ASA Adjudications Snapshot – July 2013

This summary provides a selection of the most interesting ASA adjudications in July, highlighting the key issues considered in those adjudications. July saw a number of ads for drink providers and demonstrates the strict approach with which the ASA will handle any ads that appear to be socially irresponsible, in particular when such ads can be seen to influence young people to drink excessively. There were also complaints in relation to the inadequate qualification of price claims (which is of continuing interest to both the ASA and the OFT) and, in the telecommunications sector, the misleading use of terminology such as “superfast” and “unlimited”, which may be interpreted by the consumer literally. Other complaints this month relate to promotions which risk objectifying women.

Also of note this month is the ASA’s high profile investigation into homeopathy claims. The ASA decided to establish a lead position on claims for homeopathy with the Society of Homeopathy and investigated whether such ads could discourage essential treatment for conditions that warrant medical attention and whether claims that homeopathy could treat certain conditions could be substantiated.

ADJUDICATIONS

COMPUTERS AND TELECOMS

1. Lycamobile UK Ltd, 10 July 2013 (“unlimited” usage ad for a mobile phone bundle was challenged as misleading)

2. Everything Everywhere Ltd t/a EE, 31 July 2013 (“superfast” broadband ad was misleading as the terminology “superfast” meant 24 or 30 Mbit/s whereas the EE phone was 8-12 Mbit/s)

FASHION

3. Junction One Ltd, 24 July 2013 (a poster for a shopping centre featuring a women wearing underwear and bunnies ears with the headline “Get more than you bargained for this Easter” was found not to be offensive or demeaning to women)

4. Sit-up Ltd, 10 July 2013 (an ad stating Klaus Kobec watches are “worn by A-list celebrities” was misleading and could not be substantiated)

FINANCE

5. PDB UK Ltd t/a Cash Lady, 31 July 2013 (an amended ad for payday loans featuring Kerry Katona was investigated and was found to be socially irresponsible)

FOOD AND DRINK

6. AG Barr plc, 10 July 2013 (complaints were received about an ad promoting IRN-BRU which looked at the use of a sexually suggestive and potentially offensive scenario, but in a humorous setting)

7. Hi Spirits Ltd, 17 July 2013 (Fireball Whisky Facebook page was found by ASA to encourage excessive drinking and exploit the young)

8. Heineken UK Ltd, 17 July 2013 (the ASA considered complaints that an ad featuring glass bottles being taken into a football stadium was irresponsible)

9. BrewDog Ltd, 24 July 2013 (a brewery website ad was found by the ASA as likely to cause serious offence by the language used)

GAMBLING

10. Bet365 Group Ltd, 14 July 2013 (the ASA considered whether a free bet ad was misleading as the Ts&Cs were two clicks away from the original ad)

HEALTH AND BEAUTY

11. Society of Homeopaths, 3 July 2013 (the ASA investigated whether homeopathy claims could discourage essential medical treatment and was misleading in that homeopathy could treat certain conditions)

TRAVEL AND TOURISM

12. BAI (UK) t/a Brittany Ferries, 31 July 2013 (the ASA considered whether the pricing advertised in a Brittany Ferries travel ad was misleading)

OTHER

13. Renault UK Ltd, 17 July 2013 (a complaint about an ad featuring images of women burlesque dancing was upheld by the ASA)

14. Royal National Institute of Blind People t/a RNIB, 3 July 2013 (complainants challenged whether an ad for age-related macular degeneration was scare mongering)

COMPUTERS AND TELECOMS

1. Lycamobile UK Ltd, 10 July 2013

The Lycamobile website included descriptions of various “all in one” bundles. Each ad stated “Unlimited UK calls and texts…Unlimited UK data…Unlimited Lyca to Lyca calls and texts…Unlimited international calls and texts to: …”. The ad then listed various countries. Small print stated that “Unlimited usage is subject to a fair usage of 3000 minutes/texts/MB per month per SIM. Usage in excess of your fair usage allowance will be charged at standard rates”.

Complaint/Decision

The complainant challenged whether the “unlimited” claims were misleading.

Lycamobile UK Ltd (Lycamobile) argued that the bundle offers were displayed in a clear, legible and unambiguous manger and contained material information which enabled consumers to make an informed decision whether or not to purchase the product. Lycamobile claimed that although the promotion was titled “unlimited”, this would not be interpreted literally when used in combination with a fair use policy (FUP). The small print provided customers with important information, namely what they could expect from the offer and once the offer expired. Lycamobile argued that it was reasonable to expect that the average consumer would take note of the fair use text before deciding to purchase. The use of unlimited claims together with an FUP was common in the telecommunications industry; consumers would be aware that unlimited elements of a package would be subject to an FUP. Lycamobile stated that only 2.72% of their customers who purchased an all in one bundle used the product up to the fair use cap.

