ASA Adjudications Snapshot – January/February 2017

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

This update features several adjudications where the ASA have examined the price at which goods and services are marketed to consumers – where these are not completely transparent and accurate, or contain ‘hidden’ terms or conditions, the ASA will often reach a conclusion that they are misleading in breach of the Code.

This update also features a selection of adverts that have been found to be misleading by the ASA due to imprecise or false claims of associations with professional bodies and suppliers.

Finally, this update also includes a number of rulings where the ASA have examined the extent to which adverts promoting gambling are irresponsible. Gambling adverts are always likely to be a focus of scrutiny by the ASA and are the subject of an increasing number of complaints reflecting significant growth in the area and these adjudications provide advertisers with valuable warnings and learning points to ensure they do not fall foul of the Code.

RETAIL

1. Official iPhone Unlock Ltd – 11 January 2017 - A website advertising an iPhone unlocking service was found to be misleading by the ASA as it implied that the advertiser worked with Apple to provide the service and provided inaccurate technical information regarding their unlocking service.

2. A Share & Sons Ltd t/a SCS – 1 February 2017 – A claim made in relation to savings on the Manufacturers Retail Price (“MRP”) of sofas was found to be misleading as the advertiser was not able to show that the MRP was the price that the goods were generally sold at.

3. Hunter Boot Ltd – 1 February 2017 - Adverts featuring a model were not to be not irresponsible as the model did not appear to be unhealthily thin and her legs were in proportion with the rest of her body.

4. Fischen Medical Ltd t/a The Vapes – 15 February 2017 - Multiple billboard advertisements for e-cigarettes that featured cartoon characters of Santa Claus, an elf and a gingerbread man were found to be irresponsible as the advertisements were likely to appeal to children.

HEALTH AND BEAUTY

5. Cliff Le Clercq - 25 January 2017 - A website advertising hypnotherapy and counselling services breached the Code for wrongly stating that a named individual was a member of, or was otherwise endorsed by, a professional industry body.

FINANCIAL SERVICES AND PRODUCTS

6. Hall and Hanley Ltd – 8 February 2017 – A website advertising a PPI recovery service was found to be misleading as the average claim quoted did not take into account the advertiser’s fee, VAT and income tax.

7. WIN Investing LLP – 8 February 2017 – Various adverts on websites promoting finance seminars were found to be misleading as the savings offered, claims of limited availability and awards were unsubstantiated.

TRAVEL AND MOTORING

8. London City Airport Ltd - 4 January 2017 - A radio advert for London City airport was cleared by the ASA after the headline claims used, which inferred that it is the only airport actually in London, were found not to be misleading.

9. Ryanair Ltd - 4 January 2017 - An advert for summer 2017 flights was found to be misleading by the ASA as the promotion in question only related to flights in the spring, and the qualifying text used to explain this was not sufficiently prominent to alert consumers to this fact.

10. BravoNext SA t/a lastminute.com - 4 January 2017 - An advert for a flight and hotel package was found to breach the Code after a consumer who attempted to book the package was told shortly afterwards that the price had increased, and would be unavailable unless they paid the difference in quoted and final price.

11. Expedia.com Ltd - 4 January 2017 - An email advert with a link to a landing page offering member only discounts was cleared by the ASA after the email used to provide the offer was sent only to members of the advertiser’s website and the landing page made sufficiently clear which listings were subject to a further discount for members.

FOOD & DRINK

12. Medibee Ltd - 4 January 2017 - Claims made in relation to various natural food products breached the Code as they either stated or implied an ability to treat or cure human disease, or were unauthorised health claims unsupported by any specific authorised health claim.

13. Taywell Ice Creams Ltd – 4 January 2017 - Various nutrition claims were found to be in breach of the Code either by virtue of not being a permitted nutrition claim or failing to meet the conditions of use to carry the relevant nutrition claim.

14. Aldi Stores Ltd - 11 January 2017 - An advert for a high street supermarket was not found to be misleading as the light-hearted and fanciful scenes could not safely be said to imply that the advertiser’s salmon was caught in the wild.

OTHER

15. Platinum Gaming Ltd – 11 January 2017 – A Facebook advert and three television adverts were cleared by the ASA, after the strapline ‘LUCK IS NO COINCIDENCE’ was found not to be misleading or irresponsible.

16. Profit Squad Ltd t/a Profit Squad– 1 February 2017 – An advert on a football forum that offered “100 risk-free profits” was found to be misleading due to the degree of risk provided by factors outside of the advertiser’s control and the fact that the claim involved accurately following a long-winded and complex system and the advert was not found to be irresponsibly targeted at children as the forum was likely to attract a predominantly adult audience.

17. Alzheimer’s Research UK – 15 February 2017 – An advert depicting Santa with Alzheimer’s and therefore unable able to deliver presents at Christmas was not found to be irresponsible as the emotional nature of the appeal was proportional to the content of the advert and the seriousness of the issue being discussed.

18. Systematic Entertainment Shopping Ltd t/a Bidwiz – 22 February 2017 – Multiple claims on a bidding website listing live auctions were found to be misleading due to the lack of clarity of the costs involved in the bidding process and the fact that advertised savings of up to 95% were not able to be substantiated.

