ASA Adjudications Snapshot – August 2013

This summary provides a selection of the most interesting ASA adjudications in August and highlights the key issues considered in those adjudications. August saw several complaints concerning ads for food products. There were also a number of interesting examples of instances where the ASA focused on the necessary substantiation for claims made and where the ASA took a strict line as to whether conclusive evidence could be provided in support of claims made by advertisers. This month saw the ASA also take a strict approach to the denigration of an organisation such as the Food Standards Agency. Also of interest this month is Heineken’s ad for Bulmers cider which received complaints as to whether it encouraged irresponsible drinking. The complaint was not upheld. This shows, particularly by comparison with previous alcohol ads, that there is a fine line to avoid encouraging irresponsible drinking.

It is also of note that the ASA received 504 complaints in relation to an ad for Marmite which showed the Marmite Rescue Team recovering and re-homing neglected jars of the spread, shot in a mock-documentary style and featuring a voiceover by newsreader Michael Buerk. The complainants claimed that the ad was in poor taste and offensive, some argued that it trivialised the work of animal and child protection agencies, whilst others complained that the ad was unsuitable for children and might cause distress to people who had been victims of abuse. However, the ASA sensibly decided against launching an investigation into the advertisement. This is a good example of the fact that even where a very significant number of complaints are received (often on the basis of offensiveness), the ASA will often decide against investigating a complaint.

ADJUDICATIONS

BUSINESS

1. Knowle Nursery School Ltd, 14 August 2013 (misleading claim on school website)

2. CORGI HomePlan Ltd, 28 August 2013 (pricing comparisons in advertisement for central heating and hot water maintenance)

3. Village Hotels & Leisure Ltd, 14 August 2013 (the availability of discounted rooms was challenged)

COMPUTERS AND TELECOMS

4. UK-battery-shop.co.uk, 14 August 2013 (a website selling laptop batteries implied it was located in the UK)

5. British Sky Broadcasting Ltd t/a Sky, 14 August 2013 (an ad for Sky broadband was found to be unclear about the commitment required of consumers to qualify for an offer)

FOOD AND DRINK

6. Iceland Foods Ltd, 21 August 2013 (an ad which stated that horsemeat was not found in Iceland burgers and which implied that the tests undertaken by the FSAI were not credible was found to be denigratory)

7. Walkers Snacks Ltd, 28 August 2013 (prizewinners of a promotion were either not contacted by Walkers or insufficient effort was used to contact them, to inform them that they had won a prize)

8. Heineken UK Ltd, 28 August 2013 (A TV ad for Bulmers depicting a group of people in various scenarios during their evening was challenged as encouraging irresponsible drinking)

9. Unilever UK Ltd, 28 August 2013 (Three ads for a new flavour of Pot Noodles made comparisons between the spiciness of the flavour and hotness of a featured woman were challenged)

GAMBLING

10. Game Retail Ltd t/a GAME.co.uk, 21 August 2013 (A promotion for trade-in offers was challenged on grounds that complainants had been refused the offer)

HEALTH AND BEAUTY

11. Liverpool Cosmetic Surgery Ltd t/a The New Birkdale Clinic, 21 August 2013 (Promotion of cosmetic surgery must be clear as to the time frame of the offer and must not pressurise the consumer to purchase)

12. Beiersdorf UK Ltd t/a NIVEA, 28 August 2013 (an ad for anti-aging cream underwent extensive post-production work)

MEDIA

13. News Group Newspapers Ltd t/a The Sun, 7 August 2013 (Four ads for The Sun newspaper contained references to sex and “ten sexiest babes” competition)

LEISURE

14. Barnes & Noble Inc t/a Nook, 21 August 2013 (stock of an e-reader was so depleted in response to an offer that consumers were unable to purchase the product)

15. Electronic Arts Ltd, 14 August 2013 (ads for a new game of SimCity promoted features which were either not included in the final game or their implementation had significant delays)

UTILITIES

16. Good Energy Ltd, 7 August 2013 (a website stating that Good Energy was the leading 100% renewable electricity supplier was found to be misleading)

RETAIL

17. Stanley Black & Decker UK LTD, 7 August 2013 (an ad for a mop was found to make claims that could not be substantiated)

BUSINESS

1. Knowle Nursery School Ltd, 14 August 2013

Claims on the Knowle Nursery School Ltd (Knowle Nursery) website stated that “Knowle has received @Best overall ‘OFSTED’ report – 5 inspection judgements awarded ‘OUTSTANDING’”.

