ASA Adjudications Snapshot – July 2017

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

This edition features two different complaints relating to No. 1 claims, each with differing outcomes, as well as a number of rulings demonstrating the need for clarity in making savings claims. There are also a couple of decisions in relation to adverts found to be offensive and socially irresponsible, and two different rulings on driving related responsibility issues..

ADJUDICATIONS

RETAIL

1. Laura Ashley Ltd – 19 July 2017 – an advert was found to be misleading as seasonal discounts were applied after the sale closing date.

2. Church & Dwight UK Ltd t/a Femfresh – 12 July 2017 – an advert was found to be offensive and socially irresponsible as it portrayed women in an overly sexualised manner.

3. Wren Living Limited t/a Wren Kitchens – 26 July 2017 – a “No 1” claim was found to have been substantiated, but was also found to be a comparison against identifiable competitors requiring verification.

4. Top Shop/Top Man Ltd – 26 July 2017 – an advert on the Top Man website which stated that jeans were “Selling Fast!” was challenged for being misleading as the banner appeared for products which were added to bag rather than those that had been sold.

5. DSG Retail Ltd t/a Currys PC World- 26 July 2017 – an advert for a cloud storage product was deemed to be misleading as it exaggerated the product’s capabilities.

MOTORING

6. Inspop.com Ltd t/a Confused.com – 5 July 2017 – various adverts containing “No.1 for car savings” were found to imply that consumers would save more money with Confused.com as opposed to its competitors and could not be substantiated.

7. John Hudson Trailers Ltd t/a Longstone Tyres – 19 July 2017 – an advert was found to be offensive and irresponsible due to the use of sexually suggestive images unrelated to the products advertised.

8. BMW (UK) Ltd – 19 July 2017 – an advert showing a driver using a built-in screen on the dashboard was not found to be irresponsible as the driver was in full control of the vehicle and the distraction it caused was very brief.

9. Sixt Rent a Car Ltd – 19 July 2017 – various adverts presenting an individual using a phone in a stationary car, were not found to be irresponsible, promoting dangerous driving or in breach of the Highway Code.

FOOD AND DRINK

10. Beer52 Ltd – 26 July 2017 – an advert for alcohol was found to be in breach of the Code for, amongst other things, encouraging irresponsible drinking, being degrading to women and featuring a person who appeared to be under the age of 25.

GAMBLING

11. Intellectual Property & Software Ltd t/a 21.co.uk – 5 July 2017 – a gambling advert was found to be socially irresponsible as it implied gambling involves skill rather than chance and portrayed gambling in the context of toughness.

12. Coral Interative (Gibraltar Ltd) – 26 July 2017 – a gambling advert was held to be irresponsible as it implied that that gambling was better than just watching or playing the sport.

TRAVEL

13. TUI UK Ltd t/a Thomson - 05 July 2017 – an online deal listing a saving of £100 was not found to be misleading.

14. TUI UK Ltd t/a Thomson and First Choice – 05 July 2017 – an advert for a holiday at a specific hotel was found to be misleading as there was not sufficient information presented to the consumer of the basis of the discount.

15. Jet2Holidays Ltd- 05 July 2017 – the advert was misleading as the prices forming the basis of the discount had never been presented.

OTHER

16. Eden Farmed Animal Sanctuary t/a Go Vegan World – 26 July 2017 – an graphic and hard hitting advert published by a vegan group was not found to be misleading.

RETAIL

1. Laura Ashley Ltd – 19 July 2017

The ruling concerned two adverts, both identifying sale discounts. One, on the home page of the advertiser’s website, stated in the terms and conditions page of the website that the sale ended on 2 January 2017 and a post on the advertiser’s Facebook page similarly stated “Seasonal Offers …21 December - 2 January”.

Complaint / Decision

The complainant challenged whether the 2 January 2017 sale closing date was misleading as some sale items continued to be discounted in January.

The ASA dismissed the advertiser’s response that some of the winter sale products were further discounted in a separate January sale. It was considered that consumers would generally understand from the advert that, in order to take advantage of the price reduction, they would need to take the offer up by the 2 January, and the price would return to the original price after that date.