RETAIL

1. Official iPhone Unlock Ltd – 11 January 2017

The advertiser’s website featured text stating: “we sell official factory unlocks which are sanctioned by the carrier and performed by Apple, hence there is a timeframe which needs to be adhered to”. Text further on stated “A pre-order simply means that those unlocks are currently offline whilst we are in negotiations to confirm a price with the carrier and Apple”.

The terms and conditions on the website stated that “It is not possible to Find out if a ‘SIM Locked’ or ‘SP Locked’ handset has been ‘Blacklisted’ from any particular network or all major networks without first performing the 'unlock' procedure using our services. Therefore, if we undertake an unlock and you find out the phone is in fact logged as lost, stolen or abused, we cannot then refund your payment”.

Complaint / Decision

The complainant challenged whether the two claims above were misleading and could be substantiated.

Beginning with the first strand of the complaint, the ASA considered that consumers would interpret the references to unlocking being "performed by Apple" and to Official iPhone Unlock being "in negotiations to confirm a price with the carrier and Apple" to mean that Official iPhone Unlock worked directly with Apple to provided their service, which was not the case.

On the technical claim, the ASA considered that consumers would interpret the claim “It is not possible to find out if a … handset has been ‘Blacklisted’ … without first performing the ‘unlock’ procedure using our services” to mean that there was no way other than performing the unlocking procedure to find out whether a device had been blacklisted

Both complaints were upheld on the basis that the advertiser was unable to provide any substantiation.

This ruling identifies the risks of seeking to imply some official association (here with Apple) where none exists.

2. A Share & Sons Ltd t/a SCS - 1 February 2017

The advertiser’s website featured several carpets on sale with an ‘MRP’ (manufacturer’s retail price) price and a lower ‘Now’ price, for example, “Invictus Auriga carpet Now £21.99, MRP £38.99 40% OFF” and “iSense Serene Carpet Now £34.99 MRP £52.99 30% OFF”.

Complaint / Decision

Carpetright Plc challenged whether the MRPs and the advertised savings claims were misleading and could be substantiated.

The advertiser relied on the fact that their supplier had provided the MRP prices with the products and that these had been referenced against the current retail price for the products. The supplier had apparently based the MRP on the highest prices at which their carpets had been available for resale from their retailers.

Nevertheless, the ASA considered that consumers would understand the MRPs and the savings claims to reflect the price at which retailers generally sold the goods across the market, and that the MRP would be a genuine selling price. As the advertiser was not able to provide full and proper substantiation demonstrating that at the time the advert was seen the products were available from other retailers at the MRPs stated, the ASA held that the advert was misleading and breached the Code.

Furniture adverts, which regularly contain pricing offers, are frequently the subject of complaints. As mentioned in the February 2016 ASA Snapshot, between 2012 and 2014 the CMA conducted an investigation into the use of misleading reference pricing by certain furniture and carpet businesses. Following the investigation, the retailers confirmed a commitment to the use of genuine reference prices and, without any admission of liability, have made changes to their reference pricing practices. On the basis of the commitments received, the OFT has closed its investigations. The ASA generally tends to be particularly suspicious of MRPs/RRPs. Where saving claims are made against MRPs/RRPs, advertisers should ensure that these prices are genuinely representative of the price such products are generally sold, and should be able to demonstrate sales of sufficient numbers of products at that price.

3. Hunter Boot Ltd – 1 February 2017

A Facebook advert featured a ten-second video of two women dancing in waterproof clothes.

An advert on the London Underground, showed twelve images of models in waterproofs. Seven of the images featured one of the women in ad the Facebook advert. The model only had her knees and thighs exposed, and that the limited exposure of the model's body did not provide an overall view of her figure – for instance, her calves, torso, neck and arms were not visible.

Complaint / Decision

The complainant, who believed one of the models depicted appeared unhealthily thin, challenged whether the adverts were irresponsible.

The advertiser stated that the model had a “naturally slim build” and provided a letter from her agency which stated that she was of sound health.

The ASA acknowledged that the model in question appeared to have long and slim legs. However, in both adverts her legs appeared to be in proportion with the rest of her body, while only her knees and thighs were visible. It was considered that, although she was slim, she did not appear to be unhealthily thin, and therefore concluded that the adverts were not irresponsible or otherwise in breach of the Code.

The subject of irresponsible advertising in marketing material by the use of unhealthily thin models is often an area of concern, and there remains an issue over the frequency with which advertisers use models who appear to be underweight. This is also a subject that attracts a lot of complaints in relation to body image and a lot of media interest. Over the past few years there have been several complaints upheld against high profile fashion companies for using models considered to be ‘very thin’ or ‘unhealthily underweight’. Fashion advertisers may draw some comfort from this adjudication which identified the model in concern as being ‘slim’ but otherwise considered of a healthy weight, and that the ASA did not find the advert to be in breach of the Code. Nevertheless, there is clearly a fine line between what may be considered acceptable or unacceptable body images.

4. Fischen Medical Ltd t/a The Vapes – 15 February 2017

Three electronic billboard adverts stated:

1. "ALL SANTA WANTS FOR CHRISTMAS", alongside an image of Santa Claus wearing a denim jacket with the sleeves cut off. He had a tattoo on his arm saying "Rudolph", and was vaping.

2. "ALL HE WANTS FOR CHRISTMAS", alongside an image of a gingerbread man vaping.

