ASA Adjudications Snapshot – November 2016

This summary provides a selection of November’s most interesting ASA adjudications and highlights the key issues considered in those rulings. In this month’s edition there is a recurring theme of responsible advertising, with five rulings examining the question of whether or not an advertiser has encouraged unsafe or otherwise irresponsible behaviour through its marketing materials. Only one of these rulings, involving a mobile app allowing users to identify the presence of speed cameras, resulted in a finding by the ASA that the advertiser has breached the Code. However, this is clearly something that is being looked at very closely by the Regulator.

This month also features the usual selection of rulings which assess whether or not an advertiser can provide full and proper substantiation for claims made in its marketing communications. Two adverts from the health and beauty industry take centre stage in November’s publication, with some interesting comments from the ASA on consumer surveys and clinical trials.

ADJUDICATIONS

RETAIL

1. Centrale Shopping Centre Ltd – 2 November 2016 – A promotion on the advertiser’s social media page was found to breach the Code due to a lack of transparency as to the identity of winners, and whether the prizes were indeed ever awarded.

2. Nike European Operations Netherlands B.V. – 2 November 2016 – A television advert for the sports company did not breach the Code as the stunt in question was clearly carried out under the supervision of professionals in test centre conditions, and therefore did not encourage copycat performances which could threaten human life or safety.

HEALTH AND BEAUTY

3. Procter & Gamble (Health & Beauty Care) Ltd – 16 November 2016 – An advert for a new brand of toothpaste was not found to be misleading in breach of the Code as the advertiser was able to provide full and proper substantiation by way of a thorough clinical study for the headline claim used.

4. Space NK Ltd – 9 November 2016 – An email advert for a range of suncream was considered not to be misleading as the advertiser was able to adduce evidence to substantiate the cream’s claimed UV-radiation protective qualities.

TRAVEL AND MOTORING

5. Tickets House Ltd – 30 November 2016 – An advert for flights to Zimbabwe breached the Code as the advertiser could not provide substantiation to prove that the quoted prices were genuine, nor had it presented the prices in a way to suggest any applicable limitations of availability.

FOOD & DRINK

6. Beverage Brands (UK) Ltd – 2 November 2016 – An advert on WKD’s Twitter page marketing their alcoholic product was considered not to have any particular appeal to those under the age of 18.

7. Heineken UK Ltd – 2 November 2016 – An advert for an alcoholic drink featuring the consumption of beer in different scenarios after rescues did not breach the Code as it did not suggest or imply that alcohol could improve one’s self-confidence, mood or physical condition.

8. HJ Heinz Foods UK Ltd – 23 November 2016 – An advert for baked beans encouraging consumers to recreate a song using tins of the opened, and potentially sharp, product encouraged or condoned behaviour that prejudiced the health or safety of consumers.

TELECOMMUNICATIONS

9. JT Group Ltd – 16 November 2016 – Marketing material referencing a consumer speed ‘challenge’ was determined by the ASA to be misleading as the test used a flawed methodology which allowed results to be distorted in favour of the advertiser.

OTHER

10. Sygic AS – 9 November 2016 – An advert for an app purporting to encourage safe driving by alerting drivers to the presence of speed cameras was found to encourage the unsafe behaviour of driving above the speed limit but slowing to avoid detection when necessary.

11. MTV Networks Europe – 9 November 2016 – An advert for a new film breached the Code as it showed young people performing dangerous stunts in the context of a social media challenge, which would likely encourage behaviour which risked human health or safety.

12. Universal Music TV – 23 November 2016 – An advert for a CD showing drivers and passengers in vehicles singing and dancing along to the music was compliant with the Code as it did not show drivers to be distracted or in anything but full control of their vehicles.

13. Smart Pension Ltd – 23 November 2016 – A letter advertising a company’s professional services breached the Code as it was not readily identifiable as marketing material and misleadingly suggested that it was an official communication.

RETAIL

1. Centrale Shopping Centre Ltd – 2 November 2016

Two promotions on the advertiser’s Facebook page contained details of competitions where consumers could “WIN A £500 GIFT CARD!” or “An Apple watch!”. The adverts explained that consumers simply needed to download the advertiser’s app to enter the competition and be in with a chance of winning.

