ASA Adjudications Snapshot – December 2016

This summary provides a selection of December’s most interesting ASA adjudications and highlights the key issues considered in those rulings. In this month’s edition there are a number of adjudications which focus on headline claims made in the health and beauty sector. In three separate cases, the ASA concluded that the claims used by the advertiser were misleading as they had not been based upon clinical evidence or consumer surveys that were sufficiently robust, comprehensive or transparent in nature, and therefore did not provide the advertiser with full and proper substantiation.

This month also features two cases where advertisements for horror-themed attractions or films were found to breach the Code as they had not been scheduled appropriately so as to avoid causing fear or distress to children who came across the marketing materials, despite approval being sought from the relevant clearance and scheduling authorities.

RETAIL

1. Time Inc (UK) Ltd – 21 December 2016 – An advert for a magazine subscription was found to be misleading in breach of the Code as the terms and conditions did not make it sufficiently clear that the price of the subscription would increase after the initial period of 12 months.

HEALTH AND BEAUTY

2. Organic Burst World S.A. – 7 December 2016 – Two adverts for food products and supplements purporting to be “superfoods” breached the Code as they contained general health claims which were not accompanied by specific authorised health claims.

3. Avon Cosmetics Ltd – 7 December 2016 – An advert for a hair and body wash product breached the Code by referring to ‘normal’ prices when the product had, in fact, been sold for a cheaper price in preceding months.

4. BioEnergiser Ltd – 14 December 2016 – An advert for a product promising to provide back pain relief was found to breach the Code as the clinical studies provided were not capable of fully or properly substantiating the headline claims made.

5. Tristar Products (UK) Ltd – 7 December 2016 – An advert for a slimming garment breached the Code as the images used to demonstrate the product were distorted to exaggerate the slimming effect to an implausible level.

6. Omega Pharma Ltd – 21 December 2016 – A press advert for an eczema cream breached the Code as the advertiser was unable to provide full and proper substantiation for the headline claims made, notably including a ‘breakthrough product’ claim.

TELECOMMUNICATIONS

7. EE Ltd – 7 December 2016 – An advertiser breached the Code in relation to part of its marketing communications after failing to make the details of a historic speed test sufficiently clear to consumers when presenting its headline claim on the speed of its network.

OTHER

8. Over Farm Retail Ltd – 7 December 2016 – A billboard poster positioned outside a station for a themed attraction park breached the Code as its scenes of horror were considered likely to cause distress to young children who saw the billboard.

9. This Is Global Ltd – 9 December 2016 – A radio advert for a horror film which would likely frighten those under the age of 16 did not breach the Code as the advert had been appropriately scheduled at a time when few children below the age of 16 would be listening.

RETAIL

1. Time Inc (UK) Ltd – 21 December 2016

The advertiser’s website promoted a subscription to Woman & Home magazine, offering the print edition to consumers as either “Card/PayPal £32.49 for 1 year / 12 issues” or “Direct Debit £29.99 per year / 12 issues”.

Complaint / Decision

A complainant, who purchased an annual direct debit subscription to the magazine in 2015 for £29.99, and was subsequently charged £40.99, challenged whether the advert misleadingly implied that the cost for the subscription would remain at £29.99 for 12 issues beyond the first year.

The advertiser sought to rely on the payment terms included in their terms and conditions. The ASA, however, upheld the complaint.

The ASA noted that the advertiser’s website presented consumers with various options for subscribing to the magazine in question, which varied in length and cost. This included a one-off payment of £19.99 for 6 issues, or £32.49 for one year, or a rolling annual subscription paid by direct debit at “£29.99 per year”. The ASA commented that, without any qualifications to explain how the direct debit system worked, consumers would be likely to interpret the reference “per year” to mean that if they committed to a rolling subscription via direct debit, the price would remain unchanged after the expiration of the first 12 months of their subscription.