This ruling is unsurprising and serves as a reminder that advertisers should take care to identify accurately closing dates for sales promotions and not hold back-to-back sales containing the same products if a closing date for each sale is advertised.

2. Wren Living Ltd t/a Wren Kitchens – 26 July 2017

On its website, Wren Kitchens stated that it was “The UK’s Number 1 Kitchen Retail Specialist*”.

Complaint / Decision

The complainant challenged whether the claim that Wren was “The UK’s Number 1 Kitchen Retail Specialist*” was (1) misleading and could be substantiated; and (2) verifiable.

In relation to the No. 1 complaint, the ASA accepted that the small print relied upon by Wren qualified the claim, and made it clear that this was a reference to it having made the greatest number of retail sales in the sector, selling to consumers rather than to trade purchasers. Wren also provided a copy of its only real competitor, Magnet’s parent company’s 2015 annual report to illustrate that Wren had higher annual sales. The first challenge was therefore not upheld.

However, the second challenge was upheld as the ASA considered that it was reasonable to assume that consumers would be able to identify at least some of the competitors in the market. Therefore, Wren’s statement was considered a comparison against identifiable competitors and its failure to direct consumers to information to verify the claim was in breach of the Code. Although sources were listed below the claim, no sufficient detail was provided and one of the sources relied upon was not in the public domain.

The ASA always reviews substantiation for No. 1 claims very carefully but, in this case, the combination of the qualifying text and the substantiation provided meant this part of the complaint was not upheld. However, this ruling is a reminder that even where there is no direct comparison made, the ASA may still conclude that there has been a comparison with identifiable competitors, which will need to be properly verifiable by consumers.

3. Church & Dwight UK Ltd t/a Femfresh – 12 July 2017

A Video on Demand (VOD) advert for Femfresh bikini line shaving products featured several women, who were wearing briefs and swimwear, dancing. It included multiple close-up shots of the women’s crotches.

Complaint / Decision

Seventeen complainants challenged whether the advert was offensive and socially irresponsible on the basis that it objectified women and portrayed them in an overly sexualised way.

The ASA began by reminding the advertiser that, notwithstanding the clearance that they had received from Clearcast, the advertiser’s primary responsibility is ensuring compliance with the CAP Code. The advert had been placed next to programmes that were unlikely to have particular appeal to children, in line with Clearcast advice and steps had been taken to ensure that the advert was not served with inappropriate programming.

In upholding the complaint, the ASA considered that although it was relevant for the advert to focus on that area of the body and to show women wearing swimwear and fitness wear, the dance sequence was highly sexualised and was in the style of a music video, featuring many thrusting dance moves. The ASA considered that this went beyond the purpose of displaying the product advertised and that it was overly sexualised.

Adverts with a high level of sexualisation will always be vulnerable to challenges and this ruling serves as a reminder that advertisers cannot rely on the fact that the sexualised depictions in the advert are related to the product. Advertisers should adopt a balanced and responsible approach when producing advertisements that are likely to be sensitive to certain consumers, and, where appropriate, rely on careful targeting to reduce the likelihood of complaints or of complaints being upheld.

4. Top Shop/Top Man Ltd – 26 July 2017

Adverts on Top Man’s website for men’s jeans, amongst other items, were advertised as “Selling Fast! This item has been added to bag 29 times today” and “HURRY, SELLING FAST!”.

Complaint / Decision

The complainant challenged whether “Selling Fast!” and “HURRY, SELLING FAST!” appearing on the advertiser’s webpages for men’s jeans was misleading and could be substantiated as it was based on the amount of pairs added to bag rather than pairs sold.

In response, the advertiser relied on the high correlation between products which were added to bag and products ultimately purchased. The advertiser also disclosed that it used a digital tool to measure the fastest-selling products over a 72-hour period and displayed the ad for the top 250 products on its site.

The ASA noted that consumers were likely to understand that products which had been added to bag were more likely to be purchased than those which had not been added to the bag based on the basis that the consumer considered the product might be suitable for purchase. The ASA considered consumers would interpret the claims “Selling Fast” and “HURRY, SELLING FAST!” as meaning that product was in high demand. Further still, the report supplied by Top Man illustrated that, save for some divergence, the products which were most frequently added to bag were most frequently purchased. For these reasons, the ASA held that the claims were not misleading.