Complaint / Decision

The complainant, who understood that details of the winners of the competition had not been published, challenged whether the promotions had been administered fairly.

Although the advertiser did not engage with the regulator, the ASA upheld the complaint.

The ASA understood that consumers had to download the advertiser’s app to be in with a chance of winning both competitions. However, there appeared to be no evidence to demonstrate that a winner was awarded the prizes, or even that a draw had taken place, and therefore that the competition was genuine. The ASA therefore considered that the promotion had not been conducted fairly, concluding that the promotion breached the Code.

This adjudication is similar to the decision reached in The Social Discount Network ruling of September 2015, where the ASA also found the promotion to be in breach of the Code due to the absence of evidence to demonstrate that the winners had entered the competition according to the stated terms and conditions.

Both rulings are a reminder for advertisers of the importance of exercising fairness and transparency when running competitions, and in closely following the CAP rules on promotions. Clear terms of conditions for entry should be made available, a comprehensive list of all entrants maintained, and an announcement of winners published after a draw has been made. Doing so will minimise the risk of the ASA finding that the promotion has not been administered fairly.

2. Nike European Operations Netherlands B.V. – 2 November 2016

A television advert for Nike, cleared by Clearcast with no timing restriction, featured two high profile basketball players in a crash test centre. The voice-over stated “Zach, what are you doing?”, as one of the players knelt on the roof of a moving van wearing a helmet and replied “Watch this”. The car then crashed into a barrier and propelled the basketball player from the car as he caught a ball in the air thrown backwards by the other basketball player.

Complaint / Decision

Five viewers challenged the advert on the basis that it was likely to condone or encourage behaviour that prejudiced health and safety, particularly amongst the under 18s, and that it was unsuitable for broadcast at a time when those under the age of 18 might be watching.

Accepting the advertiser’s submissions that the advert was clearly a stunt and therefore did not encourage unsafe re-enactment, the ASA did not uphold the complaint.

The ASA noted that the two characters would be readily identifiable by viewers as professional basketball players, and that the stunt being performed would be seen as exaggerated and implausible, rather than a realistic demonstration of a professional basketball player’s abilities. Viewers would be unlikely, therefore, to see the stunt as something to aspire to, or try to recreate, particularly as the venue was clearly a testing centre with participants wearing safety goggles and helmets.

In general, whilst the ASA accepted that people, including children, watching the advert may well be impressed with the basketball skills on show, these would be unlikely to lead them to attempt to emulate the stunt depicted due to the unfamiliar setting and the fact that the advert was clearly a professional stunt. There was, therefore, no encouragement for viewers to carry out a dangerous activity or risk their health or safety, and accordingly the complaint was not upheld.

This ruling shows the importance of staying on the right side of the line when presenting a potentially dangerous activity in marketing materials. Stunts and extreme sports are becoming increasingly popular for use in advertising, but care should always be taken to present such footage in a way which does not depict stunts being carried out by members of the public, particularly children, or in such a way which could otherwise encourage copycat performances. This can be contrasted with the HJ Heinz Foods ruling later in this month’s summary, where the ASA ruled that an advert encouraging consumers to recreate a drumming song with an empty tin can in the familiar setting of the home or workplace posed a safety risk and therefore breached the Code.

When in doubt, use of clear taglines such as ‘All stunts performed by / under the supervision of professionals’ and ‘Warning – do not attempt to recreate the stunts in this advert at home’ can be useful to ensure that marketing is not considered to be irresponsible. The risk of emulation is always an issue that will be very carefully considered by the ASA.

HEALTH AND BEAUTY

3. Procter & Gamble (Health & Beauty Care) Ltd – 16 November 2016

A television advert for Oral B’s new toothpaste featured a voice-over stating “New Oral B 3D White Luxe Perfection. It removes up to 100% of surface stains in 3 days”. During the voiceover graphics were used to show before and after images of teeth, with overlaid text re-stating the headline claims.

Complaint / Decision

A complaint was made on the basis that the advert exaggerated the product’s efficacy, and as to whether the headline claim was misleading and could be substantiated.

The complaint was not upheld.

The ASA considered that the claim “Removes up to 100% of surface stains in 3 days” contained no ambiguity and was a straightforward objective claim requiring substantiation.