The ASA upheld the complaint, considering “unlimited” to be a strong claim about the characteristics of the product. The ASA noted that the claim “unlimited” featured several times in the bundle description, which emphasised there were no restrictions on users’ calls, texts or data download, in terms of additional charges. Consumers were likely to expect that services, or features of services, described were not subject to undue restrictions. The ASA concluded that the information in the small print regarding the FUP contradicted the “unlimited” claims, rather than clarifying them, and therefore that the ad was misleading.

The ASA has adopted a strict approach to broadband providers who claim their services are “unlimited”. In March 2013 Virgin Media had complaints against it upheld by the ASA, which ruled that “unlimited” was intended to mean that there were no significant restrictions. It must be remembered that claims that services are “unlimited” will be interpreted by the ASA to mean that restrictions must be moderate and in line with consumer expectation, as per CAP’s Help Note on “unlimited claims in telecommunications advertising”.

2. Everything Everywhere Ltd t/a EE, 31 July 2013

Two advertisements for Everything Everywhere Ltd (EE) claimed “superfast mobile 4GEE broadband”.

The first website ad made references to “superfast mobile broadband” such as, “4GEE: AT LAST – SUPERFAST MOBILE INTERENET” and “4GEE Which brings us to now – with our 4G network which gives you superfast, reliable internet wherever you are”.

The second television ad featured Kevin Bacon making reference to the “UK’s only superfast mobile 4G network” and “Smartphone’s are better on superfast mobile 4G.” This was accompanied by the text, “Better based on average UK speeds: 3G: 1.5Mbps, 4GEE: 8 – 12 Mbps.”

Complaint/Decision

Complaints were made about both advertisements on the basis that references to “superfast mobile broadband” were misleading and exaggerated EE’s service because “superfast” was understood to be speeds of 24 Mbit/s and above.

EE responded to the complaint arguing that “superfast” was merely a descriptive term and that 4G was “five times faster” than previous mobile data speeds; EE believed the consumer would understand that it was “superfast” in the same way. Their own testing demonstrated that an average speed was between 8 and 12 Mbit/s and that this was a substantial improvement.

Clearcast supported EE in their argument that “superfast” would be understood by consumers to mean that it was faster than other types of mobile broadband. However, they said that the ad should include on-screen text to indicate the average speeds that were available.

The ASA believed that consumers would understand “superfast” to relate to fibre-optic outperforming standard ADSL and to be a standard industry term that had an agreed meaning. Ofcom had defined “superfast” as both greater than 24 Mbit/s and then 30 Mbit/s. The ad implied that achievable speeds were from 24 Mbit/s (and later 30 Mbit/s) where the actual speed would range from 8 – 12 Mbit/s. The ASA therefore upheld the complaint regarding the first advertisement as, without any qualification, the claim “superfast mobile broadband” exaggerated the speeds that could be achieved through 4GEE mobile. However the ASA did not uphold the second complaint as it concluded that it clearly stated what speeds were achievable from the 4G service and the ASA found it not to be misleading.

EE has previously been investigated by the ASA in relation to claims made by T-Mobile for “unlimited internet” for mobile phones. In its decision of 17 April 2013, the ASA told T-Mobile not to claim that there service was “unlimited” if there were restrictions on the service. As reported in previous snapshots (May and June 2013), advertising speed of broadband services should be unambiguous. Ads should not contain unproven or exaggerated claims. Each claim must be realistic for consumers and any qualifications about factors which may impact on the ability to run broadband at an advertised speed must be clearly displayed.

FASHION

3. Junction One Ltd, 24 July 2013

A poster for a shopping centre on the side of a bus which featured a women wearing underwear and bunny ears holding shopping bags. The headline stated “Get more than you bargained for this Easter”.

Complaint/Decision

The complainant challenged whether the ad was offensive and demeaning to women and was irresponsible and unsuitable for public display where it could be seen by children.

Junction One Ltd (Junction) responded claiming that the poster was part of a wider Easter themed campaign including a TV ad which featured models dressed as “Bunny Girls”. The campaign was light-hearted and humour-led. Junction took care to select a tasteful image and deliberately used a conservative lingerie design which exposed no more than a bikini or mainstream dress would. The poster was suitably targeted at 18-45 year olds and exposure to children was minimal.

