ASA Adjudications Snapshot – March 2009

United Kingdom

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

For example, this month, the ASA ruled on complaints concerning medicinal claims, “natural” claims for food, unsuitable or offensive ads for films and lingerie, encouraging the consumption of alcohol and the fair conduct of promotions.

FOOD AND DRINK

1. Birds Eye Ltd, 11 March 2009 (fair comparisons, low fat claims)
2. Muller Dairy (UK) Ltd, 25 March 2009 (“natural” claims)

HEALTH AND BEAUTY

3. Colgate-Palmolive (UK) Ltd, 11 March 2009 (non-misleading visual demonstration, medicinal claims and expert evidence)
4. CibaVision (UK) Ltd, 18 March 2009 (flawed study as basis for ad)

GAMING AND PROMOTIONS

5. Tombola (Alderney) Ltd, 25 March 2009 (appeal to children and young persons)

ALCOHOL

6. InBev UK Ltd, 18 March 2009 (sexual success and daring behaviour)
7. The 3D Entertainment Group Ltd t/a Chicago Rock Café, 25 March 2009 (encouragement of binge drinking)
8. Wm Magners Ltd, 25 March 2009 (encouraging excessive drinking and low energy claims)

OTHER

9. Agent Provocateur Ltd, 4 March 2009 (stylised risqué ads in suitable publication not offensive)
10. Qantas Airways Ltd, 4 March 2009 (meaning of “2-for-1”)
11. Sit-Up Ltd, 4 March 2009 (availability of an offer)
12. Center Parcs (UK) Ltd, 25 March 2009 (availability of an offer)
13. Paramount Pictures UK, 25 March 2009 (offensive and unsuitable ad)14. Guardian News and Media Ltd, 25 March 2009 (use of data linked to market sector)

FOOD AND DRINK

1.  Birds Eye Ltd, 11 March 2009

A radio ad claimed that “five Birds Eye Chicken Dippers contain less saturated fat than one sausage”.

Complaint/decision

1. A complainant claimed that the ad was misleading because it did not state the type of sausage with which the Chicken Dippers were being compared.

The ASA rejected the complaint as it was satisfied by the evidence provided by Birds Eye, which showed that the sausage was typical of that generally eaten in the UK.  The type of sausage used in the comparison had less saturated fat per 100g than 19 out of a selection of 20 sausages, and the only sausage containing less saturated fat per 100g was a specifically low-fat variety.  The ASA therefore concluded that there was no need to state the type of sausage that had been compared in the ad.

2. The ASA challenged whether the comparison in the ad was fair.

The ASA considered the Nutrition and Health Claims Regulation, which states that a comparison can only be made between foods of the same category.  Chicken Dippers and sausages were deemed interchangeable as “teatime products”.  The Regulations require that the comparison in such a claim involves a difference of at least 30%, and the sausage contained over 30% more saturated fat than Chicken Dippers.

This is one of many adjudications that demonstrate the ASA proactively enforcing the Regulation.  The proposed CAP and BCAP amended Codes contain a large section dedicated to health and nutrition claims, indicating that this will be a key area of focus.

2.  Muller Dairy (UK) Ltd, 25 March 2009

Three ads for Muller’s “Little Stars” range of children’s jellies, fromage frais, yoghurt and yoghurt drink products were challenged. 

The TV ad stated “New Muller Little Stars are made from as little as five ingredients, all of which are pure and natural, so it’s almost like getting a helping hand from Mother Nature.”  The pack shot of the fromage frais showed the product nestled in grass and daisies, above the caption “100% natural ingredients”. 

The two printed ads showed similar imagery and included text such as “A helping hand from Mother Nature” and “Made from 100% natural ingredients”. 

Complaint/decision

Yoplait Dairy Crest Ltd (Yoplait) made three challenges: (i) whether the claim “100% natural ingredients” contravened the Food Standards Agency’s “Criteria for the Use of the Terms fresh, pure, natural etc. in Food Labelling” (2002); (ii) whether the claims “a helping hand from Mother Nature” and “it’s almost like getting a help hand from Mother Nature” misleadingly implied that all the ingredients were completely natural; and (iii) whether the claim “from as little as five ingredients” was misleading as they believed that the products were actually made from seven or more ingredients. 

The ASA upheld the first two challenges.  Although there is no legal definition of the term “natural” in relation to food and food ingredients, the industry best practice guidance defines it as “produced by nature, not the work of man or interfered with by man”.  It relates to both the origins of an ingredient and how it is processed.  The claim “100% natural ingredients” implied that each ingredient was 100% natural, but consumers were unlikely to consider some ingredients “natural” (such as gelatine, which is industrially produced).  Due to its absolute nature, the claim was deemed to be misleading.