The advertiser provided the ASA with a clinical study, on which the ASA took expert advice. It was noted that the study, the objective of which was to assess the effectiveness of the product for removing surface stains, used a sample population of 50 healthy adults. This sample group was broken into two parts – one using the advertiser’s toothpaste, and the other receiving professional tooth cleaning. Analysis was carried out on the subjects using the toothpaste, and those having their teeth professionally cleaned, and comparisons then made between these forms of cleaning and the ‘baseline’. The advertiser considered that this provided adequate substantiation for the headline claim made.

In terms of the adequacy of the study, the ASA determined that the survey design was satisfactory. It had been thoroughly randomised, contained a positive control and parallel group, and utilised a ‘blind’ examiner over a period of two weeks. Moreover, the numbers used were adequate, and sufficient for the purpose of detecting significant differences in outcomes.

The ASA did note, however, that the claim had been embedded in a report which was presented as an abstract at the 2016 meeting of the American Association for Dental Research, and was subsequently published as such in a scientific journal. The ASA commented that although the abstract form of study would have been subject to a degree of peer review, it did not receive the level of scrutiny that it would have done if submitted in full. This was a slight concern for the ASA.

Nevertheless, the ASA considered that an industry-recognised method had been used to assess the level of stain on the surfaces of the test teeth, and that the statistical analysis for the results was sufficient. The results showed that the test group that had been given the advertiser’s toothpaste exhibited a significant difference in stain reduction when compared to the baseline, and, in terms of percentage stain reduction, the test group exhibited 100% reduction of stain at 3 and 14 days after use.

It was concluded that the advertiser had provided full and proper substantiation to show that their new toothpaste could indeed remove surface stains by up to 100% within three days, and therefore the advert did not breach the Code.

This ruling shows just how bold claims can be made, provided you have adequate substantiation and, where appropriate, use of proper clinical studies of adequate number and duration, which are properly randomised, blind and controlled. As always, the survey should be directly relevant to the claim made. If a clinical survey fails on any of these fronts the advert is likely to be found to be misleading.

4. Space NK Ltd – 9 November 2016

An email advert from the advertiser, with the subject line “Which suncream suits you best?” stated in the body of the email “WHICH SUNCREAM? Browse our pick of pioneering UV protectors, and find the formula that suits you best”. Below this was an image of a range of products, with brief descriptions such as “moderate sun”, and invitations to purchase the products.

Complaint / Decision

The complainant challenged whether the description of the products as “suncream” and the implications that they would provide UV protection were misleading and could be substantiated.

The complaint was not upheld.

The ASA began by considering that consumers would understand references to “suncream” and “UV protectors” to mean that all products featured in the advert were capable of providing adequate protection against the sun’s UV radiation. The ASA also understood there to be relevant international standards specifying methods for establishing the levels of the two different types of UV radiation (namely UVA and UVB) protection and that, for a product offering protection against the sun, consumers would generally expect testing to have been carried out to this standard or a reasonable equivalent.

The advertiser put forward five trials to substantiate the marketing of their products as suncream. The first of these compared skin darkening when using two different products, and no product at all. However, whilst the study concluded that a darkening of the skin was observed more readily using one product over the other, it did not demonstrate that this represented meaningful protection from UVA or UVB radiation, and it also did not state compliance with any specific industry standards in assessing sun protection.

The next five trials were more thorough and adequate, and therefore accepted by the ASA. All trials clearly stated compliance with industry standards and examined the cream either in terms of its water resistant qualities, or over set periods of time. The trials all concluded that the creams in concern had SPF ratings between 17 and 19, with acceptable levels of deviation. All trials were carried out using simultaneous testing of a standard reference product and were suitably calibrated.

On the basis of the trials provided to them, the ASA considered that the products featured in the marketing communication had been subject to testing at nationally or internationally recognised standards and accordingly could all safely be said to offer meaningful protection against UVB radiation (with one of the products offering both UVB and UVA protection). It therefore considered that the claims “UV protectors” and “suncream” had been fully and properly substantiated and concluded that the advert did not breach the Code.

This ruling reinforces the importance of well thought-out, well-constructed and far-reaching trials and studies provided to the ASA when seeking to substantiate claims. In cases such as this, comprehensive and thorough trials should be a priority for advertiser companies, both in terms of time and money expended, when putting together marketing materials.