The complainant challenged whether the claims implied the nursery had a current ‘Outstanding’ OFSTED rating when they understood this was not the case.

The claim was factually correct of the 2011 report. However, not surprisingly the ASA considered that parents would interpret such a claim as referring to the school’s most recent report. The ASA noted that Knowles nursery was inspected in 2012 and given an “inadequate” rating. The ASA therefore concluded that the claim was misleading and could not be substantiated.

The adjudication shows the wide remit of the ASA and that it will cover any marketing claim on websites.

2. CORGI HomePlan Ltd, 28 August 2013

A website, www.corgihomeplan.co.uk, and a direct mailing for CORGI HomePlan (Corgi), a central heating and hot water maintenance company:

a. The website stated “CORGI HomePlan comparison Chart”. Under the headings, comparisons of cover and price were made between different boiler protection plans amongst Corgi’s competitors. The price for British Gas HomeCare 400 plus Time Choice was stated as £32.00/month. The price of Corgi was £34.00 crossed through to state a new price of £16.99 which was linked with “++” symbols to footnote text which stated “Price surcharges may apply in and around the M25”.

b. The direct mailing stated “because your boiler is relatively new, sign up this winter with CORGI HomePlan and you’ll get 3 maintenance plans for the price of 1, saving you £13.01 every month (£156.12 per year) ++ over the equivalent cover from British Gas and we’ll give you a free boiler replacement if we can’t repair your existing one”. “++” linked to footnote text stating “Price surcharges may apply in and around the M25”.

Complaint / Decision

British Gas challenged this advertising on four counts, on the basis that it was misleading and could not be substantiated and that the direct mailing omitted significant limitations of the Corgi policies.

The ASA upheld the first three complaints.

Corgi had erroneously included BG’s product, TimeChoice in their comparison, although it was not an option that was offered to new customers. Whilst the ASA did not doubt that Corgi had originally made the claim in good faith it considered that Corgi would need to hold conclusive evidence that TimeChoice was being widely offered to new HomeCare 400 customers and was generally available to them before making the claim again. The ASA concluded that the claims were misleading as Corgi did not hold adequate evidence.

The ASA concluded that the website ad did not contain the necessary information with regard to the £34/ monthly standard price, which had not yet been charged and the £16.99/month introductory offer and was therefore misleading. In order to make an informed decision, respondents needed to be aware of what the two prices represented.

The fourth complaint was not upheld. The ASA considered that the claim was not misleading and accepted that the limitations and qualifications would be inevitable and were clearly stated.

Advertisers should take care when advertising price comparisons and be sure that they can substantiate a claim with conclusive evidence to support any claim.

3. Village Hotels & Leisure Ltd, 14 August 2013

A website for De Vere Village Urban Resorts featured a price grid on their “latest offers” page. The grid featured text in the “offer” column which stated “Getaway Break – 1 night B&B”. Text under the corresponding “Price from” column stated “£94.00 per room”.

Complaint / Decision

The ASA received one complaint regarding the ad which challenged the availability of rooms at the advertised “from” price.

Village Hotels & Leisure Ltd (Village Hotels) said that a number of rooms were available at the advertised “from” price throughout the advertised period. They provided a spreadsheet detailing purchases at the advertised price and a sample of invoices to support this, however they could not determine the number of rooms available at the advertised rate because they used a revenue management system, which based availability on demand and uptake, rather than a predetermined target.

The ASA upheld the complaint and stated that consumers would understand that the ad meant that a reasonable number of rooms would be available at £94 throughout the stated date range. The ASA was concerned that they had not seen evidence to demonstrate the number of rooms available, at the advertised price, as a percentage of the total rooms available. In addition, the ASA was concerned that Village Hotels were not able to determine the number of rooms available at the advertised rate. The ASA concluded that it had not seen sufficient evidence to demonstrate that a reasonable number of rooms were available to book for £94 in a relatively even spread across the travel period.

Advertisers should always take care when advertising prices as “from” a particular price to ensure sufficient availability at that lower price. Advertisers must also be aware of the BIS Price Practices Guide which states that general offer notices should not be used unless the maximum reduction quoted applies to at least 10% of the range of products on offer at the commencement date of the sale.

COMPUTERS AND TELECOMS

4. UK-battery-shop.co.uk, 14 August 2013

A website selling laptop batteries, listed products in pounds sterling and featured on its home web page a box headed “Shipping Method” which included the Royal Mail logo and text stating that “all orders are shipped by Royal Mail unless otherwise stated”. A web page headed “About Us” included text which stated that “All queries or issues can be answered online or by our specialist team of UK based advisors…”, “The shipping cost of each order is £4.99” and “Normally the post takes 4-5 business days to delivery [sic] parcel to our customers…”.