3. "ALL ELVES WANT FOR CHRISTMAS", alongside an image of a Christmas elf vaping.

Complaint / Decision

Three complainants challenged whether the adverts were likely to have particular appeal to under 18-year-olds, and were therefore irresponsible.

The advertiser argued that the visual content and the depiction of the cartoon characters had been purposely designed to bear no resemblance to traditional seasonal imagery. The cartoon characters were designed to provide a 'twist' on the festive season, which they believed would only gain recognition from an adult audience.

Nevertheless, the ASA considered that the use of cartoons or cartoon-like imagery had the potential to appeal to under-18s, and that it was therefore important that they were used carefully in ads for electronic cigarette products. In upholding the complaint, the ASA highlighted that because the images were in a style that would likely appeal to children, and because they were of characters who would be familiar to them, the adverts were likely to appeal particularly to people under 18. As such, all three adverts breached the Code.

This adjudication makes it clear that advertisers should take particular care when advertising products which should not be targeted at, or which should not appeal to, children. Complaints are highly likely for this type of advertising. Advertisers should therefore take care to ensure these adverts do not include any images which might appeal to children, and should beware of using images such as cartoon figures when promoting products for adults.

HEALTH AND BEAUTY

5. Cliff Le Clercq - 25 January 2017

The advertiser’s website, with the domain name ‘Life Clinic’, included a welcome message and quote from Cliff Le Clercq. Text on the homepage stated “Member of: The British Assc. Counselling & Psychotherapy B.A.C.P.” Further down the page, the BACP logo was displayed, alongside the logo of other organisations.

Complaint / Decision

The British Association for Counselling & Psychotherapy (BACP) challenged whether the claims that Life Clinic and / or Cliff Le Clercq was a member of BACP, and the use of the BACP logo, breached the Code.

BACP’s complaint was upheld by the ASA.

Although the advertiser failed to engage in the complaint process, the ASA referred to the relevant section of the Code, which states that adverts must not display a trust mark, quality mark or equivalent without the necessary authorisation, and moreover must not claim that the relevant company or individual has been approved, endorsed, or authorised by any public or other body if it has not.

The ASA understood from BACP that neither Life Clinic nor Cliff Le Clercq were members of the organisation and did not have permission to use its logo. The advertiser’s materials, which claimed membership or an affiliation, breached the Code.

It is not clear from this ruling whether the advertiser was ever a member of BACP. In any event, advertisers who display trust or membership marks should always ensure that they have the right or permission to do so, and that their membership of the organisation or body does not lapse, leading them to breach the Code for wrongly suggesting an affiliation. As was the case in this ruling, advertisers can expect large, high profile organisations such as BACP closely to monitor the use of their name, and corresponding logos, in marketing materials originating from the relevant sector.

FINANCIAL SERVICES AND PRODUCTS

6. Hall and Hanley Limited – 8 February 2017

An advertiser’s website featured the claim "Free PPI Claim Check. Average Claim £2,162". Further text referred to the advertiser sending an invoice at the end of the process for their fee at 29 % of the total settlement figure plus VAT.

Complaint / Decision

Lloyds Banking Group challenged whether the claim “Average Claim £2,162" was misleading and could be substantiated.

In response the advertiser provided a spreadsheet which showed that the average amount paid out by banks in June 2014, based on 196 claimants, was £2,162.

Whilst the ASA noted that the web page featured text which made clear that fees and VAT would be payable, the text was not positioned near, and did not refer to, the claim “Average Claim £2,162”. The ASA considered that, in the absence of specific information to indicate otherwise, consumers would interpret the claim “Average Claim £2,162” to refer to the average of the final amount of compensation claimants had received following the deduction of the advertiser’s fee and VAT, and at the time the advert was seen. The ASA concluded that the deduction of fees and applicable taxes from the average claim of £2,162 was material information for the consumer, which needed to be made clear in the ad.

Moreover, the ASA ruled that one month’s data was not sufficient to substantiate a claim concerning the overall average amount of compensation. It was also noted that the data that was used was two and a half years’ old. The ASA considered that the current average monthly claim could therefore be significantly different.

The ASA ruled that the claim was unsubstantiated and misleading and therefore in breach of the Code.

This ruling demonstrates the need for clarity for consumers and that anything which may amount to a qualification needs to be sufficiently clear and prominent. It also demonstrates the need to rely on sufficiently up-to-date and quantitative support for any claims being made.

7. WIN Investing LLP – 8 February 2017

Claims about different investment trading seminars offered by an advertiser:

a. A claim on the advertiser’s website for a course stated "For the first 60 people only. Attend the UK's number 1 trading course for just £1970 (usual price over £4,997)".

b. A claim on the advertiser's website for a Forex Masters seminar stated "The full seminar is now running on a reduced price of...£197 plus VAT. Choose the suitable date for you. HURRY! ONLY 2 UK SEMINARS (50 people per course)…Remember, there are just 50 places available per seminar, and I'm only doing 2 seminars - that's it. And at the price I'm charging, these places will go quick (my $3,000 US seminars sell out in days). So book a place today, or risk missing out”.

c. A website advertising a Forex Club Financial Trading Seminar, www.ukforexacademy.co.uk, featured logos stating “Business Britain Award” for the years 2006 to 2010.

d. A website advertising a Forex and Stock Market Training course, www.wealthtrainingcompany.co.uk, stated “our award winning FREE course has been named number 1 in the UK 2006, 2007 and 2008 (by Business Britain)”.