Further, the imagery used in the ads implied that the ingredients were less processed and more natural than they actually were.

The ASA rejected the third challenge.  The blackcurrant jelly product in the Little Stars range had five ingredients only.  The ASA considered that viewers would understand the TV ad to be promoting the Little Stars range as a whole, so although one item in the range contained ten ingredients, the average number of ingredients in each product was seven and therefore the claim “as little as five” was unlikely to mislead. 

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HEALTH AND BEAUTY

3.  Colgate Palmolive, 11 March 2009


A TV ad claimed that Colgate Sensitive Enamel Protect “…protects your sensitive teeth and strengthens them against acid erosion by remineralising tooth enamel…”  The ad contained a visual demonstration of the remineralisation process and featured a woman eating an iced lolly and a man drinking orange juice.

Complaint/decision

The complainants challenged whether the advertiser could substantiate the remineralisation claim.  The ASA also challenged whether the iced lolly and orange juice in the ad implied that the product was a treatment for sensitive teeth and therefore made an unauthorised medicinal claim. 
Taking expert advice, the ASA found they could substantiate the claim as the product could remineralise tooth enamel as well as strengthen teeth against erosion and thereby reduce sensitivity.  The ASA also believed that the visual demonstration did not imply that lost enamel could be restored and therefore was not misleading.

The ASA challenge was not upheld due to the fact that the ad was a general comment on types of products that people with sensitive teeth avoid, and not a medicinal claim that the product was a treatment for sensitive teeth.

The challenges failed because Colgate Palmolive was able to provide robust evidence to substantiate its product’s claims.  However, the dividing line in this ad between medicinal and non-medicinal claims was not particularly clear, as it appeared that the ad was suggesting and able to substantiate the claim that the product could protect sensitive teeth.

4.  Ciba Vision (UK) Ltd, 18 March 2009

A trade magazine ad compared Ciba Vision’s DAILIES contact lenses with Johnson & Johnson’s ACUVUE MOIST lenses.  The ad stated that Ciba’s lenses were preferred “on key comfort attributes” according to a new clinical study.  The ad contained a graph illustrating the same.

Complaint/decision

Johnson & Johnson challenged whether the comparison in the ad was misleading due to significant flaws in the clinical study on which they relied.

Ciba stated that it had not been able to mask the ACUVUE packaging during the trial, whereas the DAILIES product was presented in non-distinctive packaging featuring only the Ciba name.  Ciba acknowledged that there was a potential for bias (although they considered that the bias would be against them), since participants in the study could identify the ACUVUE product.

The ASA upheld Johnson & Johnson’s challenge.  Ciba had failed to mask the products properly, and not accounted for the possibility of such bias influencing participants’ responses or for the decision behind its sample weighting (with 65% Ciba Vision customers and 27% ACUVUE customers).  The ASA therefore declared the study insufficiently robust and the ad was “likely to mislead”.

This adjudication reinforces that clinical studies must be blind-tested, unless there is solid justification for not doing so, particularly for comparative claims in competitive industries such as contact lenses.

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GAMING AND PROMOTIONS

5.  Tombola (Alderney) Ltd, 25 March 2009


Two TV ads for the online bingo website Tombola.co.uk used the theme “Tombola World”.  Each ad depicted a fairground scene and brightly coloured bingo balls bouncing around the fairground.  One ad featured a voiceover that stated, “With over 35 chat rooms to choose from, you can join the ride, make new friends and play your favourite bingo games”.  The voiceover continued “Tombola.co.uk, where the fun goes on and on”.

Complaint/decision

One viewer and the ASA challenged whether the ads were likely to be of particular appeal to children or young persons. 

The ASA upheld the challenge.  The fairground theme, the animated bingo balls (which were deemed to resemble brightly coloured sweets), the reference to chat rooms and the catchy, energetic and repetitive nature of the theme tune were considered to be of particular appeal to children and young persons.  The reference in the second ad to what the ASA called “small, obtainable amounts of money” (such as “2p a ticket”) was also problematic given the likelihood of the other elements of the ad to appeal to children or young persons.

This is a reminder that the imagery used will be very important in assessing appeal to children, even if the text alone would be acceptable.

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ALCOHOL

6.  InBev UK, 18 March 2009


A TV ad for Stella Artois 4% showed a man applying sun cream to a woman’s back next to a swimming pool.  The woman’s husband arrived and became enraged with the first man, who then wobbled backwards and toppled over the balcony.  He fell through clothes-lines and landed, fully clothed, outside a bar where he ordered a Stella Artois 4%.  The woman’s husband appeared aggressively at the bar and then looked surprised.  The first man raised his glass to the husband and it was revealed that he was wearing red stilettos.  The voice-over said: “Triple filtered for a smooth outcome.”

