ASA Adjudications Snapshot – February 2009

This article provides a selection of the most interesting ASA adjudications from February and a summary of the key issues considered in the adjudications.

This month, the ASA ruled on complaints concerning an advert which implied cookies were wholesome, investigated claims made about fibre optic broadband and ruled that adverts for “LONGER LASTING SEX” were offensive. It also gave its opinion on gambling and competition adverts that it considered targeted children, equated gambling with sexual success and gave an unrealistic impression of participants’ chances of success.

FOOD AND DRINK

1. Kellogg Marketing and Sales Company (UK) Ltd, 4 February 2009 (nutritional claims relating to cookies)

2. Unilever UK Ltd, 25 February 2009 (‘preference’ claim unsubstantiated)

HEALTH AND BEAUTY

3. AMI Clinic Ltd, 18 February 2009 (prescription-only advert caused widespread offence)

4. Reckitt Benckiser (UK) Ltd, 25 February 2009 (allegation of sexual violence)

GAMING AND PROMOTIONS

5. Kimberly-Clark Ltd, 4 February 2009 (competition gave unrealistic hope of success)

6. Spreadex Ltd t/a ShortsandLongs.com, 11 February 2009 (gambling linked with sexual success)

7. Midasplayer.com Ltd t/a King.com, 18 February 2009 (gambling ad, use of cartoons and attraction to children)

ALCOHOL

8. Wm Magners Ltd, 25 February 2009 (alcohol linked to increased confidence)

TECHNOLOGY AND THE INTERNET

9. Nokia UK Ltd, 4 February 2009 (portrayal of transgender and transsexual people)

10. Flowers-for-all-occasions.com, 18 February 2009 (wording of sponsored links)

FOOD AND DRINK

1. Kellogg Marketing and Sales Company (UK) Ltd, 4 February 2009

Kellogg’s advertised its Oat and Chocolate Chip variety of Soft Oaties cookies on posters and in the press. The adverts were headlined: “Wholesome cookie goodness” and smaller text read: “Made with oats & wheat, source of fibre, 6 B vitamins & iron. Enjoy as part of a healthy balanced diet & lifestyle.” The press ad also showed a packet of the cookies, which featured a flash stating: “Calories 181 9%”.

Complaint/decision

Two members of the public and the consumer group Which? complained that the adverts misleadingly implied the cookies were beneficial to health, despite being high in sugar, fat and saturated fat, and that they misleadingly implied the cookies were healthier than they were.

The ASA upheld both complaints. It noted that the ads made a nutrition claim in stating that the cookies contained fibre, B vitamins and iron, and found that there were sufficient amounts of these in the cookies to comply with the regulations on nutrition claims. However, it also found that the biscuits were high in sugar, fat and saturated fat. By failing to refer to these ingredients, the adverts implied the cookies were either wholly beneficial to health or healthier than they actually were. This, along with the headline claim, was misleading.

In looking at the overall message conveyed, the ASA looked at the nutritional information excluded from, as well as included in, the adverts. The decision highlights the risks of implied claims and that the overall message conveyed by the ad will be heavily influence by the headline claim.

2. Unilever UK Ltd, 25 February 2009

Celebrity chef Gary Rhodes featured in a comparative TV advert for Flora Buttery spread. The voiceover said: “Gary Rhodes is on a mission to find out which tastes better, Flora Buttery or the leading spreadable from a butter brand.” Text identified the alternative butter as Lurpak Lighter Spreadable. Rhodes offered some buttered crumpets to some shoppers and asked them which was their favourite. One woman made a choice and Rhodes revealed it was Flora. On-screen text read: “Out of 200 people tested 48% preferred Flora Buttery Taste, 45% Lurpak Lighter spreadable, 7% had no preference.” The voiceover said: “To our delight, his findings confirmed ours. More people prefer the taste of Flora Buttery…”

Complaint/decision

Arla Foods and 29 viewers complained that the claim that more people prefer the Flora product was misleading because the significance of the survey results was marginal and the sample size was too small to support a preference claim.