The ASA did not uphold the complaints. Although the ASA considered the claim “Get more than you bargained for….” to be sexually suggestive, it noted this was not gratuitous or explicit. The ASA therefore concluded that, although some consumers may have found the image distasteful, it was unlikely to cause serious offence on the basis that it was demeaning to women. The ASA noted that the poster, featured on 25 buses, would have been seen by children but decided that they were unlikely to understand the sexual, connotations posed by the text. The ASA concluded that as the image alone was only mildly sexual, the ad was not unsuitable for public display where it could be seen by children.

This adjudication follows a similar approach to that taken in the somewhat controversial J D Williams & Company Ltd t/a Figleaves.com adjudication on 22 May 2013. These adjudications both show that the ASA will accept ads that feature models in underwear, but care needs to be taken with the portrayal of women in the ads and with any sexual innuendo used.

4. Sit-up Ltd, 10 July 2013

A teleshopping presentation, seen on Bid TV, offered a Klaus Kobec watch. The presenter stated “one of the great names of watches, worn by some of the most famous people in the world…they are regarded and worn by many A-list celebrities because they’re a statement piece…”.

Complaint/Decision

The complainant challenged whether the claims made by the presenter were misleading and could be substantiated.

Sit-up Ltd t/a Bid TV argued that the presenter was referring to an article from the Daily Mail regarding London Fashion Week in which the journalist stated “everyone backstage was wearing Klaus Kobec watches”.

The ASA upheld yet another complaint against Sit-up Ltd/Bid TV, considering that most consumers would understand the claims to mean that the watches were currently being worn by a number of celebrities. The ASA noted that the article referenced and submitted was from September 2007 and was therefore not sufficient to show that celebrities had been seen wearing the items recently. The ASA concluded that the claims were misleading as consumers might be tempted to purchase the item on the understanding that they were popular with celebrities.

There have now been over 50 adjudications in relation to Sit-up Ltd/Bid TV ads over the last five years, over 40 of which have been upheld, 27 of which since January 2012, with misleading price claims and misleading product descriptions being identified as two main problems, Sit-up Ltd were referred to Ofcom in May for consideration of statutory sanctions following repeated breaches of the BCAP code.

FINANCE

5. PDB UK Ltd t/a Cash Lady, 31 July 2013

Background

In May 2013, the ASA banned a television advertisement by PDB UK Ltd t/a Cash Lady (the Cash Lady) for www.cashlady.co.uk, a payday loan provider, featuring Kerry Katona (see May snapshot). The ASA concluded that the ad breached the BCAP Code in relation to social responsibility as it was irresponsible to focus on Kerry Katona, a figure experiencing financial trouble, as it may encourage people in similar situations to borrow money.

PDB released an amended version of this ad which had been checked by Clearcast. The most recent two television advertisements were similar to the original in that they featured Kerry Katona promoting the pay day loan service with accompanying text claiming that the Cash Lady offered “Fast Cash for Fast Lives.”

Complaint/Decision

Despite the developments surrounding advertising of the Cash Lady brand, the ASA received three further complaints also challenging whether the claim “Fast Cash for Fast Lives” was irresponsible and the use of Kerry Katona in the ads.

In relation to the first complaint concerning the line “Fast Cash for Fast Lives,” the Cash Lady explained that the text was no longer being used in most recent versions of the ad. It had been intended to promote their services as “quick” and “efficient”. They rejected the idea that the ad breached a level of social responsibility to the audience in that it promoted irresponsible borrowing or that the Cash Lady promoted irresponsible lending.

Clearcast had withdrawn clearance for this ad following the previous complaint, but said that the phrase was focused on those with busy working lives who needed a quick loan to plug a short-term gap in a budget.

The ASA upheld the complaint. The suggestion of undertaking a serious financial commitment with such speed and ease was found to breach the BCAP Code in relation to social responsibility simply meant that if people wanted to get a loan in a hurry, they could.

In relation to the second complaint regarding the use of Kerry Katona in the ads, Cash Lady defended their decision to use Kerry Katona based on her positive relationship with the public and high profile status. They rejected the suggestion by the ASA that the advertisements made reference to credit as a way of quickly resolving financial difficulty and that just because Kerry Katona had declared bankruptcy in 2008 did not render the ad irresponsible, which point was supported by Clearcast. Cash Lady strongly supported Kerry Katona and said to preclude her from advertising payday loans was “unduly harsh and unfair”.

The ASA nevertheless upheld the complaint on this basis. They considered that despite there being no reference to Kerry Katona’s financial history in the advertisement (her bankruptcy was filed four years beforehand), many viewers would be aware of this and would associate her with debt. The ASA considered that all financial products should be advertised with a strong sense of responsibility and expressed concerns that viewers could be influenced by her endorsement and make an irrational decision to obtain a quick payday loan.