Complaint/decision

Alcohol Concern challenged whether the ad linked alcohol to sexual success or seduction and linked alcohol to daring, tough or aggressive behaviour.

The ASA rejected both challenges.  They considered that the contact between the first man and the woman shared no contact beyond the application of the sun cream, which was only mildly flirtatious.

The “smooth outcome” was related less to the man’s contact with the woman and more to his luck in evading her husband, surviving his fall and becoming clothed in the process.

As regards daring behaviour, the ASA found that the man’s fall was clearly an accident and not obviously related to excessive consumption of alcohol.  There was no daring involved.  Further, the ASA considered that the encounter between the two men was not aggressive and, in any case, the man’s red stilettos deflated any possible sense of machismo.

We consider that this was a sensible decision, which viewed the ad in the way it was intended: to be humorous.  InBev successfully separated the encounter with the woman from the consumption of the alcohol.

7.  The 3D Entertainment Group Ltd t/a Chicago Rock Café, 25 March 2009

A radio ad featured a man offering to buy a woman a drink.  She accepted and he offered to buy one for her friend.  The woman accepted again.  The main continued, “And her mate?” and the woman again replied, “Why not?”  A voiceover then advertised Chicago Rock Café’s “Green Cross Sale” and stated, “Every Friday every drink is just 99p up until 11pm”.

Complaint/decision

A listener challenged whether the ad was irresponsible because it encouraged binge drinking.

In perhaps a surprising decision, the ASA rejected the challenge on the basis that the ad did not refer specifically to alcoholic drinks.  There was no suggestion that the drinks being bought would be reciprocated in a round and only one drink was bought for each woman.  The message of the ad was that the price of drinks enabled the man to be generous.  The ASA considered that it did not encourage excessive drinking or the buying of alcoholic rounds.

In this case, although the effect of the low pricing of drinks might be to increase alcohol consumption, the advertiser sidestepped this being the message of the ad by suppressing any explicit mention of alcohol, alcoholic brands or “rounds”.

8.  Wm Magners Ltd, 25 March 2009

The poster on London buses promoted Magners Lite.  The text stated “Only 92 calories per bottle.  Still 4.5%”. 

Complaint/decision

1.  The complainant challenged whether the claim “Only 92 calories” was irresponsible because it could encourage excessive drinking.

The ASA rejected the challenge.  The text of the ad reminded viewers that the alcohol content was “still 4.5%” although the calorific content had been reduced.  The ASA believed that the “restrained style and treatment of the ad” counteracted the challenge that it might encourage excessive drinking.  The ASA particularly referred to the ad’s plain text and single image of a bottle of Magners cider.

2.  The ASA challenged whether the claim “Only 92 calories” implied the drink was low in energy. 

The ASA upheld this challenge.  Magners had offered to remove the word “only” from the ad in its response to the complaint, and the ASA agreed that this word implied the drink was low in energy.  The ASA referred to Regulation (EC) No. 1924/2006 on Nutrition and Health, which stipulates that only a liquid containing less than 20kcals/100ml can make a low energy claim.  As Magners contains 26.5kcals/100ml, but the ad implied it was low in energy, the ad was deemed misleading. 

This adjudication demonstrates that the ASA is enforcing the new Regulation strictly and is alert to its content.  Advertisers must therefore ensure that they are, too.  It also emphasises that the ASA takes into account the whole context of ads, and overall style may be given as much weight as text.

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OTHER

9.  Agent Provocateur, 4 March 2009

Two ads in the Sunday Telegraph magazine supplement Stella promoted an evening shopping event at Agent Provocateur.  Each ad showed a tableau of women wearing lingerie (and topless in one case) and in risqué poses, involving nooses, a blindfold, a gag and a snake. 

Complaint/decision

Two complainants challenged whether the ads were offensive and degrading to women due to their explicit nature and the depiction of bondage.  One complainant challenged whether the ads were irresponsible as they had appeared in a national newspaper supplement, where children might see them.

The ASA rejected both complaints.  Firstly, the context of the ads was sufficiently stylised (being based on works of art) to be evidently fictional and therefore, although distasteful to some, were not deemed offensive or demeaning to women.

Secondly, Stella magazine is clearly targeted at adults and children were unlikely to see the ads, so they were not deemed unsuitable.

Advertisers are reminded in this adjudication that even stylised ads may fall foul of the rules if they are not suitably placed.

10.  Qantas Airways, 4 March 2009

A press ad for Qantas flights proclaimed as its headline “QANTAS 2-FOR-1 GREAT NEWS SALE”.  Lower down, the ad stated that “each passenger pays all applicable surcharges and taxes”.