Complaint / Decision

The complainant challenged whether:

1. the claim in advert (a) that the usual price of the seminar was £4,997 was misleading and could be substantiated, because they understood that the advertiser had previously sold the seminar at £197;

2. the claim in advert (b) that there were only two seminars was misleading and exaggerated the limited availability of the course.

3. the claims that the awards listed in adverts (c) and (d) could be substantiated.

All three challenges were upheld.

In relation to the first challenge, the ASA considered that consumers were likely to interpret that claim to mean that there was a genuine saving against the seminar’s “usual price” of more than £4,997. Similarly, the ASA considered that consumers would interpret the second claim as meaning that tickets would only be available at the “reduced” price of £197 for two seminars, and therefore places were very limited. The advertiser was not able to substantiate either claim and therefore the ASA ruled that the claims were misleading and in breach of the Code.

Turning to the third and fourth claim it was noted that the Business Britain award logos were positioned under a description of a course entitled Forex Club Financial Trading Seminar and therefore the ASA considered that consumers would likely understand that the awards applied specifically to this course. The advertiser was unable to substantiate any of the awards claimed and the ASA therefore ruled that the claims were misleading and in breach of the Code.

TRAVEL AND MOTORING

8. London City Airport Ltd - 4 January 2017

A radio advert promoting London City airport stated, “Business or pleasure, time is on your side when you fly from London City Airport... Fly with British Airways or Flybe from Edinburgh or from Glasgow to the only airport actually located in the city of London. Get closer to the heart of London. From landing to the City or the West End in under 40 minutes... Fast, punctual and actually in London”.

Complaint / Decision

The complainant challenged whether the claims relating to the location of the airport were misleading.

The complaint was not upheld by the ASA.

The ASA noted that the advert referred to the airport being “the only airport actually located in the city of London” and “actually in London”. However, they believed that the primary message of the advert was focused on the time that could be saved by flying to or from London City Airport. The ASA believed that consumers, regardless of their location or eventual destination in London, would understand from this claim that it may be advantageous for them to fly from or to London City Airport due to its central London location.

In assessing this headline claim, the ASA noted that no airports were actually located in the central London local authority district of the City of London, and that London City Airport was not the only airport within Greater London (this region also including Heathrow Airport). However, City airport was indeed the most central airport servicing London, and the only one that might reasonably be described as being within ‘inner’ London. For this reason, the ASA concluded that the advert was unlikely to mislead consumers and therefore did not breach the Code.

This ruling was given a high level of coverage in the London press. Perhaps the most important takeaway point is the way in which the ASA reviewed the marketing material for its ‘primary message’ in making an assessment of whether or not the advert was likely to mislead. Despite the incorrect, or at best questionable, inference that City Airport was the only airport “actually in London”, the ASA accepted that the primary message of the advert was true, and therefore did not breach the Code. Advertisers should be aware of the primary or overriding message of their marketing materials, and that they hold full and proper substantiation to demonstrate the message.

9. Ryanair Ltd – 4 January 2017

A television advert featured a voice-over which stated “Book now from just £19.99. Ryanair. Low fares. Made simple”. Large on-screen text stated “Fly from 19.99”. Smaller on-screen text throughout the advert stated “Fares one way. Book by 10/11/16. Travel by 25/03/17”. The advert concluded with large onscreen text stating “Summer 2017 on sale now”.

Complaint / Decision

The complainant, who understood that the £19.99 offer applied to flights for summer 2017, challenged whether the advert was misleading.

The ASA upheld the complaint, not accepting the advertiser’s argument that the primary message of the advert was to promote a £19.99 seat promotion for travel until 25 March 2017, and that an adequate disclaimer was used throughout the advert,.

The ASA accepted that one meaning of “Summer 2017 on sale now” was that tickets for summer 2017 were now (also) available to buy. However, this was ambiguous, and the claim could also be interpreted to mean that summer flights were now “on sale”, meaning that they were part of the sales promotion.

The ASA noted that the majority of the advert related to a sales promotion, and accordingly they considered that viewers would likely understand “Summer 2017 on sale now” to mean the latter – that flights for summer 2017 were now available to buy from £19.99. Whilst it was also noted by the ASA that the advertiser had used qualifying text throughout the advert stating the start and end dates for the promotion, this disclaimer was considered insufficiently prominent to correct the overall impression that summer 2017 flights were included in the sale. The ASA therefore concluded that the advert was misleading in breach of the Code.

The ASA will assess adverts based on the understanding of an average consumer, who is unlikely to take note of insufficiently prominent disclaimers and instead interpret an advert on its face value. Advertisers should therefore ensure they give sufficient thought to the size, positioning and general prominence of any qualifiers, and whether or not these act to correct the overall impression that a consumer would otherwise take from the marketing materials.

10. BravoNext SA t/a lastminute.com - 4 January 2017

An advert seen on the advertiser’s website on a particular day in September offered a flight and hotel package to New York for £569 per person.

Complaint / Decision

The complainant, who booked the package but was subsequently told that the original price was no longer available and that she would instead have to pay an additional £70.77, challenged whether the price claim was misleading and could be substantiated.