To help avoid falling foul of the Code, advertisers should think about the impact that their advert will have on consumers and how consumers are likely to interpret claims. Here, Top Man was able to stay compliant with the Code as consumers were likely to interpret its advert such that it was not misleading; it was clear that “Selling Fast!” meant the products were in high demand and the fact that other consumers had added the item to their bag illustrated this.

MOTORING

5. Inspop.com Ltd t/a Confused.com – 5 July 2017

A paid-for search result on Google, an email, a TV ad, a website and a regional press ad for Confused.com all stated that it was “No.1 for car savings”.

Complaint / Decision

A competitor, Gocompare.com, challenged whether the adverts were misleading on the basis that they could not be substantiated.

In response to the complaint, the advertiser stated that it had undertaken a market review to compare the car-related services available through it and the next three largest comparison websites in the UK, arguing that they offered savings on 23 of those products. The advertiser had consulted Clearcast to ensure the basis of the claim was clear. It also submitted that the adverts included qualifying wording to explain that being “No.1” was in relation to the opportunities to save, not the savings to be made on individual products.

The ASA upheld the complaints as the text “No.1 for car savings” was likely to be understood by consumers to mean that they would achieve greater savings on the products they purchased through Confused.com as opposed to its competitors. That is because the main purpose of comparison sites is to find the best value deal possible on the relevant product. The wording being relied upon as qualifying the claim was not sufficiently clear. Moreover, the qualification did not make it clear that the comparison was only in relation to the three largest competitors, and therefore suggested it was a comparison with the entire market.

This ruling can be contrasted with the ruling in Wren Kitchens (above). Although in both cases the advertiser claimed to be number one in its sector and provided market intelligence reports in support of their claims, here, the claim itself implied that consumers were likely to save more money with Confused.com than with their competitors, not that it offered more opportunities to save and despite the market report only investigating the advertiser’s three largest competitors. The key lesson, therefore, is that advertisers should be careful to ensure that their substantiation matches the claims which are likely to be understood by consumers and, if necessary, are clearly and properly qualified.

6. DSG Retail Ltd t/a Currys PC World – 26 July 2017

The advertiser’s website included a product page for the PC World Knowhow Cloud. Text stated “Once backed up, your files can be accessed whenever you need them, anywhere in the world” and “All your data is protected and backed up in our military grade encrypted UK based data centres. You can also secure the files on your computer, so if it’s ever lost or stolen your data is safe”.

Complaint / Decision

The complainant challenged whether the ad was misleading and exaggerated the performance of the product.

In upholding the complaint, the ASA considered that the advert implied that if something happened whereby their data was lost or stolen, this product would enable them to access their data, specifically by downloading their data, as it was, at a specific date, easily and in a timely manner. Further, the ASA held that the advert also implied that the claim the claim “Complete Security … All your data is protected and backed up in our military grade encrypted UK based data centres” implied that product would provide additional security benefits beyond those a standard cloud storage service would provide. The ASA noted that neither of the above were benefits of the product and the advert was therefore misleading.

The ruling serves as a useful reminder of the risk of exaggerating the capabilities of a given product.

7. John Hudson Trailers Ltd t/a Longstone Tyres – 29 July 2017

The ruling concerned two adverts seen in separate magazines showing sexualised images of women showing their lingerie, one apparently doing repairs to a vehicle tyre, and, the other with a stylised illustration of a red classic car in the background.

Complaint / Decision

Two complainants challenged whether the ads were offensive and irresponsible on the basis that the images were sexually explicit and objectified women.

The ASA noted that neither of the images were directly relevant to the product advertised. The advertiser sought to rely on the fact that the first advert contained a light-hearted genuine 1920’s photo, and the second advert was in period-style emphasising the classic car connection. The advertiser also made clear that both images had been used for a number of years. Nevertheless, the ASA agreed that the images objectified women and upheld the complaint.

This ruling serves as a reminder that adverts that contain sexually suggestive images that are not directly relevant to the product or service are particularly vulnerable challenge and are difficult to defend in an ASA adjudication. It is also clear that advertisers cannot rely on material from bygone eras, in this case a photo from the 1920s, in order to circumvent modern views of what is socially acceptable.