Complaint/decision

The complainants challenged the ad for being misleading because the first passenger paid more than 50% of the total price for two tickets, so it was not a true “2-for-1” deal.

The ASA acknowledged Qantas’ explanation that the 2-for-1 deal related to the “base” airfare, excluding charges and taxes, and that there was a table outlining the construction of the offer.  However, the actual breakdown of the offer was deemed to contradict the headline claim.

The ASA upheld the complaint as it considered the ad misleading.  This adjudication demonstrates that the formulation of a promotion must reflect the headline claim made and that the small print should not contradict, only qualify, the main text.

11.  Sit-Up Ltd, 4 March 2009

Five national press ads promoted discounted electric goods and perfume being sold on a falling price auction television channel. 

Complaint/decision

The complainants in each case challenged whether the ads were misleading because they did not emphasise the limited availability of the products in question.

The ASA upheld the complaints in each case.  Sit-Up claimed that it had based its estimate of demand for the products on previous promotions for similar products, but the ASA considered that the items compared were insufficiently similar to enable the estimates to be reasonable.  Moreover, when estimating demand, Sit-Up should have factored in their large discount on the prices compared with other retailers for the same items.  Sit-Up had included the usual disclaimers “limited stock” in the body copy of the ad and “subject to availability” in the footnoted text.  However, the ASA believed that Sit-Up should have gone further by stating in the body copy text that the number of items available or that stock was severely limited. 

This is a reminder that estimates for demand must be made on a reasonable basis and that disclaimers may not be sufficient.  Further, important conditions, such as those relating to the availability of items, must be made clear.

12.  Center Parcs (UK) Ltd, 25 March 2009

Center Parcs customers were given a leaflet at the end of their stay, offering them the chance to save up to 25% on their next booking, provided that they booked within 28 days of returning home.  The terms and conditions stated, “availability of this offer is restricted and no guarantee can be given as to the availability of a particular accommodation type or arrival date” and “This offer can be withdrawn at any time”. 

Complaint/decision

A customer tried to book a holiday at Center Parcs within the applicable dates as soon as he returned home from a Center Parcs visit.  However, he was informed that no discount was available at his preferred Center Parc Village.  He challenged whether the leaflet was misleading.

The ASA rejected the challenge.  Center Parcs provided evidence that the discount had been exhausted for only 5 breaks out of a possible 316 and the ASA considered this a small proportion.  Center Parcs had allocated 10% of the total bookings available to the promotion and this was deemed a reasonable proportion.  The terms and conditions also warned that availability was restricted.  The ASA decided that it would have been disproportionate and unreasonable to expect Center Parcs to highlight to customers the dates for which discounts had been exhausted. 

Where availability for a product has been exhausted, the ASA will have regard to proportionality and will examine the advertiser’s overall approach.  The ASA took the same approach here as in the Sit-Up decision, by considering the reasonable availability of the promoted product.

13.  Paramount Pictures UK, 25 March 2009

A TV ad for the film Tropic Thunder was broadcast on the Setanta Pub Channel and showed scenes containing offensive language, a severed head dripping blood and a character hitting his own hand with a mallet. 

Complaint/decision

A viewer complained that the graphic scenes and swearing were offensive and inappropriate.  She had viewed the ad during a football match shown at her local Conservative Club.

The ASA upheld the complaint.  The ad had been broadcast at 15:00, 17:15 and 18:15 during weekend football matches.  The swear word used is generally regarded as highly offensive and the other scenes featured blood and violence.  Although Setanta argued that the ad was broadcast on a pub channel, such channels can also be seen at licensed premises such as social clubs catering for families with children.  The ad was therefore offensive and unsuitable for broadcast during the afternoon and early evening. 

This highlights the importance of being aware of the scheduling times and locations of ads before they are broadcast.

14. Guardian News & Media Ltd, 25 March 2009

A national press ad for a utilities price comparison service stated, “find the best deal” and “save up to £660 on home energy bills”.  Footnoted text stated that the £660 was “average savings of the top 10% of energy users”.  These savings were “based on online savings provided to 20,100 users between 1 August and 11 August 2008”. 

Complaint/decision

The most interesting complaint was whether the user data, as gathered in August 2008, remained relevant at the time the ad was published in November 2008. 

The ASA found that, because energy prices are subject to rapid change, and The Guardian had failed to show that the savings quoted were still representative for November 2008, the data was no longer relevant and should not have been used. 

The time at which data is no longer relevant will obviously depend on the industry and how quickly it changes.  In this adjudication, the ASA appreciated the market sector and the frequency with which prices and tariffs change.

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