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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