Complaint/Decision

A complainant challenged whether the website was misleading as it gave the impression the company was based in the UK when he understood they were based in China.

The ASA concluded that the claims were misleading because the references to the Royal Mail, the listing of prices in pounds sterling, the short delivery time and “UK-based advisors” implied that the company was a UK-based company.

The ASA instructed UK-battery-shop.co.uk not to misleadingly imply that it was based in the UK and to make their geographical location clear to customers. This is similar to the decision of Kitchenideasscotland.co.uk in June 2013. This adjudication highlights the ASA’s focus on potentially misleading website addresses featuring “.co.uk”.

5. British Sky Broadcasting Ltd t/a Sky, 14 August 2013

A television advertisement for Sky Broadband featured Bruce Willis complaining about his current broadband service. A character in the ad stated that he could “try Sky Broadband, it’s totally unlimited…”. The on-screen text stated, “Price for Sky TV customers. Sky Talk & Line rental (£14.50 per month) required”. The voice-over stated, “Demand more from your broadband. Sky Broadband unlimited is £7.50 a month, which is less than half BT’s standard price.”

Complaint/Decision

A viewer challenged that the ad was misleading, as it did not make clear the extent of the commitment consumers would have to make in order to receive the service at £7.50 a month.

Sky stated that a consumer must take Sky Line Rental in order to obtain the Sky Broadband Unlimited service, and although it was not a requirement to subscribe to Sky TV, broadband prices would be different for Sky TV customers (£7.50/month) and for non-Sky TV customers (£10/month). Sky insisted that all the necessary information about consumers’ commitment was on-screen in the ad (that it was necessary to take Sky Line Rental at £14.50 a month and to be a Sky TV customer).

The ASA upheld the complaint concluding that the advert was not clearly directed at existing Sky customers and that it was particularly important that the conditions Sky had stated were to be shown prominently in the ad. Broadband ads are a continuing focus for the ASA. Advertisers should take care to make sufficiently clear the commitment demanded of consumers to obtain an offer.

FOOD AND DRINK

6. Iceland Foods Ltd, 21 August 2013

A national press ad, was headed “FOOD YOU CAN TRUST…Iceland has always led the way in developing Food You Can Trust.” Further text included “No horsemeat has ever been found in an Iceland product*”. Text underneath stated “*Recent testing by the Food Safety Authority of Ireland (FSAI) found traces of equine DNA at one tenth of one percent in two Iceland Quarter Pounder burgers. The testing method used by the FSAI was not an accredited test and the current accepted threshold level is 1% (10 times the level reported in the Iceland product). Subsequent tests of the same batch of burgers carried out by accredited independent laboratories, found no evidence of contamination”.

Complaint/Decision

One complainant challenged whether the ad was misleading as the claim “No horsemeat has ever been found in an Iceland product” was contradicted by text stating that 0.1% equine DNA was found in Iceland burgers. The complainant also challenged whether the ad denigrated the FSAI.

The ASA did not uphold the complaint that Iceland was misleading in their claim that no horsemeat was found in their products. The ASA acknowledged Iceland’s assertion that numerous tests were carried out. The ASA did note however that the further tests carried out by Iceland were conducted in laboratories which only reported positive findings for horse DNA at the level of 1% or more. The additional tests therefore could not call into question the FSAI’s test results because it wasn’t possible for them to deduct horse DNA at the levels found by the FSAI tests. However, the ASA also noted that additional tests which could detect less than 1% horse DNA were conducted and did not find any present.

The ASA noted that Iceland had intended to convey a distinction in the ad by referring to horse “meat” in the main claim and horse “DNA” in the explanatory text which referred to the 1% threshold. Whilst the FSA and FSAI did not make such a distinction the ASA considered that consumers would understand from the ad’s explanatory text the distinction that Iceland was conveying i.e. that the levels found in Iceland produce were so low that it was regarded as trace levels, likely to have been caused by accidental carry-over. The ASA concluded that the ad was not contradictory or misleading in this regard.