This decision demonstrates that the ASA continues to scrutinise payday loan complaints, especially if they promote irresponsibility when borrowing or lending money in advertising.

FOOD AND DRINK

6. AG Barr plc – 10 July 2013

Two TV ads for the soft drink IRN-BRU, which were also featured on the IRN-BRU YouTube channel, the AOL website before a news bulletin and on a Video on Demand (VOD) service (STV), showed a mother cleaning the kitchen, when her son and two friends walked in. The mum looked at her cleavage and said “new push up bra. Amazing eh?”. The son’s friends stared at her breasts as her son looked on with a shocked expression. The son then took a loud sip of the IRN-BRU, smiled and said “Looking good mum”. His friends continued to watch the mother as she leaned forward to clean the table and then embraced her son against her chest. The son looked uncomfortable, but then drank more IRN-BRU and smiled. The mother asked “Group hug?” and the friends jumped from their chairs enthusiastically. The final scene showed the drink in front of two balloons with text stating “IRN-BRU” and “GETS YOU THROUGH”.

Complaint / Decision

The ASA received 176 complaints, mainly relating to the ad on TV. The complaints challenged (i) whether the ads were offensive and irresponsible because they considered that the scenario between the mother and young men was sexual and inappropriate; (ii) whether the ads were sexist and demeaning to women; and (iii) whether the TV ad was inappropriately scheduled at a time when children could have been viewing. The three issues were investigated, none of which were upheld.

i) In relation to the first complaint AG Barr plc (AG) responded stating that the premise of the campaign was using IRN-BRU to cope with awkward situations and this particular ad dealt with how parents could unwittingly embarrass their teenage children. AG had been conscious that the ads should stay true to the traditionally cheeky and irreverent sense of humour of IRN-BRU ads but should not objectify women, carry any tone of a sexual nature or cause offence. AG claimed that the central focus of the ad was the son’s embarrassment and the comedic and surreal concept that IRN-BRU would help him deal with such an awkward situation. The humour of the ad relied on the mum’s innocence. This was achieved by the mum’s matter of fact delivery of the text and the absence of any flirtatious tone.

Clearcast supported AG stating that IRN-BRU’s advertising was based on (and generally understood by viewers to be based on) a quirky humour, and a formula the brand had built up a reputation for in Scotland. Clearcast approved the ad on the proviso that the boys were over 18 and that the son overcoming his awkwardness by drinking IRN-BRU was a recurring theme in IRN-BRU’s advertising.

STV relied on Clearcast’s advice, although a schedule restriction around children’s programmes had been advised because the ad was for an HFSS (high in fat, salt, sugar) product, rather than because it was considered to be a risk of serious harm to children.

Google stated that the ad did not violate YouTube’s advertising policies. AOL claimed that they carried out a general review of the ads they showed but relied on advertisers to ensure that their ads were responsible.

The ASA noted that the characters in the ads were all adults over the age of consent. The action in the ads did not rely on the mum actively or overtly flirting with her son’s friends but was focused on the son’s embarrassment that his friends were showing an attraction to his mother. The mum behaved in a way in which she appeared to be unaware of the effect of her manner of dress. The ASA acknowledged that some behaviour, such as the mum’s offer of a “group hug” might suggest that she was conscious of the effect her manner of dress was having on the group, but instead concluded the purpose of her action was to form the basis of the humour in the ad, driven by the idea that the son’s embarrassment could be countered by drinking IRN-BRU. The ASA concluded that most viewers would interpret the situation as surreal and using a tongue in cheek humour rather than realistic and sexually inappropriate behaviour. The ASA therefore did not agree that the ads portrayed irresponsible behaviour nor that they were likely to cause serious or widespread offence.

ii) In relation to the second complaint, AG claimed that great care had been taken to present a normal mum and not a stereotype of a women that could be sexualised in any way. The mum was presented in a benign, homely environment and was in control of the situation.

The ASA noted that although the ad’s humour drew particular attention to the mum’s breasts, the action relied on the mum being confident and attractive and not consciously or overtly behaving in a sexualised or flirtatious way. The focus of the ad was on the son’s embarrassment. The humour was based on the surreal notion of using IRN-BRU to counter that embarrassment. The ASA therefore did not consider that the action or depiction of the mum to be sexist or demeaning.

iii) In relation to the third complaint, the ASA noted that the TV ad was subject to an “ex kids” restriction which prevented the ads from being broadcast in or around programmes directed at or likely to appeal particularly to children. The ASA considered that younger children would be unlikely to understand the basis of the humour and innuendo used in the ad. They did not consider that the content was overtly sexualised or was inappropriate to be seen by children, particularly when watching with adults.