TRAVEL AND MOTORING

5. Tickets House Ltd t/a Ethiopian Airlines Enterprise – 30 November 2016

An advert on the advertiser’s website, EthiopiansAirlines.co.uk, stated “FLIGHT TO HARARE… Economy Class: London to Harare £505 Per Person”. An additional flight was priced at “£515 Per Person”.

Complaint / Decision

The complainant, who attempted to book a flight at the advertised prices, challenged whether the advertiser was able to offer the flights at the stated prices.

The complaint was upheld.

The ASA understood that the advertiser, unconnected with the official Ethiopian Airlines, was a travel agent and therefore did not have the control over prices of flights that an actual airline would have. Nevertheless, the claims made would likely be understood by consumers to mean that, at the time the advert was seen, a flight could be booked to Harare for the stated prices. It would also be understood that these prices would be inclusive of any additional costs, unless these were optional extras.

The advertiser failed to provide the ASA with any substantiation sufficient to demonstrate that the quoted prices were genuine, most notably because the invoices that had been provided all post-dated the time at which the advert was seen. Given the dynamic nature of flight prices, the advert should also have included information on the possibility of fare changes and the limitations on availability. Moreover, the ASA commented that prices should have been described as “From £X’, with information so that consumers could find the most up-to-date prices. These were clear failings on the part of the advertiser.

The ASA did note that the advertiser’s website contained the assertion that “Fares are Subject To Availability”. However, this was presented to consumers in small print at the end of each web page, and was therefore not sufficiently prominent to be clearly noted by potential customers. For these reasons, the ASA concluded that consumers had not been sufficiently alerted to the limitations of availability of the offer to avoid being misled, and therefore the advert breached the Code.

As a side point, the ASA commented that it was also unclear from the advert whether the quoted prices included non-optional taxes, duties, fees or charges applicable to all or most buyers, as is required by the CAP Code. The advertiser did not provide any evidence to demonstrate that this was the case, including the invoices presented, resulting in an additional breach of the Code.

This ruling acts as a reminder for advertisers to strongly considering employing the pricing claim ‘from £X in cases involving dynamic or ever-fluctuating pricing, instead of stating a fixed amount for a product. This may be relevant for businesses such as travel agents, or traders of commodities, for example, who may experience changes in price on a daily, if not hourly, basis. However, when doing so advertisers should also be alive to the long-standing ASA rule of thumb that at least 10% of the products or services advertised should usually be available at the “from” or “up to” price. A failure to provide substantiation to this effect will usually lead to a finding that the advertiser has breached the Code.

FOOD & DRINK

6. Beverage Brands (UK) Ltd t/a WKD – 2 November 2016

A post on the WKD official Twitter feed stated “Our WKD tech team are trying to make your emoji dreams a reality”. Below this message appeared a phone showing an exchange of instant messages. The first said “Gonna be a gr8 nite”, followed by three small ‘emoji’ blue bottles. The response included an image of some similarly designed red bottles, and another ‘emoji’ with tears of joy.

Complaint / Decision

The Youth Alcohol Advertising Council challenged whether the advert was irresponsible as the use of the emojis was likely to have particular appeal with people under the age of 18.

The ASA did not uphold the complaint.

The ASA considered whether the post was likely to be of particular appeal to those under the age of 18, especially by reflecting or being associated with youth culture. The ASA acknowledged the advertiser’s comment that the content of their Twitter page was targeted at those who declared their accounts as belonging to someone over the age of 18. Nevertheless, the ASA maintained that this did not give the advertiser a ‘free pass’ as to the content on its page – it must still not be drafted in a way to appeal to those under the age of 18.

With regard to the emojis themselves, the ASA considered that these cartoon-like images were likely to have appeal across many age groups, including the under-18s. However, the ASA did not consider that emojis were likely to have a particularly strong appeal to under-18s by reflecting or being associated with youth culture, and therefore they concluded that the advert did not breach the Code.