The ASA upheld the complaint. It agreed with the complainants that a sample of 200 people was too small to support a preference claim. It also pointed out that the number of people who preferred Lurpak or had no preference was larger than the number of people who preferred Flora. The results therefore did not prove that more people preferred Flora Buttery.

This is a reminder that claims in comparative ads are likely to be contested where the competitor is named and that robust substantiation should be held by the advertiser.

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HEALTH AND BEAUTY

3. AMI Clinic Ltd, 18 February 2009

A poster asked: “WANT LONGER LASTING SEX?” in large, brightly coloured letters, with “SEX” appearing in even larger letters. Below this question, smaller type read: “NASAL DELIVERY TECHNOLOGY CALL THE DOCTORS AT ADVANCED MEDICAL INSTITUTE.”

Complaint/decision

521 complainants complained that the poster was offensive and unsuitable for public display, particularly near schools. The ASA also challenged whether the poster advertised an unlicensed medicine.

The ASA asked the advertiser to withdraw these posters in January prior to the adjudication on the basis that they advertised an unlicensed medicine.To view the full article please click here.

In the event, unsurprisingly both complaints were upheld. The ASA noted that although no swear words were used, many people felt the language was offensive, the bright, large text was crass, and the unavoidable size and prominence of the main question and the word “SEX” caused many parents embarrassment when their children asked them about it. The ASA considered that the style, tone and location of the ad was too “stark and prominent” and found it had caused serious, widespread offence. The commented that a number of complainants pointed out that the sheer size and prominence of the message made it impossible to avoid. The ASA found that the combination of factors meant that it was unsuitable for general public display.

On the second issue, the ASA found that AMI’s medicine was prescription-only and it did not hold a marketing authorisation for any medicines it prescribed as part of its treatment programmes. AMI argued that the poster did not advertise a medicine, but the way the medicine would be administered (through nasal delivery technology), and that their treatment programmes included counselling as well as medicine. However, the ASA considered that the ad overall indirectly advertised the unlicensed medicine.

This decision is a reminder that any prescription-only medicines must have a marketing authorisation before advertising them. It also demonstrates that an advert need not include swear words or graphic images to be deemed offensive, and that the ASA will consider the overall impression given, including the style, size of text and location in which the ad is placed.

4. Reckitt Benckiser (UK) Ltd, 25 February 2009

A TV ad for Clearasil featured two teenage boys. A girl walked passed and said “hi” to one of them and as he replied, he hid his face behind his hair. He then explained to his friend that he was hiding a spot. His friend replied: “It’s three days ‘til the party! I know what you want.” The boy was shown washing with Clearasil. In the next scene, subtitled “3 days later”, the boy had no spots. He and his friend were shown near a group of girls, including the girl from three days before. The boy got onto a skateboard and said “here goes” to his friend before launching himself at the group of girls and crashing into the girl he liked. She looked shocked as he fell on top of her, knocking her to the ground. He then kissed her.

Complaint/decision

Four viewers complained that the advert was offensive and inappropriate and condoned sexual violence.

The ASA did not uphold these complaints. It found that the collision appeared to be premeditated, but also thought the prior exchange indicted there was mutual attraction between the boy and girl. Although surprised, the girl did not seem frightened or repulsed, and she appeared to return the boy’s kiss. The overall impression was not of violence or aggression. Although unconventional in its approach, the ASA found the ad was unlikely to cause serious or widespread offence.

The ASA demonstrated a measured approach to complaints about violence. The case serves as a reminder to retailers of uncontroversial products that their adverts can still be subject to serious complaints, particularly if they take a novel or unexpected approach.

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GAMING AND PROMOTIONS

5. Kimberly-Clark Ltd, 4 February 2009

Andrex ran a competition on its website featuring an animated puppy sitting behind five toilet rolls. Each roll had a gold feather on it and text read: “For the chance to WIN £500,000 worth of great family prizes, help your puppy collect 5 gold feathers by answering the questions correctly.” A second part of the competition featured a grid with nine question marks and text stating: “Click on 3 question marks in the grid – if you reveal 3 images that match, you win that prize!”