The ASA upheld the complaint.

Noting that the original advert contained a price of £569 per person for the flight and hotel package, the ASA considered that consumers would understand the advert to mean that £569 was the total price that they would pay (aside from any optional extras to be added on in the final stages of the booking). However, approximately one hour after making a booking request for the package at this price, which included the cost of actually making the payment, the complainant was informed that the price had increased and they needed to pay an additional sum of money to keep the booking.

Very simply, because the price was not available at the price quoted in the advert, the ASA concluded that the price statement was misleading and the advert therefore breached the Code. This adjudication, along with the Ryanair ruling, received a great deal of media attention in January. It highlights the potential pitfalls for advertiser companies who operate within ‘dynamic’ markets, and should act as a reminder for these advertisers to use appropriate wording in their marketing to alert consumers to the fact that prices are constantly subject to change. Advertisers may consider, for example, putting into effect ‘auto-reffesh’ functions on their websites, which warn consumers of a ‘timeout’ if they do not conclude the transaction within a short period of time. This may reduce the risk of prices from third party providers increasing, as is frequently the case over the period of an hour or more.

11. Expedia.com Ltd – 4 January 2017

An email, sent to the advertiser’s members mailing list, stated “BY INVITE ONLY: SPECIAL MEMBER PRICING You’re Eligible for 50% off’. A “Terms and conditions” link led to text on a separate web page which stated that “These offers are available to logged in Expedia account holders, newsletter subscribers and via the Expedia app”. The email linked to a page on the advertiser’s website which listed the hotel or holiday offers. At the top of the page, text highlighted in yellow stated “Members get an extra 10% or more off select hotels. Look for Member Pricing below”. Members’ prices were highlighted in yellow, some of which were also labelled “member price”.

Compliant/ Decision

A member of the advertiser’s website unsuccessfully challenged whether the claims that discounts were available to members only were misleading.

In dismissing the complaint, the ASA highlighted that whilst any consumers (whether members or not) accessing the advertiser’s website via the link would have access to the members only prices, non‑members would only have access to these deals if the email was forwarded to them by a member.

The ASA considered that consumers are generally familiar with marketing messages whereby an offer is addressed to a particular consumer, but might be accessible to any others who are given access to the relevant link. As such, the exclusivity of the promotion was unlikely to mislead consumers and the claims within it were unlikely to mislead.

Taking into account the yellow text at the top of ad (b) which stated “Members get an extra 10% or more off select hotels. Look for Member pricing below” the ASA concluded that the landing page made sufficiently clear which listings were subject to a further discount for members and which listings were being offered at the usual rate on the advertiser’s website.

This serves as a reminder for advertisers to ensure that any members only offers advertisements are only directed at members, and are not directly accessible by non-members, such as exclusive emails or discounts on page accessible only by a logged on member of the website. To avoid challenges from members of the public, advertisers should include sufficient explicit references to the fact that the discounts are exclusively reserved for members. The ruling also highlights the importance of the landing page clearly identifying which of those products/services receive a further discount for members.

Expedia.com Ltd – 4 January 2017 - An email advert with a link to a landing page offering member only discounts was cleared by the ASA after the email used to provide the offer was sent only to members of the advertiser’s website and the landing page made sufficiently clear which listings were subject to a further discount for members.

FOOD & DRINK

12. Medibee Ltd – 4 January 2017

A website and leaflet included various claims about their food products. The wording used, made in respect of products derived from bees such as honey, propolis, royal jelly, and pollen, made significant claims about the benefits of the products to human health. The most notable of these included claims such as ‘Propolis has been used throughout time for its germ killing ability.. .why not take several drops on cold, winter days’, ‘The oldest natural remedy on the planet’, ‘Regularly used for the immune system’, and ‘Natural bee pollen contains every necessary ingredient for our bodily survival’.

Complaint / Decision

Derbyshire County Council Trading Standards Division challenged the adverts on the basis that they:

(a) contained claims which stated or implied that a food prevented, treated or cured human disease;

(b) contained general health claims which were not accompanied by a specific authorised health claim; and

(c) contained unauthorised health and nutrition claims.

The complaint was upheld by the ASA on all three counts.

In relation to the first strand of the complaint, the ASA noted that advertisers were subject to rule 15.6.2 of the Code, which prohibits advertisers from attributing any property of preventing, treating or curing a human disease to any food. The advertiser had, however, made several references in its advertising materials to the ‘antibacterial’ properties of its propolis drops, and their ‘germ killing ability’, and had also made several references to its products as ‘the bee’s own antiseptic’, capable of warding off ‘hay fever and sneezing’. These references, the ASA commented, would lead consumers to believe that the products killed bacteria (and could therefore prevent the contraction of diseases) or otherwise helped to combat illnesses or allergies. This was, the ASA concluded, a fairly straight-forward breach of the Code.

Turning to the second strand of the complaint, the ASA reiterated that only health claims listed as authorised on the EU Register of nutrition and health claims made on foods were permitted. Various references to the general benefits of the products for human health and well-being, including ‘Make life feel easier for you! ’, ‘a rich course of nature’s nutrients’, and ‘Bee-active constitutes a great nutritional extra’, failed to identity any authorised health claims. Because these general health claims were not accompanied by specific authorised health claims, and indeed they were not exempt from this requirement by any transitional measures, they were in breach of the Code.