8. BMW (UK) Ltd – 19 July 2017

A TV ad for the BMW 5 Series showed a man driving through countryside and then through a city. At one point while he was driving, he swiped his hand across a built-in screen alongside the car’s dashboard. The voice-over stated “Introducing the new BMW 5 Series. Ambition raised”.

Complaint / Decision

The complainant challenged whether the ad was irresponsible on the basis that it condoned or encouraged dangerous or irresponsible driving behaviour prejudicial to safety and in breach of the Highway Code.

The ASA considered that the driver interacted with the screen only briefly and, when he did, there appeared to be no other vehicles in close proximity and visibility was good. The ASA compared the action to that of changing the volume on the radio, which requires a similar degree of distraction from the road and is permitted by the Highway Code, subject to the driver exercising control over the vehicle. As such, the ASA considered that the advert did not encourage irresponsible driving behaviour.

In accepting that momentary distractions when driving are both commonplace and unavoidable, this ruling highlights that the ASA will take a pragmatic view when assessing similar challenges, taking into account the driving conditions, the level of traffic and speed. The ruling serves as a reminder of the importance of using footage where the driver is not distracted and is in full control of the vehicle.

9. Sixt Rent a Car Ltd – 19 July 2017

Various adverts were aired showing people taking phone calls while in a car. However, the camera then panned out to show that the car would have been stationary the whole time.

Complaint/Decision

ASA acknowledged that the use of mobile phones in cars is a hot topic at present. The ASA referred to the Highway Code which requires the driver to “exercise proper control” of the vehicle at all times and bans the use of hand held mobiles.

However, each one of the adverts presented the cars being safely parked and the calls being clearly ended before the driver commenced the journey. It was also clear that the driver in each advert was in proper control of the vehicle.

This is an area advertisers always need to approach with caution. Although this advert was not found to be in breach, there have been other previous adverts where complaints have been upheld for apparently condoning or encouraging an unsafe practice, including two still relevant rulings from June 2008. Care must be taken to be able to demonstrate that an advert is compliant with the Highway Code.

FOOD AND DRINK

10. Beer52 Ltd – 26 July 2017

A YouTube video which was featured on the website of, and in a tweet by, Beer 52 starred a young man drinking various craft beers and interacting with other characters.

Complaint / Decision

The complainant challenged whether the content of the video (1) irresponsibly encouraged excessive drinking; and (2) was offensive due to the degrading portrayal of women. Meanwhile, the ASA challenged whether the video also (3) gave “undue emphasis” on the strength of the drinks; (4) linked alcohol with sexual activity; (5) implied drinking was a key component of successful personal relationships; and (6) featured a person in a significant role appearing to be under 25 years old.

In response, the advertiser stated that the video was an art project that was a satire on the stereotypes commonly used in advertising beer which it hoped would be clear to any viewer. The advertiser argued that the protagonist, “Beer Buddy” only finished one drink and his poor social skills provided a counterpoint to the female character’s honed social skills. The inclusion of the penis-shaped bottle opener was included purely for humour rather than to have any link to sexual activity.

The ASA upheld all of the challenges. In relation to the first and third challenges, the ASA considered that consumers would not understand that the beers were only being drunk for tasting purposes and references to the strength of the beer trivialised the importance of their alcoholic strength. In relation to the second, fourth and fifth challenges, the female characters were treated differently to the male characters in the advert and the protagonists’ interest in becoming friends with the viewer while consuming the beer implied that drinking alcohol was the key component of a successful personal relationship. Finally, in assessing the sixth challenge, the ASA considered that at least one of the characters appeared under 25 and as they played a significant role, the advert was in breach of the Code for being misleading.

Alcohol adverts will always be under strict scrutiny by the ASA and pressure groups. This ruling demonstrates the importance of considering whether satirical content is compliant with advertising standards. Satire can be difficult to judge when dealing with advertising for products likely to be under strict scrutiny and will not be a defence if the content of the advert is in breach of the Code.