However, the ASA upheld the complaint that the ad discredited the FSAI. Although the ASA acknowledged that Iceland had amended the text of the ad after having been contacted by the FSAI, they had concerns over its description of the FSAI tests. By omitting reference to certain accredited tests carried out by the FSAI; by not making clear that the test methodology used in the FSAI’s initial tests was an established methodology commonly used in North America; and by highlighting that Iceland’s tests were carried out by an accredited independent laboratory whilst omitting that information in relation to the FSAI’s tests, the overall impression created by the ad was that the FSAI had not taken due care to ensure the accuracy or validity of the tests used, and therefore that its findings were questionable. The ASA understood that this was not the case and concluded that the ad discredited the FSAI.

The Grocer ran an article highlighting that Iceland’s ad had breached the CAP code and must not appear in its current form due to the denigration of the FSAI. This shows the ASA’s strict attitude to any advertising which discredits or denigrates organisations and the risk of adverse publicity where a complaint is upheld, even where aspects of the complaint were not upheld.

7. Walkers Snacks Ltd, 28 August 2013

A prize promotion, for Walkers Deep Ridge crisps, featured terms and conditions that stated “The winners will be drawn at random from all valid entries received by the closing date under independent supervision on 17th December 2012. The winners will be notified by telephone on the number used for their text entry by no later than 21st December 2012. The prizes must be claimed by 31st December 2012. All reasonable effort will be made to contact the winners, if any of the prizes are not claimed by 31st December 2012 an alternative winner will be chosen at the Promoter’s sole discretion…The names and counties of the winners will be available between 1st February 2013 and 1st April 2013 upon application with a SAE to Walkers Deep Ridged Scratch card Competition…”.

The Institute of Promotional Marketing challenged whether the promotion had been properly administered, because:

1. when a copy of the list was obtained, only the first names of the winners were given; and

2. only nine of the 41 prizes had been awarded, when the competition had ended over three months before.

The ASA upheld both complaints, concluding that the promotion had not been properly administered. The CAP Code requires promoters to publish the name and country of major prizewinners. The ASA considered that, in the interests of transparency, the full names should have been published to satisfy this Code requirement. The ASA was concerned that Walker’s records showed that prizewinners were only called once and that there was no attempt to contact prizewinners again if they did not answer on that occasion. Whilst records confirmed that some prizewinners were left voicemails, the ASA considered that more than one attempt should have been made to contact each winner. Prize promotions are subject to detailed and somewhat convoluted rules and often subject to complaints from unsuccessful participants.

8. Heineken UK Ltd, 28 August 2013

A TV ad for Bulmers cider, showed the night out of groups of young people in reverse. They were shown drinking Bulmers in some of the scenarios, in particular those at the end of the ad (the beginning of the night). A voice-over stated, “We don’t have a master plan, so we don’t know where the night will take us. But one thing is certain. It will begin with Bulmers”.

Complaint / Decision

A viewer challenged whether the ad condoned irresponsible drinking because he believed it implied the success of a social occasion was always dependent on alcohol.

Heineken UK Ltd (Heineken) responded that the ad was intended to show Bulmers as the drink its target audience chose at the beginning of a social occasion and that Bulmers drinkers might take a spontaneous approach to an evening out. Heineken argued that the ad was prepared with a sense of responsibility and scripts were amended following advice from Clearcast. Heineken argued that there was nothing in the ad which encouraged irresponsible or immoderate drinking. None of the characters depicted were shown with more than one drink in their hand and their behaviour did not appear irresponsible or affected by the consumption of alcohol. Heineken asserted that alcohol was not a key component of the ad and therefore there was no argument that it was a key component of the success of the social occasions depicted in the ad.

Clearcast endorsed Heineken’s response and added that a restriction ensured that the ad was not broadcast in or around children’s programs. The actors in the ad were over 25 and appeared to be so. Clearcast supported that they believed the ad showed alcohol being consumed in a responsible fashion and nothing encouraged irresponsible or immoderate drinking.

The ASA did not uphold this complaint. It considered the overall impression of the ad was such that viewers would understand the strap line, and the general message of the ad to be that the young people depicted were enjoying social occasions and had shown a brand preference for Bulmers. The ASA did not consider that the success of the evening was depicted as dependent on alcohol. It was noted that the product was shown on only a few occasions and that the characters did not appear to behave as though they had consumed alcohol irresponsibly.

This is a particularly interesting adjudication which clearly demonstrates the fine line between those ads which do breach the Code for encouraging irresponsible drinking and those which do not.

It is interesting to compare this ad in particular with another cider ad for Magners where the complaint was upheld, despite showing a more low key environment, but as a result of the terms of the voiceover used which suggested consumption of alcohol could help start a conversation and thereby lead to the success of a social occasion. Notwithstanding the outcome of this adjudication, when advertising alcohol, care needs to be taken with visual images and depiction of people consuming alcohol, and with the accompanying verbal message.