Finally, the ASA also upheld the last strand of the complaint, again stressing that only health and nutrition claims which were authorised on the EU Register were permitted in food advertising. The ASA assessed the claims made and the products or substances referred to and concluded that these either related to products with no authorised health claims (e.g. for caffeine, cholesterol content, or acetylcholine), or exaggerated the meaning of authorised claims for the referenced substances. Because these claims were not permitted, or sufficient evidence had not been provided for the associated conditions of use, the ASA concluded that these claims also breached the Code.

This adjudication is not surprising in the light of the very bold claims being made, but is a reminder for advertisers in the food and drink sector to take note of the various applicable requirements and prohibitions when drafting marketing materials referring to related health benefits. Advertisers from this sector must be vigilant that claims on food and drink are either authorised health claims, or general health claims accompanied by specific authorised health claims, and that these claims (including trade marks and brand names) do not state or imply that the food or drink in question is capable of treating or curing human disease.

Although not a surprising outcome, this ruling demonstrates, in particular, the need to be able to establish any savings claims are genuine.

13. Taywell Ice Creams Ltd - 7 January 2017

A complaint was upheld in August 2016 in relation text on the advertiser’s website which stated “say no to added sugar!” In addition, when the cursor hovered above the text, a pop-up text box appeared which stated, “Refined Sugar Free Ice Cream | Sweet Rebellion”. Further down the page, it stated, “we sweet rebels promise that our ice cream will always be:… an extra source of calcium and b vitamins”.

Complaint/Decision

The ASA decision was referred to the independent reviewer following which the wording of the ruling was changed but the decision to uphold the complaint remained.

The issues related to:

1. “Say no to added sugar”

2. “Refined sugar free” and

3. “An extra source of calcium and B vitamins”

A competitor complained that these claims did not meet the conditions of use to carry the relevant nutrition claims.

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

The ASA considered that all three claims were nutritional claims for the purposes of the EU Regulation on health and nutrition claims.

The ASA considered that the “say no to added sugar” claim would be understood to serve as the permitted nutrition claim “with no added sugars”. As the ice cream in question contained agave nectar and/or jaggery, the claim did not comply with the conditions of use associated with the permitted “with no added sugars” nutrition claim in the annex of permitted claims.

The "refined sugar free" claim was not a permitted nutritional claim.

The claim “an extra source of calcium and B vitamins” would need to be supported by evidence to show that the claim complied with the conditions of use associated with either of those permitted nutrition claims and no such evidence was provided.

All the disputed claims were therefore found to be in breach of the Code.

This ruling originally received a fair amount of media attention, particularly on social media. It serves as yet another reminder of that EU Regulations on health and nutrition claims will be applied very strictly and that all nutrition claims in adverts require full and proper substantiation.

14. Aldi Stores Ltd - 11 January 2017

A television advert showed various products which it proclaimed were “Amazing”. One scene showed a man scuba diving in an expanse of water, with fish swimming around him. The diver stated “How’s this for amazing? Aldi’s Specially Selected Scottish Salmon is RSPCA assured”. This was repeated in text that appeared across the screen. Several other characters entered and exited the scene, before the advert closed with the voice-over, “Aldi, everyday amazing”.

Complaint / Decision

Five complainants, including the charity Save Our Seals Fund, challenged whether the advert misleadingly implied that Aldi’s salmon were caught in the wild.

Aldi’s arguments in defence of their advert were accepted by the ASA, who did not uphold the complaint. The ASA noted Aldi’s comments that the advert did not contain any express claims regarding the provenance of their salmon. On one hand, the claim “Aldi’s Specially Selected Scottish Salmon is RSPCA assured” did not make it clear to viewers that the salmon was farm-reared, and indeed many viewers would not know that the RSPCA scheme promoted the welfare of animals in captivity, rather than in the wild. On the other hand, the ASA considered that the reference to “RSPCA assured” was unlikely, in itself, to imply that Aldi’s salmon was caught in the wild.

Turning to the visuals of the advert, and the use of a character scuba diving in the river, the ASA considered that the overall tone of the advert was humorous and fantastical, and that viewers were also unlikely to understand these to equate to real life scenarios. Moreover, the salmon segment was brief and the focus was on the scuba-diver himself, who was reading a newspaper and talking to viewers, rather than the scene around him.

In any case, the ASA commented that it was unclear from the footage whether the man was indeed swimming in a river or other natural expanse of water, or if this was instead an artificially constructed body of water. It was also noted that at no point were any fish seen to be captured or caught. As a result, the ASA concluded that, as with the specific worded claim above, the visual scenes did not imply that Aldi’s salmon were caught in the wild and therefore the average viewer was unlikely to interpret the advert to mean this. The advert did not breach the Code.

Against the backdrop of warnings from the regulator on how not to breach the Code, this ruling is an example of the ASA seeking to base its decision-making on common sense principles and analysis. If the ASA considers that the average man in the street would not reach a particular conclusion the ASA will not conclude that an advert is misleading. The ASA saw it as highly unlikely that an average consumer would draw the inferences pointed to by the complainants from the “light-hearted and fanciful” marketing materials put together by the advertiser.