Complaint/decision

The complainant found that only 11 out of 916 potential prizes had been won, and that some gamecards in the second part had no matching images. They challenged whether the terms and conditions implied that the gamecard shown in the second task would always contain three matching images.

The complaint was upheld. The ASA reviewed the terms and conditions which had been published on the website and which included the statement: “Players must locate 3 matching prize images randomly hidden behind 9 squares by clicking on three squares only,” regarding the second game. The ASA considered that this could be interpreted to mean that the gamecards would contain three matching images, as could the onscreen instructions to players. In fact, the majority of gamecards did not contain three matching images. The ASA found that the terms and conditions and instructions could therefore give players an unrealistic expectation of success and were misleading.

6. Spreadex Ltd t/a ShortsandLongs.com, 11 February 2009 (gambling linked with sexual success)

A press ad showed a confident-looking man sitting between two glamorous women who were touching his arms. The ad was headlined: “We believe all traders deserve privileges… which is why we offer: Free guaranteed stops.” It also said the site offered other privileges which were “just a small part of our commitment to make spread betting more rewarding.”

Complaint/decision

One complainant found the advert was irresponsible and glamorised gambling because it referred to gamblers as “traders” and implied that gambling made men more attractive to women.

The ASA did not agree that the ad was irresponsible to refer to gamblers as “traders”. It found the ad was for a financial spread betting service which was governed by the Financial Services and Market Act 2000. The ad specifically mentioned spread betting, so the ASA considered that readers would understand the term “traders” in the context of an ad for a gambling product related to financial services.

Gambling is always going to be an issue which is likely to attract complaints by the public and scrutiny by the ASA. However, in this case it was clear that the ad did irresponsibly link gambling with sexual success and attractiveness. From the way the man was shown sitting between two women, readers were likely to infer that one of the “rewards” of spread betting was enhanced attractiveness.

7. Midasplayer.com Ltd t/a King.com, 18 February 2009

This complaint concerned a television advert for King.com. The advert showed a woman playing online games. A voiceover stated: “There are loads of great puzzle games at King.com, like Bejeweled. It’s so easy to learn, just switch two gems to create a row of three – but to win, you’ve got to be really fast.” A cartoon woman’s head was shown against a pink background with. The player said: “I’ve done it again. I’ve won. Yes!” She then threw her hat in the air and opened her arms and a 20p flipped into the air and fell into her hand. She said with glee: “I’ve won 20p!”

Extracts of other games were shown and text stated: “Up to £30,000 jackpots.” The player was then shown in an evening gown and tiara having her photo taken. The voiceover said: “Play great puzzle games for pennies or play for free.”

Complaint/decision

The main complaints were that (i) the advert was for a gambling product and was likely to appeal particularly to children and (ii) the ad was misleading and exploited the susceptibilities, aspirations and credulity of children.

The advertiser said it believed the ad was not for ‘gambling’ or ‘gaming’ as defined under the Gambling Act 2005, because the games on King.com were restricted to games of skill, so the restrictions on gambling ads should not apply.

However, the ASA found that the King.com homepage linked to a gambling website, Royal Games, which was presented as if it was a subsection of King.com. Players registered with King.com were offered upgrades to Royal Games stating: “BECOME ROYALTY @ KING.COM Upgrade to Royal Games…” There was a barrier page between the two sites which advised players they were entering a licensed gaming site, the ASA considered the two companies were “completely interwoven” on the King.com website. The link from King.com to Royal Games had been removed in the period the advert was broadcast, but reappeared two weeks later. The ASA found this was not sufficient to avoid scheduling restrictions for a gambling product because the link was reintroduced later, and any children attracted to King.com would then be exposed to a gambling site.

The viewer’s complaint was upheld. The ASA found that the use of simple language, video game-like examples, cartoons and small, pocket-money sized sums were likely to appeal particularly to children and young people. This breached the ASA Code on gambling products. The ad had also not been subjected to the mandatory scheduling restriction applied to adverts for gambling products to prevent scheduling in or next to children’s programmes or those likely to appeal to under-18s.