9. Unilever UK Ltd, 28 August 2013

Three online ads for Piri Piri Pot Noodles were the subject of review by the ASA this month.

1. A video on the Pot Noodle Facebook page opened with a young man sitting on a bus eating a Pot Noodle and struggling to cope with its spiciness. Whilst eating, he saw a young woman who was looking at him in a seductive manner. The man and woman started dancing and towards the end of the ad, the women took her top off whilst the man watched. The man then realised that the Pot Noodle pot was empty and the woman was revealed to be a shabbily dressed man. The voice-over stated “dreaming of something a bit hotter? With new Piri Piri chicken flavour its easy to peel the top off a hottie”. The ad concluded with an image of two Pot Noodle lids, which were arranged to suggest a woman’s bust, along with the text “PEEL THE TOP OFF A HOTTIE”.

2. An online game appearing on the Pot Noodle Facebook page showed a cartoon image of the young woman and shabbily dressed man from the video, standing it Pot Noodle containers. In the centre of the ad there was a picture of two Pot Noodle lids arranged in the same way as in the video with text “PEEL THE TOP OF A HOTTIE”.

3. An ad on the Pot Noodle Facebook page showed a female model in a bikini next to a picture of a Pot Noodle with the text “Phwarr is it me of is it getting hot in here? HOT OFF. Which one gets you hotter?”.

Complaint / Decision

18 complainants challenged whether the ads were offensive, sexist and degrading to women. Whilst six of these complainants also challenged whether the ads were irresponsible and harmful because they suggested it was acceptable to try and remove women’s clothing without their consent.

The ASA upheld the complaint in relation to ad three only for the following reasons.

Ad one showed, from behind, the woman starting to remove her top voluntarily. The image was brief and was immediately replaced by the reality of the situation. Although the tone was mildly sexual, the interaction was not salacious. The ASA noted that some consumers may have found ad two distasteful but it considered the images likely to be seen as puerile rather than sexually explicit and considered that the ad was unlikely to cause serious offence. With regard to ad 3 the ASA noted that the female character was wearing red knickers and revealing a red bra and posing in a provocative way. The ASA acknowledged that the intention of the ad was a play on the word “hottie” but considered the sexual pose of the woman and the blatant comparison with the food product crass and degrading. On this basis, the ASA concluded that ad 3 was likely to cause serious offence.

This adjudication echoes that of IRN BRU in the July snapshot showing that the ASA do consider a company’s historical stylistic approach to advertising.

Nevertheless, this adjudication received a fair amount of adverse publication, even though the complaint was only upheld in one respect. Ads featuring sexual images of women are always likely to attract complaints. Although two of Pot Noodle ads kept on the right side of this fine line as to what is/is not acceptable the third ad took the theme a little too far.

GAMBLING

10. Game Retail Ktd t/a GAME.co.uk, 21 August 2013

The headline text on the “Trade In” page of www.game.co.uk stated “We Wont Be Beaten on Trade-ins! We’ll beat any offer by £1!*”. Further text stated “*Terms and Conditions: GAME stores will beat any trade-in price offered to the general public by a local competitor by £1 within a one mile radius and within a 24 hour period. This excludes trade in prices offered via email or online. Proof must be provided from a local competitor. Trade-In offers are open to members of the public only and GAME reserves the right to refuse any offer to anyone believed to be representing a trade buyer. The trade-in price match cannot be used in conjunction with any other trade-in offer. The Manager’s Decision is final”.

Complaint / Decision

Three complainants challenged whether the claims were misleading and whether they could be substantiated because they reported that when they attempted to take advantage of the offer they were refused as the trade-in prices offered by competitors were considered too low for GAME to make a sufficient profit.

The ASA did not uphold the complaint, finding it not misleading. The ASA noted that from the evidence provided GAME had demonstrated that on several thousand occasions their stores had honoured the offer, even when it resulted in a very low profit, or even a loss for the store. The ASA therefore considered the refusal to honour the offer to the complainants likely to have been isolated events which were not representative of Game’s commitment to the offer more widely.

This shows the ASA adopting a proportionate position, even where there were instances which might otherwise have been considered misleading.