OTHER

15. Platinum Gaming Ltd – 11 January 2017

The advertiser’s Facebook advert featured a video in which three men were watching a football game. One of the men confidently predicted that Germany would win a penalty shoot-out and picked up his phone as if he was about to bet on his predicted outcome. His friends countered that prediction with factors they thought would influence the outcome, such as statistics about penalty shootouts and goal celebrations. The information presented by his friends persuaded the first man to bet differently. The video ended with the text “Luck is no coincidence”.

There were three television advert’s following the same concept, the only difference being that the bets placed were on (1) the number of cards to be issued in a football game, (2) the number of runs scored by a particular player in a cricket game and (3) the winning team of a basketball match.

Complaint / Decision

The complainant challenged whether the Facebook post was misleading, stating that they felt the strapline “Luck is no coincidence” implied that it was possible to predict the outcome of sporting events and therefore that gambling did not involve an element of chance. The ASA added the three television adverts to the challenge and further challenged whether all of the adverts were irresponsible.

In considering whether the adverts were misleading, the ASA considered that when compared to games of pure chance, having relevant information about sporting events may help consumers make more well informed choices about their bets, therefore potentially leading to more wins. Although each advert showed the knowledgeable friends either persuading the first man to bet differently, or predicting the correct outcome, they were not considered to imply that having such knowledge would guarantee wins. Concluding on this complaint, the ASA noted that they understood the strapline as highlighting that better-informed bets might lead to a more favourable outcome, but that the element of chance was still involved. As such, consumers were unlikely to be materially misled by the adverts into making decisions that they otherwise would not have taken about whether or not to gamble on sporting events.

In addressing the second strand of the challenge, it was considered that the adverts promoted a particular attitude towards gambling on sporting events: that research and knowledge could result in better-informed sports betting and thus in gamblers potentially achieving better outcomes, albeit that chance still played a role; the adverts were unlikely to encourage irresponsible gambling or irresponsible attitudes towards gambling generally or amongst vulnerable consumers.

The conclusion reached by the ASA demonstrates the importance of ensuring that gambling advertisements promote responsible gambling and never imply that a win is guaranteed. Particular care needs to be taken with gambling adverts, which are likely to be a focus of scrutiny by the ASA and are the subject of an increasing number of complaints reflecting significant growth in the area.

16. Profit Squad Ltd - 1 February 2017

An advert for the matched betting website Profit Squad, which appeared on the football forum northstandchat.com stated, "NSC has teamed up with Joe who is one of the co-founders of Profit Squad. At Profit Squad they focus on helping their members to earn 100% risk-free profits via matched betting…If you don’t make at least £100 in your first few weeks, both me and Profit Squad will be shocked". Under the heading “WHAT IS MATCHED BETTING?”, text stated “Matched betting is the easiest, safest way to make money from home. It’s basically the art of playing the bookies off against each other, using free bets and bonuses on a DAILY basis to generate steady 1-way profits without risking your own money”.

Complaint / Decision

The complainant challenged (1) whether the claim "helping their members to earn 100% risk-free profits" was misleading; and (2) whether that the advert was irresponsibly targeted on a football forum where it could be viewed by children.

In response, Profit Squad Ltd submitted that the claim was not misleading as profits could be guaranteed and provided an example of how matched betting worked.

The ASA noted that whilst the system theoretically eliminated the chance of losing a bet, the process – which included meeting the requirements to unlock the ‘free’ bets and manually placing the correct bets with separate gambling operators simultaneously while odds fluctuated – was long-winded and open to human error. If the instructions were not followed precisely, then mistakes could be made. It was noted that, in certain instances, winnings were refused for various reasons such as 'bonus abuse' and terms and conditions of offers not being followed. As such, the ASA concluded that the claim “100” risk-free profits” was misleading and in breach of the Code.

Turning to the second strand of the complaint, the ASA noted that it did not identify any thread topics on the forum that appeared to be of particular interest to under-18s, and considered that there was no content more broadly on the website that appeared to be specifically targeted towards under-18s. Whilst under 18s had access to the website, the football forum was likely to attract a predominantly adult audience and therefore concluded that the placement of the advert on the forum was not directed at those under the age of 18 years. Therefore, this challenge was not upheld.

This adjudication shows that the ASA will assess adverts based on the understanding of an average consumer; a consumer that is at risk of not being able to successfully follow complex and long winded betting systems. Advertisers should therefore ensure any offers/schemes featured adverts have simple and clear instructions and do not require a sound understanding of the subject matter.

Moreover, this ruling highlights the importance to advertisers of ensuring that any offers/schemes are strictly under their own control and not subject to external factors, such as price changes as third party terms and conditions.

17. Alzheimer’s Research UK - 15 February 2017

An advert shown on various TV channels depicted an animated story of a young girl being told that Santa had stopped delivering presents because he had developed a disease. She then travelled to see the elves, who explained that research could find a way to fix him. A voice-over at the end of the advert stated “Alzheimer's disease can affect anyone. Only research has the power to change the future."

The advert was cleared by Clearcast with an ex-kids timing restriction, whereby it should not be transmitted in or adjacent to programmes commissioned for, principally directed at or likely to appeal to children under 16 years of age. The advice from Clearcast was not to broadcast the advert before 7.30pm. The advert was shown once before 7.30pm, in the advertising break of an episode of Emmerdale, which itself tackled a serious dementia storyline involving a main character; the advert was then broadcast at 19:13.