This is in contrast to the ASA decision against Dreamscape Networks Ltd last month in which the ASA upheld the complaint judging the ad in this case to be sexist and degrading to women. Although AG were able to take advantage of an established reputation for humour in their ads, advertisers should be aware to the fact that the ASA can take a conservative approach to such ads.

7. Hi Spirits Ltd, 17 July 2013

The Facebook page for Fireball Whisky displayed various ads:

i) A post included a link to a blog titled “A day in the life of a University of Portsmouth Student”. The blog featured text about a “stamp game” which requires you to get “the most stamps you can, but the stamp is only valid if you have at least two shots per bar you’re in, so get your alcohol tolerance up fellow students. There’s reputation at hand here!”.

ii) A post included a link to a blog titled “A day in the life of a Lampeter University student”. The blog featured text which stated that “there is only one way to get as drunk as we want without being broke the next day…pre-drinks. As we were getting ready…the people I live with congregated…for pre-pre-pre drinks. Then pre-pre-drinks. Then pre-drinks. My room is the only one stocked with fireball whiskey [sic]…so its always the place where my housemates flock”.

iii) A post included a link to a blog titled “A day in the life of a University of Nottingham student”. The blog featured text which stated “you stumble over a…well, you don’t stumble over anything actually. You just stumble over. You sensibly and correctly conclude that you’re not drunk enough – time for the Fireball to come out!”.

Text at the foot of all three blogs stated a variant of “The views in this blog do not necessarily represent the views of Fireball and its staff. Fireball encourages everybody to drink responsibly”.

iv) A post titled “How much is your partner worth?” included an image of a t-shirt with the slogan “I’d dump my boyfriend for more fireball cinnamon whisky”.

v) A post stated “The only thing more important to me than Fireball is____?” and allowed people to comment and fill in the blank.

Complaint/Decision

The Youth Alcohol Advertising Council (YAAC) challenged whether ads i) - iii) were irresponsible on grounds that they were likely to exploit the young, immature and vulnerable and they encouraged excessive drinking and styles of drinking that were unwise. The YAAC also challenged whether ads iv) and v) were irresponsible because they implied that alcohol was indispensible and took priority in life.

Hi Spirits Ltd (Hi Spirits) explained that following a review of their social media advertising they had removed ads i) - iii). Hi Spirits argued that ads iv) and v) were not irresponsible and did not imply that alcohol was indispensable and took priority in life. Hi Spirits believed consumers would also not interpret the ads to mean that alcohol was indispensable and took priority in life and claimed the posts were written in jest.

Not surprisingly, the ASA upheld all the complaints. The presentation of ads i) - iii) encouraged excessive drinking and styles of drinking that were unwise and were likely to exploit the young. The ASA considered that the claim in ad iv) presented alcohol as taking over priority over personal relationships and therefore implied that alcohol took priority in life. Ad v) implied that only a single thing was more important than Fireball Whisky; this was highlighted by the responses which identified family members, breathing and other alcoholic beverages as the only thing more important than Fireball Whisky. For this reason the ASA concluded the ad presented Fireball Whisky as indispensable in life. The ASA considered the presentation of ads iv) and v) as socially irresponsible and therefore breached the Code.

Hi Spirits was also on the wrong side of an ASA adjudications in May 2013 in relation to ads displayed on its Fireball Whisky Facebook page, and follows the ASA’s decision to complain itself about an ad for a drinks promotion run by NoCurfew Events in June that was aimed at students. Although none of these adjudications was surprising, they illustrate that the ASA adopts a particularly strict approach in relation to the sensitive issue of encouraging excessive alcohol consumption by young people.

8. Heineken UK Ltd, 17 July 2013

A TV ad for Heineken beer featured a man on a remote island who received tickets for the Champions League Final at Wembley. The man is shown taking two bottles of Heineken with him and the ad tracks his journey to London on which he encounters a number of surreal circumstances including the border police scoring using a plum to score a goal through his Heineken bottles. The man is finally shown arriving at Wembley stadium by Chinook helicopter, taking his seat with a friend and they celebrate by clinking the two bottles of Heineken together.

Complaint/Decision

Fifteen complainants challenged whether the ad was irresponsible for condoning/encouraging the consumption of alcohol in a football stadium within sight of the pitch, which is an illegal activity. Six further complainants challenged the ad on the basis that the bottles were glass, as glass bottles are not permitted in a football stadium.