The ASA then turned to the advertiser’s terms and conditions on its website. The full terms made it clear that the quoted direct debit fee was only for the first 12 months and could then be increased by any amount with the customer free to cancel the contract should they so wish. However, the ASA considered that this text, which was located on an entirely separate web page in the ‘Corporate’ section of the website and unlikely to be seen by most customers, was not sufficiently prominent to counter the initial impression that the price would remain unchanged after the first 12 months of the contract.

The ASA noted the advertiser’s willingness to make changes to the advert, but, for the above reasons, concluded that the marketing materials were likely to mislead and therefore breached the Code.

This ruling is key not only for advertisers who market their product on a subscription basis, but also to advertisers generally who are seeking to rely on caveats or qualifications contained in their terms and conditions. Unless the relevant terms and conditions are sufficiently prominent and clear to consumers before they commit to a purchase (e.g. adequately signposted on the same web page or section, or clearly hyperlinked to another page), the ASA are likely to conclude that these are not sufficient to counter the initial or otherwise overriding view of the consumer as to the nature of a claim or offer.

HEALTH AND BEAUTY

2. Organic Burst World S.A. – 7 December 2016

Two adverts for food products and supplements, appearing on the advertiser’s website and Instagram page, stated “FIND THE PERFECT SUPERFOODS TO HELP YOU LOOK AND FEEL AMAZING FAST” and, on one particular product, used the term “detox”.

Complaint / Decision

The complainant challenged whether the claims used, which were understood to be general references to the benefits of the product for overall good health or health related wellbeing, should have been accompanied by specific authorised health claims.

The complaint was upheld by the ASA in relation to both claims.

The ASA noted that, pursuant to EC Regulation 1924/2006, references to the general benefits of a nutrient or food for overall good health were acceptable only if accompanied by a specific authorised health claim. The ASA confirmed that both claims fell into this category and therefore the advertiser was required to provide a specific authorised health claim for each of the product ingredients that the claims related to.

As no authorised health claims were listed on a click-through page from a general product information section of the advertiser’s website for either of the headline claims, the adverts breached the Code.

This adjudication is another of the ASA’s regular reminders for advertisers, particularly those in the health and beauty sector, to ensure that any marketing slogans or phrases which constitute a reference to a general, non-specific health benefit of a product are accompanied by a relevant authorised health claim. In recent months we have seen claims such as “Full of goodness” and “A nutritious start to your day” (from the Kellogg Marketing and Sales Company UK Ltd ruling in July 2016) fall into this category. Advertisers should be aware of the strict approach to general health claims currently being adopted by the ASA, as seen in the Leon Restaurants Ltd ruling in September 2016, which also used the term “superfood” and was found to breach the Code.

3. Avon Cosmetics Ltd – 7 December 2016

A catalogue listing for hair and body wash stated “Normally £4… £3, save £1”.

Complaint / Decision

A complainant challenged whether the savings claim was misleading and could be substantiated.

The complaint was upheld by the ASA.

The ASA made clear that any price savings claims made by advertisers had to be made against the usual selling price of the product at the time the advert appeared, and therefore that it represented a genuine saving against that price.

The ASA noted that the hair and body wash in question had indeed been offered at £4 in the advertiser’s brochure 9, if bought individually, and that a moderate number of units had been sold at this price. Although this was a small proportion of the total units ordered from brochure 9, this nevertheless showed that the product had been sold at the previous price.

However, the advertiser needed to go one step beyond this and show that this was the usual selling price of the product, and this is where the advertiser fell down. It became apparent to the ASA that the same product had been advertised in brochures preceding brochure 9 for £2.40 and £3 respectively. This indicated that it had been available for sale for less than £4 for nine weeks prior to the six-week period where it was sold for £4. Accordingly, the ASA considered that the selling price of £4 was not the usual selling price and the advert over-stated the savings consumers were likely to make. The advert breached the Code.

The key takeaway point from this ruling is that advertisers need to take care when making any savings claims in their marketing communications – these must represent genuine savings. Unless the advertiser holds sufficiently clear and comprehensive evidence to show that the quoted prices were the prices at which the products were previously sold, and that any price quoted was a genuine selling price and numbers of the relevant product had been sold at that price, they must refrain from using such terminology or they risk misleading consumers as to the savings to be made from purchasing their goods or services.