The ASA’s first complaint was also upheld for the same reasons, adding: “Because the overall impression young viewers were likely to take from the ad was that the King.com product was suitable for them, not only to play games for free but also to win money, we considered that it misleadingly exploited their susceptibilities, aspirations and credulity and raised unrealistic expectations with regards to winnings.”

Advertisers of online games should note from this decision that temporarily removing links to gambling products is not sufficient for an advertiser to avoid the restrictions placed on gaming and gambling products, particularly if the overall impression of the site is one connected with such products, or if an advert expressly refers to playing for prizes.

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ALCOHOL

8. Wm Magners Ltd, 25 February 2009

A television advert for Magners cider depicted a man walking into a pub. As a pint of the cider was poured, a voiceover claimed the cider was: “the perfect ice breaker. Making sure the conversation flows, in the time it takes to create a cool, crisp pint. No ice, just pure, premium taste.” The man was shown lifting the pint and turning to a group of friends.

Complaint/decision

One viewer complained that this advert breached the Code because it suggested that an alcoholic drink could boost confidence and lead to the success of a social occasion.

The ASA upheld the complaint. The advertiser said the advert’s claims were playing on words. For example, “It’s the perfect ice breaker” was intended to highlight the fact that draught Magners had no ice, unlike the usual bottle. The reference to conversation ‘flowing’ was intended to chime with images of apples flowing. However, the ASA considered that because the claims were made as the protagonist was shown moving towards a group of friends, viewers were likely to imply that drinking the cider could help to start a conversation. Although the ad did not show excessive drinking, the ASA still considered that the ad suggested alcohol would boost confidence and lead to social success.

Alcohol is another area which regularly causes difficulties for advertisers. This decision highlights the difficulties in promoting alcohol in a social setting, despite this being the most likely setting in which it will be consumed in reality. On the face of it, this ad might have seemed fairly innocuous.

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TECHNOLOGY AND THE INTERNET

9. Nokia UK Ltd, 4 February 2009

A TV advert for a mobile phone which came with unlimited music downloads began with a blank screen, and as excerpts of different songs were played, an image appeared strip-by-strip. The first strip showed a pair of high heels and all the strips together revealed some dancing legs. Each strip included the name of an artist and their song. Read together, this text included the phrases: “MACHO MAN… IDENTITY CRISIS… WHAT CAN I DO… GO SEE THE DOCTOR… SIX WEEKS… REMOVE… BANDAGES… DUDE LOOKS LIKE A LADY.”

Complaint/decision

Three people complained that the advert negatively portrayed transgender and transsexual communities and was offensive.

The ASA did not uphold the complaints. It noted that the advertiser had consulted the Beaumont Society, the largest and longest established transgender support group in the UK, before making the advert and this society’s representative had not only attended the ad shoot but said the advert was not offensive to transgender or transsexual people and was happy for it to be broadcast. The ASA considered that the ad did not portray transgender or transexual issues negatively, nor did it stigmatise, humiliate or undermine these communities by using harmful stereotypes or was likely to cause serious or widespread offence.

The ASA’s approval of the involvement of the Beaumont society indicates that where advertisers choose to portray minority groups, consulting representatives of these groups at an early stage can be a powerful evidence to oppose complaints made about offence.

10. Flowers-for-all-occasions.com, 18 February 2009

An internet search engine sponsored link for the website of a flower delivery service had the headline: “Flowers Delivery Sunday”.

Complaint/decision

One person complained that the ad was misleading because it said that the advertiser delivered on Sundays, but that was incorrect.

The ASA upheld the complaint. The advertiser acknowledged it did not deliver on Sundays and offered to ensure “Sunday flower deliver” were negative keywords (the words advertisers bid to use in sponsored links) so they would not appear in sponsored search results in future.

Sponsored search engine adverts can be controversial as is evidenced by the numerous referrals to the ECJ from several EU courts regarding the allegedly unlawful use of rivals’ trade marks as keywords. However, this decision is a reminder that the ASA also has jurisdiction over such adverts in paid for space and a reminder that even if automatically generated, advertisers must take care to ensure their adverts are not worded so as to mislead.

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