This decision affirms just how fine the line is between a subject matter of marketing which has real and particular appeal to the under 18s, compared to one which has a general appeal to people of all ages. Alcohol adverts and promotions are consistently the subject of scrutiny by pressure groups, such as the Youth Alcohol Advertising Council and Alcohol Concern, so alcohol advertisers can always anticipate that complaints will be made. The ASA also keeps alcohol advertising under strict and constant review.

This ruling also underlines the ever-increasing use of Twitter and other forms of social media for advertising purposes. Whilst these forms of advertising are now favoured by the industry, care needs to be taken, particularly with the marketing of products such as alcohol and gambling.

7. Heineken UK Ltd – 2 November 2016

A YouTube advert for Kronenbourg featured Eric Cantona, a famous former footballer, playing a character who, with two dogs, delivered beer to those who had experienced unfortunate mishaps. The character said “Here in Alsace, live the most intelligent dogs in the world… they deliver Kronenbourg to the most deserving”. The advert then featured several individuals, including a monk and a postman, being rescued from difficult situations and given the alcohol. In the next scene a floundering actor on stage was given Kronenbourg by the same dogs after his performance, whereupon he was met with a standing ovation from the audience. In the final scene, Eric Cantona’s character stated “Man’s best friend delivering one of man’s greatest achievements. A taste supreme”.

Complaint / Decision

The Youth Alcohol Advertising Council challenged the advert on the basis that it implied that alcohol could enhance confidence and had therapeutic qualities, capable of changing mood, physical condition or behaviour.

The ASA did not uphold the complaint.

The ASA first addressed the issue of whether the advert implied that the drink gave the actor on stage more confidence, noting that the actor did not receive or consume any alcohol before his performance, and it was only after he had finished his scene that he was delivered the drink. Moreover, the audience at the performance reacted positively to his performance even before the delivery of the alcohol, therefore giving no impression that the alcohol enhanced his popularity or gave him the confidence to perform.

The ASA then looked at whether or not the advert implied that alcohol was capable of changing one’s mood, physical condition or behaviour. The ASA noted from the two rescue scenes involving the monk and the postman that, although both characters were extremely happy after receiving the beer, any improvement in their moods could safely be put down to the fact that they had been rescued from an unpleasant situation, and had received an unexpected gift. There was no suggestion in the advert that it was the consumption of beer, rather than the act of being rescued, that had improved their mood, and therefore the ASA did not find the advert to be in breach of the Code.

This ruling highlights to advertisers the importance of avoiding all suggestions that the consumption of alcohol can have a transformative effect on consumers and their behaviour, for example by increasing their self-esteem or confidence. If an advert does show alcohol being consumed, it is vital that this is not seen to cause a transformative effect of any nature.

Often this is an issue of timing; in this particular case the point at which the alcohol was consumed meant that the marketing materials did not breach the Code. The character seen on stage, for example, did not drink any of the beer until after receiving a standing ovation. However, it is not always this clear cut and advertisers should also note the ruling in Mast-Jägermeister from July 2014. In this case, the ASA found the advert to be in breach of the Code despite the fact that the consumption of alcohol took place at the end of the advert after the conclusion of the excited activities. In the view of the ASA there was still a clear association between the alcohol and tough, daring behaviour, and therefore the advert was irresponsible and could not be aired again in current form.

8. HJ Heinz Foods UK Ltd – 2 November 2016

A television advert featured a selection of children, teenagers and adults using empty or full tins of baked beans to drum out the rhythm of a song. Towards the end of the advert on screen-text stated “Learn the #CanSong”.

Complaint / Decision

A total of nine complainants challenged (i) whether the advert encouraged unsafe practice, and (ii) whether the advert featured behaviour that could be dangerous for children to emulate.

Both complaints were upheld by the ASA.

In relation to the first complaint, the ASA noted that to play the Can Song, tins of baked beans, both closed and opened (as advised by the advertiser) were tapped on their bottom, top and sides to create different sounds. Whilst the actors performing the song on the advert were proficient, it was considered by the ASA that viewers who were encouraged to learn the song would be less able to perform the manoeuvres required and accordingly it was possible that mistakes could be made. It was possible that fingers or a hand could be inserted into an open tin, resulting in an increased risk of cuts.