Advertisers should also refer to the new guidance on pricing practices issued by the Chartered Trading Standards Institute, a summary of which is available here.

4. BioEnergiser Ltd – 14 December 2016

A newspaper advert for a pressure point device featured the headline “STOP PAIN RIGHT HERE” and showed an image of a woman with a red line running up her leg and back. Additional text explained that the product would give “MODERN BACK PAIN RELIEF…pain-free” and stated that it had been “independently tested” as a “quick start to back pain relief, relieving both short term lumbar pain and sciatic pain AFTER JUST ONE USE”. The advert also included a reference to another pain-relief product, stating “NO MORE painkillers for me!”.

Complaint / Decision

The complainant challenged whether the claims that the advertiser’s device could provide relief from back pain, and that this process would be quick, were misleading and could be substantiated.

The complaint was upheld by the ASA.

The ASA noted that the various references to “STOP PAIN”, “pain-free” and “effective in back and sciatic pain relief”, coupled with a positive customer testimonial and a statement that the device had been independently tested, would lead consumers to believe that the application of the product would provide immediate, significant relief from back pain and sciatica, comparable with that of taking painkillers.

Based on this, the ASA assessed the evidence that had been put before them. Of the five clinical studies supplied, it was noted that none related to the pressure point (the top of the calf) used by the advertiser. In fact, only one of the five studies related to back pain and this examined acupuncture as a form of pain relief, concluding that it was not efficacious. The article on back pain briefly mentioned the potential for pain relief for the calf pressure-point, but did not discuss it in any detail.

Pointing out yet more flaws with the substantiation provided, the ASA noted that two of the papers were in summary form only and accordingly their trial methodology could not be assessed. Most significantly, however, none of the papers tested the efficacy of the product in concern or any similar device, or otherwise demonstrated that the interventions tested were directly applicable to the advertised product.

On the basis of the above issues with the substantiation put forward by the advertiser, it is not surprising that the ASA concluded that the very bold efficacy claims, including the speed of action and comparisons with pain killers, had not been substantiated and were likely to mislead, in breach of the Code.

Although not a surprising outcome, the decision reached in this adjudication is a reminder that the ASA monitors headline claims in the health and beauty sector carefully. Any trials and surveys relied upon will continue to be carefully assessed for relevance, scale and methodology, and any advertiser failing in this respect can reasonably expect their marketing materials to breach the Code.

5. Tristar Products (UK) Ltd – 7 December 2016

A teleshopping presentation and YouTube video for Tristar Products (UK) Ltd promoted a product called ‘Slim Panties’. The television advert featured a voice-over which stated, “The secret lies in its extra wide compression band which helps to visually tighten and tone your tummy and the most common problem areas: belly, abdomen, waist and back”. Various customer testimonials were shown, including before and after images where the garment created a slim hourglass shape when worn. One woman demonstrating the effect of the product stated, “I can’t believe this, I didn’t expect this at all, I’ve slimmed down two sizes, I look so much slimmer…”. The presenter concluded by stating, “Instantly you can see how much slimmer and how much more toned she looks… this is not photo shopped, this is no something fake… let’s show them how instantly you can make a difference”.

The YouTube video featured a voice-over which stated, “Ladies pay attention, are you tired of lumps, bulges and bumps you see when you wear fitted clothes?” Well now you can breathe again. Introducing Slim Panties, the amazing garment that gives you the comfort of regular panties with the support and instant slimming effect of shapewear… hides excess fat around the waist, back and abdomen.” The advert also featured several before and after photos, with a voice-over commenting, “The perfect slimming solution where you need it the most… makes you look up to two sizes smaller in just seconds”.

Complaint / Decision

A complainant challenged whether the advert misleading exaggerated the slimming effect of the product.

The complaint was upheld by the ASA.

The ASA first considered the effect of the advert on the average consumer, and that the product would be understood by viewers to be representative of the slimming effect that could be achieved by wearing the product.