Heineken argued that the narrative of the ad set out a light-hearted fantasy, with “tongue in cheek” humour and a set of highly unrealistic scenarios. Heineken believed that it could easily be inferred by the viewer that the ad was showing one person’s fantasy. It was intended that the final stadium scene would be viewed as stylised and deliberately unrealistic. The ad could not be seen as condoning or encouraging crime, disorder or anti-social behaviour: the main character was not encouraging others to follow his actions. Clearcast, which had worked with Heineken to approve the ad, said that no-one was shown drinking alcohol in the ad, and that, as the green Heineken bottle was iconic and instantly recognisable with consumers, they considered there to be room for creative licence.

The ASA upheld the complaints on the basis that the ad was socially irresponsible. There was the implication that the characters were going to consume the beer during the football match (which Heineken appeared to have accepted in its submissions) even though they were not shown actually drinking. The ASA did not consider that the ad was obviously fantastical throughout. It was clear throughout that the character’s journey was to the Champions League Final at Wembley, an actual event at a real stadium. This was reinforced by the writing visible on the ticket at early stages in the ad and a poster passed in the stadium. The ASA therefore concluded that the ad could give the impression to viewers that such behaviour which was either illegal (consuming alcohol) or not permitted (glass bottles) in the stadium was acceptable, risking that viewers would copy this behaviour.

9. BrewDog Ltd, 24 July 2013

Claims on the home page of www.brewdog.com, a brewery website, stated “BrewDog is a post Punk apocalyptic mother fu*ker of a craft brewery. Say goodbye to the corporate beer whores crazy for power and world domination…Ride toward anarchy and caramel craziness. Let the sharp bitter finish rip you straight to the tits. Save up for a Luger, and drill the bastards”.

Complaint/Decision

An internet user challenged whether the language used in this ad was likely to cause serious offence.

BrewDog said that they had removed the claim from their home page but did not provide any further response.

The ASA, unsurprisingly, upheld the complaint. The ASA noted the asterisk used in “mother fu*ker” but considered its inclusion did not obscure the intended meaning, which was generally considered to be highly offensive and which was unacceptable in marketing communications. The general tone of the page and the language used, even though it was on the brand’s own website, in particular “mother fu*ker”, was gratuitous and likely to cause serious offence to some people who visited the website.

GAMBLING

10. Bet365 Group Ltd, 14 July 2013

An online banner ad for bet365 stated “£200 FREE BETS FOR NEW CUSTOMERS…JOIN NOW”. Smaller text below stated “Terms and Conditions apply”. The terms and conditions included a requirement to open an account with a £10 minimum deposit, entitling users to a 100% bonus on the deposit up to a maximum of £200. Users were also advised of the need to play through the deposit and bonuses three times before making a withdrawal.

Complaint/Decision

The complainant challenged whether the ad was misleading because it did not make clear that consumers would need to make a substantial financial commitment to receive the advertised £200 free bets and also that the deposit and bonus had to be played through three times before funds could be withdrawn.

Bet365 Group Ltd (bet365) argued that UK consumers were comfortable with “free bet” terminology, that such terminology was used as a standard by the industry, and that consumers were aware that such offers had conditions associated with them. The banner ad had been amended following a previous ASA adjudication so it included the text “Terms and Conditions apply”. The landing page at which consumers would arrive after clicking on the banner ad also included the text along with a hyperlink labelled “Terms and Conditions Apply”. This hyperlink took users to the conditions of the promotion. Bet365 argued that the banner ad indicated that there were conditions associated with the offer and the layout of the website was such that consumers could not take advantage of the offer without first seeing the terms and conditions.

The ASA upheld the complaints. The ASA noted that the terms and conditions attached to the promotion were likely to affect a consumer’s decision to sign up to bet365. The terms and conditions could be located once visiting the website, but if a consumer clicked on the banner ad details of the significant conditions would not be immediately seen. Instead these were a further click away from the landing page. The ASA stated that in order to be sufficiently prominent significant conditions likely to affect a consumer’s decision to participate in the promotion should have been displayed on the banner ad or no further than one click away from the ad itself. As the conditions were not displayed with significant prominence, the ASA concluded that the ad was misleading.

As with the Bonne Terre Ltd and Betway Ltd decisions last month the ASA requires all qualifying information or terms and conditions on websites to be within one click of the original statement.

HEALTH AND BEAUTY

11. Society of Homeopaths, 3 July 2013

Following the online remit extension in 2011 the ASA received a large number of complaints about claims relating to homeopathy that appeared on several websites. As a result, the ASA conducted an investigation to determine the acceptability of the type of claims being made for homeopathy. As the Society of Homeopathy had access to the relevant evidence, the ASA considered this case to be suitable to establish a lead position on claims for homeopathy. The adjudication received a significant amount of media coverage.

Complaint / Decision

Ad (a): The Society of Homeopaths’ (Society) Twitter page included a tweet “Antidepressant prescriptions up by 43%. For more holistic healthcare which doesn’t rely on drugs try #homeopathy”. A link to the Society of Homeopathy’s home page was provided.