Against the backdrop of this risk of harm, the ASA acknowledged the advertiser’s on-screen text which referred consumers to its social media site where instructions on preparing a can to replicate the song could be found. However, the ASA did not consider that the on-screen text, which briefly referenced the social media page and the relevant hashtag, was sufficient to alert consumers to the advice to make the tin safely to play the song. In the absence of sufficiently clear information to this effect, the ASA concluded that the advert condoned or encouraged behaviour that prejudiced health or safety and breached the Code.

Turning to the second complaint, the ASA noted that the advert featured actors of varying ages who played the Can Song, and actively encouraged viewers to do the same. Although the advert did not have any appeal with young children, the ASA considered that it was likely to appeal to a wide age range, including older children for whom recreating the song would be relatively straightforward. As noted above, the advertiser sought to explain that the cans used in the advert had been made safe to handle, but that was not clear from the advert. The ASA concluded that the actions shown could therefore be dangerous for children to emulate, which also breached the Code.

This ruling, which attracted huge media attention due to the popularity of the product and the perceived risk of harm involved, is the latest ASA decision to discuss the theme of emulation. Unlike other marketing materials where the risk of copycat performances was unforeseen or somewhat unexpected, this marketing communication actively encouraged users to recreate an activity performed in the advert, which perhaps partly explains the intense scrutiny given to it by the ASA.

The ruling reinforces the importance of clearly highlighting any disclaimers, conditions, limitations and, most importantly, any safety recommendations in marketing materials. Simple measures such as applying tape to the edge of a sharp tin may seem obvious to advertisers, but care should be taken to emphasise these measures or recommendations to consumers in a prominent fashion, even if advertisers believe this may detract from the advert in any way. Advertisers need to be alert to any risks and do their best to reduce these – a failure to do so can result in whole advertising campaigns being scrapped, at great expense to advertising companies.

TELECOMMUNICATIONS

9. JT Group Ltd – 16 November 2016

Two adverts and a poster for the advertiser’s mobile network made use of the headline claims “Officially Guernsey’s FASTEST NETWORK as tested by you” and “It’s OFFICIAL, your testing shows that JT is Guernsey’s fastest network”. The second advert explained that the advertiser had asked consumers to test the speed of its new network, and those of other local networks, during a 7 week challenge, and that the results showed that the advertiser’s network was the fastest. All three marketing materials invited the public to visit JT Group’s website to view the results.

Complaint / Decision

Two competitor telecommunications companies challenged whether the claim “Guernsey’s fastest network” was misleading and could be substantiated.

The ASA upheld the complaint.

It was noted by the ASA that, alongside the headline claims, all of the adverts included information regarding the ‘challenge’ that had taken place and how the results had been collected. This made it clear to anyone viewing the marketing material that, based on tests carried out by members of the community, JT purported to be the fastest mobile operator in Guernsey in terms of download speeds.

The ASA understood that the headline claim was based on the results of a speed test challenge in 2016, when the advertiser invited locals, regardless of their operator, to submit speed tests using a third party app which recorded individual speeds at specific times and locations. Prizes were awarded to certain submitting individuals. The ASA noted, however, that individuals were likely to conduct multiple speed tests in a location and at a time likely to achieve a high speed to enhance their chances of winning a prize. When taking into account entrants who submitted results multiple times, the total number of customers participating for the two competitor companies, Airtel and Sure, was 86 out of a total of 446 entrants. The ASA considered this to be evidence of a clear and unacceptable distortion of the results in favour of JT Group.

Moreover, the ASA noted that a significant number of the results did not include a precise location. For those that did, the tests were not evenly spread across Guernsey but instead confined to the east, where speed test results were at their highest. As the headline claims referred to the island of Guernsey as a whole, the tests carried out predominantly in one part of the island were not considered representative of the speeds achieved across all networks on the entire island. For the above reasons the ASA did not consider that the headline claims had been substantiated and therefore considered that the advert was likely to mislead.

Advertisers should take great care when basing headline claims around consumer surveys and tests. Companies of all sizes and descriptions should ensure that the methodology used in such tests is not flawed and does not allow, for example, multiple submissions to be made on behalf of one company. In this case, even though the referenced basis for the claims were sufficient, there were serious issues with the way the advertiser had conducted the testing and this led to a finding that the Code had been breached. The advertiser should, for example, have tightened up their approach to measuring speeds based on consumer feedback, and made the process less incentive-based. It is important to always demonstrate fair process and transparency in marketing communications.