GAMBLING

11. Intellectual Property & Software Ltd t/a 21.co.uk – 5 July 2017

The advert featured a man in a tuxedo sitting at a blackjack table with a voice-over stating: “His heart is pounding. His body is still. He shuffles his chips as he thinks. Heart versus head. Emotion versus reason. He makes his move. He makes his own luck”. The advert also featured close-up shots of the man’s face, showing one of his pupils dilate before he puts his chips and cards on the table.

Complaint / Decision

A member of the public raised a complaint that the ad referenced a psychological thrill experienced by gambling addicts and challenged whether it was socially irresponsible. In addition to this, the ASA:

1. challenged the claim “He makes his own luck” on the grounds that it implied gambling involves skill rather than chance, and therefore that the ad was socially irresponsible; and

2. challenged whether the ad portrayed gambling in the context of toughness.

The ASA rejected the complaint. It acknowledged that it was reasonable for consumers to experience some excitement when gambling responsibly, and that the signs of excitement of the man in the ad were ‘subtle and unlikely to suggest he was a problem gambler’. It also stated that there was nothing in the ad to indicate the man’s behaviour was compulsive.

Despite acknowledging that a player’s success at blackjack could be influenced by strategy, experience and skill, the ASA considered the statement “He makes his own luck” to over-emphasise the influence that strategy could have on the outcome of blackjack. The ASA also noted that the ad neglected to show that to a large extent success in the game was down to luck. As a result, the ASA held that the advert was in breach of rule 17.3.1 of the BCAP Code which prohibits portraying gambling that is socially irresponsible.

The ASA also found that the advert was in breach of and rule 17.3.8 of the BCAP Code which prohibits portraying gambling in the context of toughness or linking it to resilience or recklessness. The regulator noted that the man in the ad looked at the dealer and camera with ‘a confident gaze’ and that he bet all his chips in one hand. Therefore, whilst traditional depictions of physical male toughness did not feature in the ad, the ASA believed that viewers would consider the man to be displaying mental toughness and resilience in the face of taking a major risk (i.e. betting all his chips at once).

This ruling illustrates that the ASA is likely to consider ads which portray gambling (even for games such as blackjack which undoubtedly can involve a degree of strategy) as involving skill rather than chance as socially irresponsible. It also demonstrates that the ASA’s reading of rule 17.3.8 includes not only physical toughness, but also mental toughness too.

As with previous ASA rulings, it is also worth noting that although the TV ad was cleared by Clearcast, this did not preclude the ASA from ruling against the operator.

12. Coral Interactive (Gibraltar) Ltd – 26 July 2017

A TV advert for Coral featured clips of footballers playing football with a voice-over stating: “The beautiful game you can watch it or you can get involved in it with the latest Coral action. So are you a spectator or are you a player? You decide. Coral. Get in on the action.”

Complaint/Decision

Two complainants challenged the advert on the grounds that it is harmful to consumers and irresponsible because the voice-over implied that gambling on the sport was better than watching it and that only gamblers were true ‘players’.

Whilst the ASA recognised that the advert was neither pushy nor aggressively promoting gambling, it upheld the complaint. It considered that the overall tone of the advert implied that gambling on football was more exciting than simply being a spectator. The emphasis on the word ‘player’ in the voice-over contributed to the ASA forming this overall impression, as did the phrase “Get in on the action”. The regulator held that the latter implied that those who gamble are more involved or invested in the game than that those who do not.

The ASA concluded that the advert breached BCAP Code rule 17.3.5, as it was likely to suggest peer pressure to gamble and disparage abstention, and rule 17.3.6, as it unduly suggested that gambling could enhance personal qualities. The advert was also held to have breached rule 1.2 of the BCAP Code, which places a general social responsibility obligation on advertisers.

TRAVEL

13. TUI UK Ltd t/a Thomson – 05 July 2017

Thompson advertised a discount code for a £100 saving on summer holidays as part of their sale.

Complaint/ Decision

The complainant disputed the claim that there was a £100 saving as she believed her specific holiday had increased in price by £100 when the sale started, which offset the code.

The ASA investigated the complaint and the interpretation of the consumer of the discount, together with the advertiser’s evidence on how it carried out the pricing. The claim was not upheld as the ASA accepted the advertiser’s position that no active changes had been made in the time period. However, it made the point that a discount code is taken to meaning that there is a saving of £100 at the checkout on that transaction rather than a £100 saving on a price before the sale.