The ASA then turned to the key issue – the appearance of the models used in the adverts. The ASA noted that all models were shown to have a smoother silhouette, however it was considered that post-production editing had been used on the ‘after’ images to exaggerate the slimming effect.

It was considered by the ASA that the before and after photos did not demonstrate a plausible example of what the garment could actually achieve. Accordingly, it was concluded that the declarations and testimonials were not adequate evidence of the slimming effects shown, rendering the advert misleading in breach of the Code.

This ruling is a reminder for advertisers to not overstate or exaggerate the effects of their products, visually or otherwise, as was the case here. Suggesting a product will have an effect which is unlikely to materialise in reality will usually lead the ASA to find the advert to be in breach of the Code, particularly where the advertiser has used post-production techniques.

6. Omega Pharma Ltd – 21 December 2016

A press advert seen in October 2015 promoted a treatment cream for eczema. The advert contained three prominent headline claims. The first claim stated “AS EFFECTIVE AS A STEROID CREAM”, and was accompanied by a qualifying footnote stating “average symptom improvement over 6 weeks when compared to Hydrocortisone 1% in petrolatum-cetomacrogol”. The second claim stated “HYDRATES BETTER THAN AN EMOLLIENT”, with another footnote explaining “emollients containing unguentum leniens”. The final claim stated “BREAKTHROUGH ECZEMA TREATMENT”. A number of well-known high street pharmacists’ logos were shown towards the bottom of the advert.

Complaint / Decision

One of the leading pharmaceutical companies challenged whether the three headline claims made in capitalised lettering were misleading.

The complaint was upheld in relation to all three headline claims.

The ASA looked at each headline claim, along with any accompanying footnote, individually to assess whether or not it was misleading. In relation to the first claim, the ASA considered that upon reading the claim consumers would believe that the product was capable of alleviating the symptoms of eczema to the same extent as steroid creams available on the market within a similar timeframe. Despite a footnote having been included by the advertiser in an attempt to identify a particular comparator product, in the light of the headline claims being made, the ASA considered that a steroid cream which did not require a prescription (usually a 1%, mild cream) was the most suitable product to judge this claim against.

The study relied upon by the advertiser was reviewed by the ASA, who noted that it had not been peer reviewed at the time the advert appeared, and involved a relatively small number of people of a narrow age range (e.g. no children had been included in the study, despite the product purporting to be suitable for children over six years old). Moreover, the ASA had concerns that the blinding process could have been undermined by the way the products were labelled and provided to participants, and also that only one steroid cream had been tested, and that therefore the comparison would not necessarily be representative of other steroid creams available on the market more generally. Finally, concerns were also expressed in relation to the times at which measurements had been collected as the measurement time period (between 3-6 weeks) was not thought to be relevant or applicable to the short-term nature of steroid creams, which are generally applied for between one week and ten days. For the above reasons, the advertiser had failed to provide full and proper substantiation for this first headline claim and therefore it was misleading.

In relation to the second headline claim, the ASA again noted that the interpretation of the claim was clear and that consumers would understand it to mean that the product was generally more effective than emollient creams generally in preventing moisture loss from the skin. On this occasion, however, due to the footnote being insufficiently prominent, the product was to be judged against emollients generally available on the market, and not just those containing unguentum. Despite the footnote, the ASA chose to look at the way in which the product was actually used in practice.

The single study present to the ASA for this second headline claim only compared the efficacy of the product versus the application of one sole emollient. Again, however, there were several issues with the study. The emollient in question, for example, was not shown to be representative of emollients generally, as were there concerns with the methodology of the study used as the basis of the claim. For these reasons this second headline claim had also not been properly substantiated and was therefore misleading.

Turning to the last headline claim, the ASA considered that this would be interpreted by consumers to mean that the product constituted a breakthrough treatment as it was the only product as effective as a steroid cream. The ASA commented that, typically, advertisers wishing to make a breakthrough claim had to provide a body of evidence to substantiate that claim. The advertiser had only provided one study of 95 participants to support their ‘breakthrough’ claim, and given the discussed issues with the studies relied upon, the ASA concluded that this claim had not been substantiated and was misleading.