OTHER

10. Sygic AS – 9 November 2016

A sponsored advert on Facebook for the advertiser stated “Real-time alerts of mobile radar traps make you drive more safely. Enjoy it for free.” The advert included a video of a steering wheel in a moving car with a flashing 50km speed sign in the right-hand corner, and a speedometer which showed the car was travelling at 80km/h. As the car drove nearer to the camera, the car’s speed on the speedometer dropped until it reached 50km/h.

Complaint / Decision

The complainant challenged whether the advert encouraged unsafe or irresponsible driving.

The ASA upheld the complaint.

The ASA, noting that the advert no longer appeared on Facebook, acknowledged that the app would alert drivers to the speed limit in areas covered by speed cameras and that drivers were therefore, in theory, more likely to drive responsibly by keeping their speed within the legal limit.

The advert did, however, feature a driver slowing down from a speed significantly higher than the limit for the area as the vehicle approached a speed camera. It was clear from the video that, whilst the driver was within the speed limit some 50 metres from the camera, he was driving well in excess of the limit up until this point, despite the fact that the road was a busy three-lane route where the speed limit would be well known to the majority of drivers.

On this basis, the ASA considered that the overall impression of the video was that, because the app warned the driver of the approaching speed camera, the driver had reduced his or her excessive speed to avoid detection, rather than using the app as an aid for responsible driving within the legal speed limit at all times. In this way, the ASA considered that the app was providing drivers with the means consistently to breach the speed limit but to avoid detection through awareness of the placement of active cameras. The conclusion, therefore, was that the video was likely to encourage unsafe or irresponsible driving.

This ruling demonstrates how the ASA in any assessment will always approach their investigations on the basis of what they consider the perception of the average consumer to be, rather than the intention of the advertiser. The intention of the advertiser is irrelevant. If the advert encourages irresponsible behaviour it will likely be considered to breach the Code, immaterial of the stated aim of the marketing material as expressed by the advertiser.

11. MTV Networks Europe – 9 November 2016

A television advert shown after 9pm for the film ‘Nerve’ featured a voiceover which introduced the film and asked viewers “Are you ready to play?”. The advert invited viewers to go to the advertiser’s website to ‘choose a dare’ and enter a competition it was running. The voiceover was accompanied by daring scenes from the film, including a man on a skateboard holding onto a moving car, a group of men jumping into the sea from a cliff, a man hanging from a crane, a woman using a ladder to cross between two high buildings, someone falling from a crane, and a man lying between train tracks as the train passed over him.

Complaint / Decision

The complainant challenged whether the advert condoned or encouraged dangerous practices.

The ASA upheld the complaint.

The ASA noted that the featured footage showed young adults engaging in a number of highly dangerous activities, most of which were presented in a way to suggest that they had been filmed on mobile phones or shared on social media. Several scenes were shot as if the viewer were looking through the screen of a smartphone, including a shot with social media-type graphics and a woman swiping the word ‘ACCEPT’. The ASA considered that this gave the advert a general theme of young people daring each other, via social media, to video themselves undertaking dangerous behaviour as a form of ‘challenge’. The ASA took the view that this tapped into an ongoing youth culture trend of young people challenging each other, such as the recent viral food challenge, ‘Cinnamon Challenge’.

The ASA accepted that the competition referred to in the voiceover did not require participants actually to engage in any of the behaviour featured in the advert, and that some of the footage did show the negative consequences of such behaviour. Nevertheless, the ASA considered that the overall effect of the advert, particularly when considered against the popularity of social media challenges in youth culture, was likely to encourage dangerous behaviour which prejudiced the health or safety of viewers. The advert was therefore in breach of the Code.

This ruling is a timely reminder for advertisers to take heed of popular trends or forms of entertainment, particularly in youth culture, when putting together marketing materials. Where a trend such as the social challenge referred to in this ruling is particularly popular or prevalent, the ASA will likely assume there to be an increased risk of copycat performances, rendering the advert irresponsible.

Another significant aspect of this ruling are the comments from the ASA on scheduling; whilst the advert was already cleared for broadcast at 9pm onwards – after the UK Watershed – the ASA concluded that the risk of harm to teenagers and young adults meant it was unsuitable for broadcast at any time.