Ad (b): The Society’s website ran a web page which included text stating that homeopathy can be considered in almost any ill health and that often homeopaths see patients with problems which have failed to respond to conventional medicine. Under the subheading “Research” further text stated “there is a growing body of research evidence suggesting that treatment by a homeopath is clinically effective….there is sufficient evidence to support the use of homeopathic treatment for the following conditions…”. Following this was a list of conditions ranging from allergies and ankle sprain to chronic fatigue and rheumatic diseases.

The ASA challenged the two ads on as to whether the ads could discourage essential treatment for depression and misleadingly imply that homeopathic remedies could alleviate symptoms of depression or the other identified conditions for which medical treatment should be sought; and whether the ads were misleading in stating that homeopathy could treat such medical conditions and the claims could therefore not be substantiated.

The Society responded arguing that the tweet was related to a news story run by a national newspaper which reported figures provided by the NHS. It claimed that the advert complied with the CAP Code because it made no reference to diagnosing depression, which is beyond the members’ professional remit. The ad merely described homeopathy as more holistic and deliberately implied that homeopathy could treat depression as it believed that this was capable of substantiation, providing a study in support. The Society argued that there was nothing on the web page which discouraged patients from seeking medical treatment. The Society stated that it was committed to promoting integrated healthcare which was clear from their website text “Homeopathy can be used alongside conventional medicine”. The Society highlighted that since the ad was initially seen, the wording claiming that current evidence supports homeopathic treatment of certain conditions had been amended; the new wording suggested positive findings from the “majority of clinical trials”.

The ASA upheld this aspect of the complaint. The CAP code states that marketers must not discourage essential medical treatment for conditions for which medical supervision should be sought, including offering specific advice on the treatment for such conditions unless conducted under the supervision of a suitably qualified health professional. The ASA considered depression to be a condition for which such medical supervision should be sought. It was concluded that the reference in ad (a) to antidepressant prescriptions and the invitation to try homeopathy was evidence that the ad was targeting consumers with a pre-existing diagnosis of depression and who are therefore particularly vulnerable people. The ad encouraged such people to visit the Society’s home page and consider consulting a homeopath with a view to obtaining advice on or treatment for their depression. The ASA noted that “homeopath” is not a protected title in the UK and that the practice is not subject to statutory regulation. The ad referred to homeopathy in general rather than a specific individual so the advertiser could not demonstrate that all such treatment would be conducted under the supervision of a suitably qualified health professional.

The ASA noted that ad (b) listed a number of medical conditions. The ASA considered the conditions individually, concluding that the ad targeted those with a pre-diagnosis of these conditions, or who were suffering from those symptoms, or who anticipated the possibility of suffering from these at some point in the future, and were therefore particularly vulnerable. Consumers would interpret the claims in the ad to mean that robust scientific evidence supported the use of homeopathy to treat the listed conditions despite the new wording.

The CAP Code states that objective medical claims must be backed by evidence assessed on the basis of available scientific knowledge. Evidence of self-reported benefits was therefore not sufficient. The ASA noted the House of Commons’ Science and Technology Committee’s Evidence Check 2 report which was an investigation conducted in 2009 into British Government policies on the provision of homeopathy via the NHS and which looked at efficacy and whether the product is shown to have effect in controlled conditions as being central to evidence. The ASA’s expert considered this to be a robust and fair examination for the efficacy of homeopathy. The conclusion was that homeopathic products were not efficacious because they produced effects no better than those of a placebo treatment.

The ASA’s expert reviewed The Society of Homeopath papers, concluding that there were general weaknesses in the evidence due to the lack of independent confirmation of reported trials and the presence of conflicting results. Moreover much of the evidence provided by the Society was not in English. The ASA only reviews evidence in English.

From the evidence reviewed, and the lack of efficacy throughout, the ASA concluded that the claims were misleading and had not been substantiated.

The ASA also re-issued an earlier adjudication Homeopathy: Medicine for the 21st Century for an advertisement for a pro-homeopathy organisation headlined “Homeopathy cares”, which contained 13 claims under various sub-headings such as: “Homeopathy has a history of success in chronic illness”, “Homeopathy offers a caring alternative” and “Opposition to homeopathy is based on propaganda” where the ASA had changed the wording but had not changed its decision. It had upheld a number of complaints on the basis that the claims made could not be substantiated or were misleading, but had not upheld certain of the complaints where it considered there was enough evidence, mainly as to more straightforward statistical claims which did not discourage people from seeking essential treatment for conditions for which medical treatment should be sought.