Again although an unsurprising outcome, this is another reminder of the high standards that are required when making bold claims in adverts in the health and beauty sector, particularly when relying on trials, surveys and other similar forms of substantiation. These rulings should act, therefore, as a reminder for advertisers to ensure that any claims are based around robust, comprehensive clinical and/or consumer surveys, or else they risk their marketing materials breaching the Code. Even if an advertiser seeks to rely on a footnote in relation to any comparison being made, the ASA will look at how any particular product is used in practice.

TELECOMMUNICATIONS

7. EE Ltd – 7 December 2016

Marketing on the EE website claimed “Our 4G network is 50% faster than any other”, “WHY EE – Reasons to choose the EE network… 75% faster than Three… Fastest 4G experience” and “EE’s 4G network is more than 70% faster than O2 and Three”. A final advert stated “EE’s 4G network is…more than 70% faster than O2 and Three”. Small print on the adverts stated “Speedtest Intelligence Portal & Aggregated Data 01.04.15 – 30.09.15”.

Separately, marketing materials in the national press stated “With the 4G network that’s 50% faster than O2, Vodafone and Three”, whilst a television advert stated “EE’s 4G network is 50% faster than O2, Vodafone and Three”, with on-screen text stating “Based on Ookla’s Speedtest Intelligence Portal and Aggregated Data, April-Sept’15”.

EE had produced evidence to Clearcast for the speed comparison claim. Clearcast obtained confirmation that the Ookla data was the most recently obtained data and, as a result, cleared the advert for transmission.

Complaint / Decision

Complaints were received by the ASA from Three and two members of the public, which challenged whether: (i) the headline claim on the advertiser’s website “It’s official. Our 4G network is 50% faster than any other” was misleading and could be substantiated, and (ii) whether the comparative claims made in the national press advert and television advert were also misleading and capable of substantiation.

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

In relation to the first complaint, and the headline claim “Our 4G network is 50% faster than any other”, the ASA noted that this claim appeared immediately alongside a logo for the company responsible for testing the speeds of the various networks (Ookla). This was accompanied by further explanatory text which gave details of the Award that the advertiser had won, and the date on which the tests had been carried out. The ASA therefore concluded that, in this context, consumers would understand that Ookla had made an annual speed test award following their own independent testing over a sustained period of time, and that EE had been found to be 50% faster than their competitors. This individual claim was accordingly not found to breach the Code.

In relation to the second complaint, however, the ASA did conclude that there had been a breach of the Code. The reason for this was that the claims made in news print and on television were not, unlike that contained on the advertiser’s website, presented alongside any clear explanatory text. Moreover, the Ookla logo did not featured prominently in either of these. Instead, this additional detail was included at the very bottom of the marketing communications, in an insufficiently prominent manner which would not correct the initial impression that the claim was accurate when the advert was actually seen (between 7 – 9 months after the original speed test). It was considered to be particularly important to include an explanation that the advert was based on testing carried out in 2015, which the ASA accepted was the most up-to-date, albeit relatively historic in relation to the date of actual transmission.

This ruling should first act as a reminder for advertisers to construct marketing materials so that all caveats, limitations and explanatory text are placed in a prominent position and clearly linked to the headline claim being made, even where a clearance organisation such as Clearcast approve the advert for transmission in its current form. Advertisers often opt to reduce the prominence of any caveats or explanatory text in order to boost the value of the claim being made and give the impression that this is topical or far-reaching, for example. However, this runs the very real risk of their marketing materials breaching the Code and being declared unfit for transmission.

The ruling should also remind advertisers of the risks involved when presenting comparative advertising, ensuring that they are never contradictory, for example. Comparative advertising is, of its very nature, likely to encourage complaints from third parties. Advertisers should always objectively compare one or more material, relevant, verifiable and representative features of the products in concern, which may include price. Advertisers should also ensure that when doing so, the information provided is sufficient for readers or viewers to understand and verify the claims made.