12. Universal Music TV – 9 November 2016

A television advert promoted a new CD and featured shots of a number of drivers and passengers singing and dancing along to the album. Three drivers were shown to lift their hands from the steering wheel and two further drivers were seen to glance at passengers in their car while driving.

Complaint / Decision

The complainant objected to the advert, arguing that it encouraged dangerous driving and was therefore irresponsible.

The complaint was not upheld by the ASA.

The ASA noted that multiple passengers and drivers were shown throughout the advert singing and dancing along to the music, however the drivers’ movements were not considered to be particularly vigorous and it appeared that their focus remained on the road ahead throughout. The ASA also noted that several of the drivers glanced at passengers, but commented that these glances were very brief and therefore did not threaten their safety, or the safety of their passengers.

Moreover, there were indeed three occasions where drivers were shown lifting their hands off the wheel, however these were only momentary, and on two occasions the vehicles in question were clearly stationary.

The ASA therefore concluded that the drivers were, in general, not shown to be distracted by the passengers and appeared to be in full control of their vehicles. The advert accordingly did not encourage dangerous or irresponsible driving, and could remain in its current form.

There have been a number of previous adjudications for products not directly connected with, for example, cars or bicycles, where the ASA has taken a strong line wherever they considered the advert might show behaviour that might be considered unsafe. This issue was reviewed in the Diet Coke June 2009 ruling featuring singer Duffy, in which the ASA dismissed the complaints brought but issued a general warning to advertisers not to promote irresponsible behaviour particularly at times when children were likely to be watching. These can be contrasted with the June 2008 advert for Sure Girl deodorant which was found to be irresponsible by the ASA for featuring young women dancing in the back of a van without wearing seatbelts.

This latest adjudication shows that the ASA do take these issues very seriously, even in the case of really lighthearted adverts. The ASA will always be concerned about the risk of emulating dangerous behaviour.

13. Smart Pension Ltd – 23 November 2016

A direct mailing for workplace pensions was sent in an envelope which carried the text “Automatic enrolment – every employer will need to act – Important communications about new regulations”. Below this was website address ‘www.AutoEnrolment.co.uk’, and several logos labelled ‘Smart Pension’ and ‘automatic enrolment’. The letter inside contained wording including “WARNING, you may be subject to fines if you qualify and are non-compliant. Make sure you are aware of your deadline”, and “Smart Pension – a no fuss, zero cost Workplace Pension… with Smart Pension you won’t fall into the trap of many other businesses… the UK’s fastest, most secure workplace pension platform”. The letter itself contained ‘automatic enrolment’ and ‘HM Government’ logos.

Complaint / Decision

The complainant challenged the advert on the basis that they did not believe it to be obviously identifiable as a marketing communication, and that it misleadingly suggested it was an official communication and that all companies needed to visit the advertiser’s website to ensure compliance.

The ASA upheld the complaints.

The ASA acknowledged the advertiser’s willingness to make changes to the advert. They also accepted that the letter inside the envelope made it relatively clear that it was a commercial communication, but considered that in order not to mislead it should be immediately clear to consumers if an envelope contained an advert, even before opening it.

The ASA noted that the envelope bore the official ‘automatic enrolment’ logo (which they had permission to use), which was far more prominent than the advertiser’s own logo, and positioned in a way which was very similar to envelopes used by The Pensions Regulator. The use of the advertiser’s company name and logo were considered insufficient to counteract the misleading overall impression that the mailing contained an official communication. Furthermore, the envelope and letter inside implied that all companies needed to visit the Smart Pension website to ensure compliance with pensions regulations. This was not the case as the company was merely offering an optional service. These messages were the most prominent aspects of the communication and likely to be noticed above anything else.

On the basis of the above, the ASA concluded that the marketing material breached the Code.

This ruling against the advertiser in concern follows a similar approach to the decision in the Hyperoptic Ltd ruling from our September edition. Both rulings should act as a warning for advertisers to take care when seeking to use clever or innovative marketing materials that these do not stray into territory where they could be considered to be an official notice or communication from a public body or regulator, or otherwise are not readily identifiable by the public as an advertisement.