HEALTH AND BEAUTY

11. Medi-Direct International Ltd t/a Tower Health, 14 August 2013

An ad in the daily express was headed “PainGone Fast Drug Free Therapy” and “PainGone is a pocket sized Medical Device that offers you a fast remedy at the click of a button…ALL THE BENEFITS, NONE OF THE RISK. Over the past decade PainGone has provided benefits to thousands of people in the UK, many of whom have spent hundreds of pounds trying to find [sic] a remedy without success…Even better PainGone is a Medical Device, available VAT exempt for those who have suffered a chronic condition. The device is designed on the principles of Transcutaneous Electrical Nerve Stimulation (TENS)”. The ad was accompanied by two testimonials, one from a doctor another from a user, both stating positive results.

Text at the foot of the page provided a caveat to the claims above: “PainGone is not intended to replace current medication or diagnose, treat or cure any condition and has not yet been proven in clinically controlled, double-blind placebo tests, to relieve pain. Please consult your doctor if you are concerned about your health”.

Complaint / Decision

One complainant challenged whether the ad misleadingly implied that the device could cure or treat pain resulting from medical conditions and whether the caveat text was misleading as it contradicted both the efficacy claims in the ad and the claim that the product is a “Medical Device, clinically tested and proven safe”.

Medi-Direct International Ltd t/a Tower Health (Tower Health) responded arguing that the ad had been written in accordance with guidance from Committee of Advertising Practice (CAP) and had undergone a review with CAP. Tower Health stated that the caveat text used followed guidance from CAP.

The ASA upheld both aspects of the complaint.

The ASA reviewed the CAP advice to Tower Health. Of particular interest is that the CAP advice noted that in 2013 the ASA had adjudicated against the advertisers’ product in 2013, and had concluded that it had not seen sufficient evidence to substantiate the efficacy claims made in the ad. CAP further noted that neither CAP nor the ASA had since seen convincing scientific data to substantiate direct or implied efficacy claims for the PainGone pen. In the absence of such evidence, CAP had advised that the product should be advertised on an availability-only platform and that all efficacy claims should be removed.

The ASA concluded that the ad implied that the device could cure or treat pain, including pain resulting from medical conditions. It noted that it had not seen any evidence in support of the implied and direct efficacy claims and concluded that the ad was likely to mislead. The ASA also noted that they did not see any documentation showing that CAP had advised that the caveat text should be included in Tower Health’s advertising for the PainGone device. No supporting evidence was provided for the efficacy claims outlined above. The ASA therefore considered that the caveat text contradicted the efficacy claims in the ad and that the text was likely to confuse customers. Advertisers should be aware that the ASA noted that the use of a contradictory disclaimer was not sufficient to render the ad’s efficacy claims acceptable and concluded that the ad was misleading. Clearly in this case there seems to have been an issue with regard to the extent to which the advertiser followed advice from CAP. Nevertheless, even where CAP’s advice is followed, it is still open to the ASA to reach a different conclusion.

12. Beiersdorf UK Ltd t/a NIVEA, 28 August 2013

A national press ad for Nivea Vital moisturising cream available from Boots showed an image of two women, the older of whom was the focus of the ad. Text stated “gives mature skin the extra care it deserves” and “Vital anti-age cream – visibly reduces wrinkles, improves firmness and helps prevent age spots”. Text on the packaging stated “Reduces all major signs of mature skin ageing”.

Complaint / Decision

The complainant believed that post-production techniques had been used on the image and challenged whether the ad misleadingly exaggerated the effect that could be achieved by the product.

Beirersdorf UK Ltd, t/a NIVEA (NIVEA) acknowledged that they had retouched the image, which they generally did in their ads, but stated that they had deliberately left a lot of wrinkles around the eyes of the older woman. They said they always took care not overly to retouch the images but instead just covered skin gloss or birth marks and made adjustments to the colour and lighting.

The ASA regularly makes clear that they have not to date seen adequate scientific evidence that demonstrates that moisturisers are able to achieve the results claimed in a number of beauty ads. The ASA noted that the claims in the ad related to visible effects of the product which would be represented in the image. Nevertheless, the ASA considered that the image had undergone extensive retouching resulting in substantial changes to the model’s appearance. Lines and wrinkles on her face, particularly around the eye and mouth area, had been dramatically reduced, and several age spots had been removed. In the absence of evidence demonstrating that the effects shown in the ad were in line with that which could be achieved through use of the product, the ASA concluded that the ad misleadingly exaggerated the performance of the product in relation to the claims: “anti-age”, “visibly reduces wrinkles”, “helps prevent age spots” and “reduces all major signs of mature skin aging”.

