisers to carefully consider all claims made in their marketing material, both implied and express, to ensure they are capable of substantiation, not exaggerated, and not prone to being interpreted in a fashion wider than might be intended.

11. Automobile Association Developments Ltd 3 August 2016

A website for the AA promoted their boiler installation service. The advert contained text stating “We save customers an average of £828 on a boiler installation*, compared to British Gas”. Small text beneath the headline claim expanded on this, stating “*Based on 43 surveys completed through independent research June-October 2015, with a like-for-like boiler make/model, including any VAT, discounts and offers. Some variation in optional extras and warranty – Read more details”.

A direct mailing which contained similar claims as above, and included an invitation for consumers to “Get your quote now – don’t miss your chance to save this winter” (with similarly worded small text explaining the basis of the surveys carried out).

Complaint / Decision
British Gas New Heating Ltd challenged whether the savings claim made in the advert could be substantiated.

The AA relied upon some third party research, and the footnote which sought to clarify the headline claims made. However, the ASA upheld the complaint.

The ASA considered that consumers were likely to understand from the claims made on the website and in the mailshot that they could save an average of £828 on the overall cost of a boiler installation compared to an equivalent service with British Gas. The qualification in small text did not assist the AA.

The ASA noted some deficiencies with the survey which the AA sought to rely upon in making their headline claims. Many of the quotes provided contained extras for one provider but did not contain its equivalent feature, even where this was available, for the other provider. There was no proper like with like comparisons, despite the implications in the advert. The quotations from British Gas, for example, tended to include extras more frequently than the AA equivalent.

Furthermore, the qualification “Some variation in optional extras and warranty” was deemed to be insufficient to counteract the misleading initial impression that the overall installation was like for like, and so contradicted it. The adverts were therefore both found to be misleading and in breach of the Code.

This adjudication is an example of the importance of ensuring that any qualification in small print must clarify and not contradict the headline claim, as well as the care needed generally with price comparisons and savings claims. It also underlines that the basis of any comparative claim must be clear, whether the comparison is on a like-for-like basis or otherwise.

OTHER

12. Rational Entertainment Enterprises Ltd 24 August 2016

A website, betstars.uk, featured a banner on an account holder’s home page with text that stated “Money back up to £/$/ €10 if your first spin and bet loses. Bet now…”.

Complaint / Decision
The complainant, who had placed a losing bet with the advertiser on the basis of the promotional banner, questioned whether the claim made by the betting company was misleading as, he believed, it failed to make clear that stakes placed on losing bets were returned to players in the form of free bets (and not by way of a cash return).

The ASA upheld the complaint and agreed that consumers were likely to interpret the offer to mean that if they placed a bet worth £10, they would receive their original stake back in actual cash, rather than a free bet of the same value as their original stake.

Although the terms and conditions clarified that ‘money back’ was in the form of a free bet, and not cash, the ASA considered that this was a significant term and likely to affect consumers’ understanding of the offer and whether or not they decided to bet with the company. Therefore, the ASA concluded that the clarification should have been included in the advert itself and that the failure to do so was likely to mislead consumers. The advert breached the Code.

This adjudication is a reminder for advertisers to ensure that significant terms made in their marketing material are always made very clear to consumers, even in situations where a particular practice may be relatively common in a particular industry.

13. The Health Lottery ELM Ltd 24 August 2016

A television advert for the Health Lottery stated in the voice-over “There’s never been a better time to play the Health Lottery… and with over £100million handed out in prize money, there are more winners too”. The advert included a testimonial from a previous winner which referenced Lotto.

Complaint / Decision
The complainant believed this was a comparison between the Health Lottery and Lotto winners, which was not capable of substantiation.

Despite the advertiser’s argument that the claim was a reference to an increase in the number of draws it held per week, the evidence it produced as to amounts paid out in prize money to date, and the advertiser’s insistence that the claim “more winners” partially referred to the number of health charities it contributed towards, the ASA upheld the complaint in question.

The ASA considered it was unclear from the advert what the claim “there are more winners too” referred to. In the absence of further information or detail to explain the context of the claim, the ASA considered that consumers were likely to interpret a claim which included the word “more” to be a comparison of some kind. The reference to Lotto in a testimonial earlier in the advert meant that viewers were likely to understand the claim “there are more winners too” to be a comparison about the number of winners between the two competitor lotteries.

Accordingly, the Health Lottery needed produce relevant comparative data showing the number of their historic winners and the same data for past Lotto winners. The Health Lottery had not been able to provide the ASA with any evidence to demonstrate that they had more winners than Lotto, and therefore the advert was found to be misleading in breach of the Code.

This adjudication shows the importance of taking care with claims which may be interpreted as comparative claims. The ASA will expect full and proper substantiation even in situations where the comparison is not overly made.