This article provides
a selection of the most interesting ASA adjudications from March
and a summary of the key issues considered in the
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.
1. Birds Eye Ltd, 11 March 2009 (fair comparisons, low fat
2. Muller Dairy (UK) Ltd, 25 March 2009 (“natural”
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
GAMING AND PROMOTIONS
5. Tombola (Alderney) Ltd, 25 March 2009 (appeal to children
and young persons)
6. InBev UK Ltd, 18 March 2009 (sexual success and daring
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)
9. Agent Provocateur Ltd, 4 March 2009 (stylised risqué ads in
suitable publication not offensive)
10. Qantas Airways Ltd, 4 March 2009 (meaning of
11. Sit-Up Ltd, 4 March 2009 (availability of an offer)
12. Center Parcs (UK) Ltd, 25 March 2009 (availability of an
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)
1. Birds Eye Ltd, 11 March 2009
A radio ad claimed that “five Birds Eye Chicken Dippers
contain less saturated fat than one sausage”.
1. A complainant claimed that the ad was misleading because it did
not state the type of sausage with which the Chicken Dippers were
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
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
2. Muller Dairy (UK) Ltd, 25 March
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
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
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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.
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
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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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
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
This is a reminder that the imagery used will be very important in
assessing appeal to children, even if the text alone would be
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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
Alcohol Concern challenged whether the ad linked alcohol to sexual
success or seduction and linked alcohol to daring, tough or
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
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
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
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
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
8. Wm Magners Ltd, 25 March 2009
The poster on London buses promoted Magners Lite. The text
stated “Only 92 calories per bottle. Still
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
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
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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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
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
Advertisers are reminded in this adjudication that even stylised
ads may fall foul of the rules if they are not suitably
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”.
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”
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
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
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
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
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”.
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
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
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.
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
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
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”.
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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