The ASA considered that the post-production enhancement was acceptable provided that the outcome did not misleadingly exaggerate the effect that the product was capable of achieving. Advertisers of beauty products should be careful to ensure that any claims made do not mislead the consumer about the effect that the product is capable of achieving. Although there have been a number of recent complaints with regard to beauty product ads which have not been upheld (see for example, L’Oreal ad). This adjudication is a reminder that the ASA does have a strict approach to any exaggeration of a product’s effect and excessive retouching.

MEDIA

13. News Group Newspapers Ltd t/a The Sun, 7 August 2013

Four TV advertisements promoted different editions of The Sun and The Sun on Sunday newspapers showing a range of images of female celebrities and models, in bikinis or lingerie, referring to “Its Sexy Week and we have 50 spicy tips for hot sex” and “we begin our countdown of Britain’s ten sexiest babes (as voted for by you)” and their “SEXCLUSIVE” “Lovers Guide to Hotter Sex”. And in Fabulous Magazine, Chloe Madeley reveals how she got a six pack in just ‘phwoar’ weeks”.

Complaint / Decision

Forty eight viewers challenged whether the ads were inappropriately scheduled because the sexual themes and references to sex were unsuitable to be shown around family programmes likely to be seen by children. Four viewers challenged whether two of the ads were offensive because they were sexist and objectified women.

The ASA did not uphold the complaints for the following reasons. They noted that the images were not overtly sexual nor were sexualised poses used. The impact of the images was reduced due to the brief duration of the images and fast cutting style of the ad. The ASA decided that although the content of the voice-over was mildly sexual in content, Clearcast had applied a restriction which prevented the ads from being broadcast in or around programmes directed at children. The ASA noted that the ads were broadcast at around 7.45 and 8pm which further reduced the likelihood of them being seen by unsupervised children. The ASA considered the restriction sufficient. The ASA acknowledged that some viewers might consider a feature entitled “Britain’s ten sexiest babes” sexist and to objectify women. However, the ASA did not consider it inappropriate for the ads to promote its “Sexiest babes” feature nor did it consider that the portrayal was likely to cause offence. The ASA considered that viewers were likely to be aware of the kind of articles and images which often featured in the Sun and would view the content of the ad as representative of that publication.

This adjudication demonstrates a consistent approach adopted by the ASA to such ads. As in the Junction One Limited adjudication on 24 July 2013 the ASA will accept ads featuring women in underwear or bikinis but care needs to be taken by advertisers with their portrayal and any sexual innuendo used.

LEISURE

14. Barnes & Noble Inc t/a Nook, 21 August 2013

A national press ad for the Nook e-reader stated “only £29 RRP £79 For a limited period. Fact not fiction…Get your NOOK today at Argos, Asda, Blackwell’s, Currys and PC World, Foyles, John Lewis, Sainsbury’s and Very”.

Complaint / Decision

The complainant challenged whether there was sufficient availability of the product at the advertised price.

Barnes & Noble Inc t/a Nook (B&N) responded arguing that prior to running the promotion they made a reasonable estimate of demand based on recent and reliable data of UK sales levels for e-readers. Their estimating process involved their US and UK sales and marketing executives. B&N provided a spreadsheet showing forecasted product sales which justified their expectation of an increase between 10 and 20 times. B&N used these estimates to plan stock levels prior to running the promotion, and ensured that they and their UK partners had stock of 20 times the average sales for the promotion.

Sales were much greater than they expected at over 120 times the normal sales rate so stock quickly depleted. B&N provided a graph demonstrating this difference between predicted and actual sales during the promotion. Once realising the depletion, B&N put in place an allocation programme for their retail partners to keep a limited supply of the products in stock in the UK and to ensure that the limited stock was distributed evenly throughout the market. Stock levels were decreased as a result of the promotion and the product was out of stock at their webstore. However, at certain UK retail partners the product was not fully out of stock until after the complaint was submitted. As a result of the availability issues B&N took remedial action placing an “out of stock” message on their UK website and instructing an advertising agency on 3 May to stop running the ad.

The CAP Code states that promoters must be able to demonstrate that they had made a reasonable estimate of the likely response and that they were capable of meeting it. The fact that the product went out of stock at a number of retail stores and that remedial action had to be taken, meant that B&N’s demand estimates were significantly lower than the actual response to the offer. The ASA concluded that B&N should have based their estimate on the response rate to a previous similar offer of the same or a similar product, rather than on their recent UK sales data. The ASA therefore upheld the complaint, concluding that B&N had not provided sufficient evidence that their estimate was reasonable.