TRAVEL & TOURISM

12. BAI (UK) Ltd t/a Brittany Ferries, 31 July 2013

Prices advertised on www.brittany-ferries.co.uk for a holiday cottage were listed as “£550 to £700 per week” which included property rental for 1 week and return ferry to France. Further claims stated “Holiday Prices – 06 Jul 2013 – 30 Aug 2013 Ferry Inclusive price: £700.” Wording further down the website referred to weekend and seasonal supplements at certain times of the year.

Complaint/Decision

The complaint alleged that the website claim was misleading and could not be substantiated as he was quoted £870 to book the cottage in July or August and that the advertised price did not include weekend or seasonal supplements.

BAI (UK) Ltd (Brittany Ferries) presented evidenced that the holiday was available at the advertised price of £700, but only on certain days and only on a particular crossing.

The ASA upheld the complaint, concluding that the advertisement was misleading. Although, the ad included a link to a pricing summary which gave the full information, the complainant believed from the headline claim that £700 was the total he would pay. The ASA concluded that consumers would interpret the headline claim as £550 being the cheapest and £700 being the most they would pay. As this was not the case and up to £940 could be charged, the ad was misleading.

Pricing claims are always a key focus of the ASA, and also of the OFT. The advertising codes require advertisers who quote prices to be clear and up-front with consumers and to list all fees and charges that apply. Also, small print should always only clarify, and not contradict headline claims.

OTHER

13. Renault UK Ltd, 17 July 2013

A YouTube ad featured hidden camera footage of two men test driving a Renault Clio around London. They pushed a button on the dashboard labelled “Va Va Voom” which moved a screen featuring a Parisian scene in front of the car. The ad then showed a group of women in burlesque lingerie dancing around the car. One woman blew a kiss to the Renault driver. The final scene showed the women walking away and the screen was moved away to reveal a billboard which said “Reignite your Va Va Voom.”

Complaint/Decision

A complaint was brought challenging that the ad was offensive and objectified women.

Renault UK Ltd (Renault) stated that the ad did not objectify women as it portrayed the women solely in reference to the Moulin Rouge in the context of French culture. The women were dressed in typical Parisian style clothing and the typical burlesque choreography was not intended to be of a sexual nature. Renault argued that the ad was intended to be viewed by a younger adult audience on mainstream YouTube channels.

YouTube said that the ad did not violate any of their policies but it was the responsibility of the advertiser to ensure that the ad complied with the Code.

The ASA upheld the complaint, concluding that the ad objectified the women by portraying them as sexual objects. There was a risk that the ad could cause widespread offence to the audience. Although appreciating that the ad was intended to be a light-hearted parody, the ASA considered that, in light of the length of the relevant scene and the sexual focus of a number of the shots, the women were being portrayed as sexual objects and the ad was therefore likely to cause serious or widespread offence.

The attempt to target the ad on YouTube, which can often be successful when considering potential offensiveness in advertising, clearly did not succeed here. This ad just went too far; even only a slightly toned down approach would have been likely to have been acceptable.

14. Royal National Institute of Blind People t/a RNIB, 3 July 2013

A radio ad for anti-blindness charity, “Royal National Institute of Blind People” (RNIB) stated that, “some types of AMD (age-related macular degeneration) can destroy your sight in just three months. If you are over 50, you’re most at risk.”

Complaint/Decision

The complainants challenged whether the ad was scare-mongering and likely to cause “undue fear or distress to people over the age of 50”.

The RNIB, supported by the Radio Advertising Clearance Centre, argued that they had conducted extensive research and run focus groups so to understand better how to advertise in order to raise awareness about AMD. The RNIB wished to attract the audience’s attention to the issue without causing distress. The ad avoided words such as “blind” and made it clear to the audience that only some types of AMD would progress to the final stages within three months. They found it was also accurate to state that those being over the age of 50 were most at risk as the disease was rarer among young people.

The ASA took the view that the ad was created to raise awareness of the symptoms of AMD. They understood that most listeners would interpret the claim to mean that the damage caused by AMD would be irreversible rather than leading to total blindness. The advertisement provided a telephone number and website address which included clear information on what to do to prevent unnecessary sight loss. Further, it was understood that the incidence of AMD increased further with age, but simply being over the age of 50 did not mean one would develop the disease.

The ASA agreed with the RACC in that the tone of the voice-over was calm and provided clear instructions on how to access further help and advice if need be. The ASA therefore did not uphold the complaint and concluded that the ad was not socially irresponsible or likely to cause undue fear or distress to people over the age of 50.

The ASA is always more likely to accept ads from charities or non-profit bodies which might otherwise be considered as likely to cause undue fear or distress, or to cause offence.