Complaint / Decision

Thirty-six complainants challenged whether the advert, particularly the depiction of Santa as suffering from Alzheimer's disease, was offensive, could cause distress to children and whether it was suitable to be broadcast at times when children could see it.

Clearcast stated that they had been careful to consider the issue of distress to children, as Santa was an important figure to children and showing him appearing to be unwell or distressed had the potential to cause upset in young audiences. However, Clearcast stated that not only was Santa helped and taken care of, but the treatment depicted the power of research in helping overcome the condition. Although this was a potentially distressing subject, they considered it was handled in a way that would be appropriate for children to see, and to discuss with parents if they found it upsetting.

In assessing the complaint, the ASA acknowledged that the character of Santa was likely to appeal to children and considered that the depiction of Santa as suffering from Alzheimer's disease, and no longer being able to deliver presents, had the potential to cause discomfort to some younger children. However, it was held that the topic was handled sensitively and that the story was told in a gentle, non-graphic way with a generally positive ending. The emotional nature of the appeal was proportional to the content of the advert and the seriousness of the issue being discussed.

The ASA noted that an ex-kids scheduling restriction was appropriate, and did not consider that the scenes shown would demand stricter scheduling restrictions or a warning prior to the advert being shown.

The ASA therefore concluded that the advert had not been scheduled inappropriately, was not irresponsible and was unlikely to cause distress to those who viewed it.

This ruling highlights the significance of the underlying message behind any advert with an emotional appeal. Advertisers should ensure that any advertisement designed to cause any degree of emotional distress is proportionate to the seriousness of the issues being discussed. The ASA is generally less likely to uphold complaints against adverts for charitable causes.

It would clearly be risky for any advertiser not to follow any Clearcast’s advice in relation to the scheduling of their adverts, however, if an advertiser does choose not to do so for any reason, they must be in a position to provide solid justifications for their actions and would be prudent only to do so on an exceptional basis.

18. Systematic Entertainment Shopping Ltd t/a Bidwiz – 22 February 2017

The home page of a bidding website listed a series of live auctions and each one had a "Bid Now" button. It also listed examples of auctions that had finished and provided a sold price for each item. For example, it stated "MacBook Pro. Sold For £25.71", "iPhone 6S Plus. Sold For £25.12" and "Apple Watch Sport. Sold for £25.53". A banner stated "Save up to 90% on all our products!". A pop-up box contained text stating "Why pay retail price? Save Up to 95% on brand new top products ...".

Complaint / Decision

The ASA itself challenged whether:

1. the advert was misleading because it did not make sufficiently clear how the auction process worked before consumers registered, including the costs involved and the fact that when buying a bid package, they would be signing up for a 14-day trial membership after which they would be automatically billed £59.99 per month;

2. the claims "save up to 90% on all products" and "save up to 95% on brand new top products", were misleading and could be substantiated; and

3. the 'sold' prices listed on the home page were misleading, because they did not include the cost of bids.

In considering the first issue, the ASA noted that whilst there was sufficient information for the consumer to understand that they needed to subscribe to the website for £59.99 a month and buy bid packages, it was not clear what the cost per bid was, because in one example it was stated to be £2 and in another example it was stated to be £1. The cost of the bids was material information that consumers needed prior to registration to be able to make informed decisions about the service. As the information was only accessible via links at the bottom of the home page, it was concluded that this information was likely to be missed by consumers and was therefore unclear and in breach of the Code.

Turning to the second issue, the ASA noted that consumers would interpret the claims "save up to 90% on all products" and "save up to 95% on brand new top products" to mean that they would achieve a saving of approximately 90% or 95% compared to the price at which those products were generally sold by other retailers. In breach of the Code, the advertiser was unable to substantiate the savings claimed.

In relation to the third issue, the ASA considered that consumers would interpret the "sold" prices as representing the total cost of purchasing the items listed. For participants who did not bid with free bids and who instead had paid for bids, the "sold" prices did not take into account that additional cost, and therefore did not reflect the full cost to the consumer in receiving the item.

All three challenges were therefore upheld.

Bidding websites are becoming the subject of an increasing amount of complaints from both the public and by the ASA itself, with this ruling being one of six in February alone. Advertisers in any industry where the purchasing process is unfamiliar to the average consumer need to ensure they provide full and proper substantiation for any claims or price; that claims on savings should reflect the reality of the price level at which the product is normally sold (and not the maximum RRP it can find referenced by one retailer); and should make clear that "sold" or "closed at" prices include the cost of the bids placed.

Advertisers should also ensure their adverts make clear how any system of purchasing products through unusual means (such as bidding websites) operates, including full and clear details of the costs involved.

In this instance, consumers would be signing up for a 14-day trial membership, after which they would be automatically billed £59.99 per month, with the minimum subscription being three months. Service providers offering free trials with mandatory subscriptions woven in to the fine print of terms and conditions are under increasing pressure to offer clarity about their services. In the recent Spring budget, the Government has announced that a green paper will shortly be brought forward detailing the move at increasing fairness for consumers in relation to subscription services. As such, advertisers offering subscription services are likely to be subject to a greater degree of scrutiny by the ASA.