Availability of items featured in promotions is regularly an issue. Promoters must take care to ensure that they make a reasonable estimate of the likely response to an offer and be able to provide sufficient evidence that such estimate is reasonable. The ASA will generally expect to see an estimate based on a previous similar promotion rather than on other data.

15. Electronic Arts Ltd, 14 August 2013

A website for a new online video game, SimCity, provided an outline of the game’s features.

Complaint / Decision

Three complainants challenged whether the ad was misleading because a number of the advertised features were either not included in the game or had been disabled due to problems at launch.

Electronic Arts Ltd (EA) responded clarifying that certain game features had been delayed but that several were active at the time of their response. EA noted that the delay was a total of 35 days following the game’s launch for one feature, and 41 days for another feature. They acknowledged that other features were still not live at the time of their response but they assured the ASA that they would be launching such features soon.

The ASA upheld the complaints in part. The ASA acknowledged that for games of this nature, especially large online multiplayer games, it was not uncommon for there to be problems or delays with specific features at launch, nor was it uncommon for some services to require post-launch updates before they worked correctly. Nevertheless, the ASA considered that EA should have taken timely action to alert consumers to delays to any of the game’s features. The ASA suggested noting this information in marketing material that referenced the affected features. The ASA concluded that EA should have removed the reference to any feature that was not to be included in the final product as soon as it was known that the feature was not to be included. The ASA concluded that EA had breached the code in relation to the features which were delayed and those which were not included in the final product.

This adjudication shows the ASA taking a relatively pragmatic approach by acknowledging that there may be problems or delays with game products. However, advertisers should take steps to ensure that marketing material is updated as soon as it is known that any advertised features are no longer going to appear in the final game or would be significantly delayed.

UTILITIES

16. Good Energy Ltd, 7 August 2013

A website providing information about an energy company included a webpage headed “supporting your business”, which stated “as the UK’s leading 100% renewable electricity supplier, we are the company of choice for people who care that their electricity only comes from clean, natural sources”.

Complaint / Decision

Ecotricity Group Ltd challenged whether the claim “the UK’s leading 100% renewable electricity supplier” was misleading and could be substantiated.

The ASA noted that, although the GE claim did not specifically reference tariffs, consumers would understand the claim to be a comparative claim that GE was the leading supplier of 100% renewable electricity tariffs, regardless of whether other suppliers of 100% renewable electricity tariffs also offered ‘non-green’ electricity tariffs. The ASA concluded that in order to substantiate the claim, GE would need to provide comparative evidence which demonstrated that GE had more customers on its 100% renewable electricity tariff than its competitors. In the absence of such evidence the ASA concluded that the claim was misleading.

This is an example of “a number one” claim which is liable to attract complaints from competitors and which will always be reviewed strictly by the ASA.

RETAIL

17. Stanley Black & Decker UK LTD, 7 August 2013

There were two advertisements published (one website and one television) for the Black & Decker Steam Mop. The website ad stated, “The Steam Mop uses ordinary tap water to wipe out 99.9% of germs and bacteria. No cleaning products are needed, just fill up the tank, plug it in and go. Dirt, scuffs and grime are steamed away, leaving no harsh fumes or detergent residue behind. Floor surfaces are left feeling touch-dry, deep cleansed and free from impurities.”

There were three headings that followed stating similar claims, “Super heated steam kills 99.9% of harmful germs and loosens dirt and grease in seconds” and “Steam kills bacteria and germs virtually on contact – making your home hygienically clean and safe for the whole family to enjoy.”

The television advertisement showed children playing on the floor whilst an accompanying voice over stated, “Discover hidden genius on the floor, not hidden bacteria.” The on-screen text sated, “Kills 99.9% of household bacteria provided mop is used as instructed.” The voice over finished by saying, “Natural steam cleaning kills 99.9% of bacteria without any chemicals. The Black & Decker Steam Mop. Your floor is clean. Really clean.”

Complaint/Decision

Dyson Ltd (Dyson) challenged the claims made in both ads, that the Steam Mop killed 99.9% of bacteria and germs and sanitises floors. They argued that this claim was misleading and could not be substantiated.

Stanley Black & Decker UK Ltd (B&D) submitted evidence to the ASA in support of the claim including laboratory testing of the product and comparative testing of competitor devices. The claim that the product kills 99.9% of bacteria and germs and sanitises floors was fully substantiated by a Chartered Biologist and Microbiologist.

As B&D’s evidence was in-depth and the report measured the antimicrobial efficiency of the mop, the ASA concluded that the claims the product was capable of killing 99.9% of bacteria and germs, and sanitising floors had been substantiated. The complaint was not upheld.