OTHER

8. Over Farm Retail Ltd – 7 December 2016

A billboard poster promoting a Halloween event seen outside a train station featured text that stated “COMING THIS OCTOBER TO OVER FARM, GLOUCESTER 5 LIVE HORROR ATTRACTIONS frightmare Halloween festival…”, and featured images of a man and woman wearing prosthetic monstrous make-up. The poster also featured an animated character holding a chainsaw in one hand and a decapitated head in the other.

Complaint/ Decision

A complainant, whose child was distressed by the billboard, objected that it was unsuitable for display in an untargeted medium where children could see it.

The ASA upheld the complaint, despite claims from the advertiser and Primesight that they had sought to target the billboard carefully.

It was noted by the ASA that the billboard poster appeared in a prominent position outside a train station and that the complainant’s child had become distressed upon seeing it. The poster featured various scary characters including an animated character holding a chainsaw and a decapitated head. Finally, “LIVE HORROR ATTRACTIONS” appeared to be scrawled in splattered blood. All of the above gave the advert a strong theme of horror and distress.

The ASA considered that, whilst the content of the poster would not cause distress to older children or adults, it could distress young children. On this basis, the billboard was unsuitable for display in an untargeted medium where it was likely to be seen by young children. The placement of the poster, therefore, breached the Code.

This adjudication is a useful reminder for advertisers who market their goods and services via outdoor or print advertising to ensure that adequate care is taken when purchasing advertising space, and that all marketing is appropriately and responsibly targeted. Adverts containing distressing images, for example, should be confined to advertising spaces and positioned in spaces only seen or frequented by an audience of an appropriate age. This ruling also serves as a reminder for advertisers generally that it is possible to fall foul of the CAP Code even where a particular piece of advertising has been cleared by entities such as Primesight. Even where an advertiser receives clearance, it must ensure that it makes its own decisions on suitability, as the ASA may well still conclude the marketing materials to be in breach of the Code.

9. This Is Global Ltd – 9 December 2016

A radio advert for the film “Lights Out” was broadcast on Capital Radio East Midlands at 7:25pm. The advert featured a voice over from a child which stated, “Every time I turn the lights off, there’s this woman”. Another woman said, “I’ve seen her too… everyone is afraid of the dark, and that’s what she feeds on”, which was followed by several instances of screaming. The same woman continued, “We need to leave”, whilst the voice-over stated, “It will leave you sleeping with the lights on”. The advert concluded with the child stating, “She won’t let that happen”, to which the woman, sounded very distressed, replied, “Stay in the light!”, which was finally followed by sinister noises and a voice-over stating “Lights Out. In cinemas Friday. Certificate 15”.

Complaint / Decision

A complainant, whose child heard the advert and was frightened by it, challenged whether the advert had been scheduled appropriately.

The ASA did not uphold the complaint.

It was first noted by the ASA that, in line with the plot of the film, the audio clips heard suggested there was something scary and threatening associated with darkness or having lights turned off. The fear of the dark was accepted as something common among young children, and, as a result, the ASA agreed with the relevant pre-clearance agency, Radiocentre, that the advert should have been scheduled appropriately to minimise the chances of children under the age of 16 from hearing it.

The ASA proceeded to note that the advertiser had consulted figures from the Radio Joint Audience Research to ensure the advert was aired when a low proportion of those below the age of 16 would be listening to the radio station. Despite the fact that the advert was aired during school holidays, this data showed that for the specific day in question only 7% of the listening audience was likely to be under the age of 16, which the ASA considered to be minimal.

On the basis of the above, the ASA concluded that the scheduling advice given by Radiocentre was appropriate and that the advert had been applied and aired responsibly by broadcasters. The advert therefore did not breach any sections of the Code.

This ruling shows the importance, particularly in broadcast media, of advertisers seeking advice and consulting with the necessary agencies when looking to air or run marketing materials which may cause harm or offence if seen or heard by the wrong audience. In this instance, the advertiser had taken into account audience figures to allow them to schedule appropriately, before the advert was put forward for clearance. Taking these steps does not guarantee that the ASA will confirm the marketing materials to be within the bounds of the Code, but will assist any advertiser in the event of a complaint being made.