14. TUI UK Ltd t/a Thomson and First Choice- 05 July 2017

Two websites advertised a deal on the same hotel for a set figure including a reduction presented as ‘per person’ on the pre-discount price of £1800.

Complaint/decision

The complainant believed that those specific holidays had never been sold for that exact period at the full price of £1800.

The advertiser explained in detail the pricing processes for their holidays. Although they were unable to show any actual sales at the price of £1,800, they claimed the discounts quoted were honest and not misleading as they indicated that a consumer could obtain a package holiday worth £1800 for a lower price. In upholding the complaint, the ASA found that, although consumers appreciate that prices are not fixed and are constantly subject to change, the advert did suggest that there would be a real saving. The ASA considered that the foundation of a discount against the in-store price was not obvious enough and was likely to mislead. The ASA did not consider that the comparator prices had been made sufficiently clear to consumers, and therefore concluded the discount claims were misleading and had not been substantiated.

This highlights the importance of presenting savings in a clear format to ensure that the consumer can make an informed decision based on a genuine saving against comparator products or services – whether as discounts from the advertiser’s usual prices or against competitors.

15. Jet2holidays – 05 July 2017

A promotional email was sent with the subject line “Psst! Our £100pp* SALE has started!”. The contents of the email expanded on this stating “Make way for Jet2holidays New Year SALE with an incredible £100 OFF per person* on all holidays and city breaks”. The small print stated that this was only valid on bookings made on Saturday 14th January until 23.59 on Tuesday 17th January 2017.

Complaint/Decision

The complainant challenged whether this was a genuine discount. The promotional period had been incorrectly stated in the advert and so the complaint was inevitably upheld on that basis. Nevertheless, the complaint was also upheld on the basis that the advert was misleading in relation to its pricing more generally.

The ASA made clear that the consumer would interpret the statement to mean a genuine saving. However, although the advertiser sought to explain the dynamic pricing of its holidays, it was unable to show that the prices on which the discount was based, had existed. The ASA accepted that consumers would be aware of price fluidity, the lack of information on which the saving had been calculated meant a consumer was unable to ascertain if this was a genuine discount and therefore unable to make a balanced decision on the potential saving.

The main issue here was the lack of information given by the advert for consumers. The message to be taken from this complaint is to ensure that material information as to the basis of savings is clear and transparent to consumers.

OTHER

16. Eden Farmed Animal Sanctuary t/a Go Vegan World- 26 July 2017

A newspaper advert for Go Vegan World, a vegan campaign group featured a photo of a cow behind a piece of barbed wire. The headline text stated “Humane milk is a myth. Don’t buy it”. Smaller text stated “I went vegan the day I visited a dairy. The mothers, still bloody from birth, searched and called frantically for their babies. Their daughters, fresh from their mothers’ wombs but separated from them, trembled and cried piteously, drinking milk from rubber teats on the wall instead of their mothers’ nurturing bodies. All because humans take their milk. Their sons are slaughtered for their flesh and they themselves are slaughtered at 6 years. Their natural lifespan is 25 years. I could no longer participate in that. Can you?”.

Complaint / Decision

Seven complainants challenged whether the claim “Humane milk is a myth” and the accompanying claims were misleading and could be substantiated.

The ASA considered it would be clear that the ad was for a vegan pressure group, and that consumers would understand that the language used reflected the group’s strong beliefs on the dairy industry. The ASA agreed with the advertiser that readers would understand the claim “their daughters, fresh from their mothers’ wombs, but separated from them” to mean that calves were generally separated from their mothers very soon after being born, rather than to suggest a failure to comply with specific welfare standards. It was concluded, therefore, that as calves were generally separated from their mothers very soon after birth (with Defra recommending that calves should be kept with their mothers for at least 12 and preferably 24 hours after birth), the advert was unlikely to mislead consumers, notwithstanding that the language used was emotional and hard-hitting.

This is an example of some leeway being given to pressure groups using images and language that might otherwise be considered offensive. Advertisers should ensure that any claims used in provoking reactions can be substantiated.