ASA Adjudications Snapshot – September 2009

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

This month, the ASA particularly considered comparative advertising claims, claims in product names, use of celebrities in alcohol advertising and availability issues.

ALCOHOL

1. Spendrups Bryggeri AB, 30 September 2009 (use of celebrities)

HEALTH AND BEAUTY

2. Goldshield Ltd, 16 September 2009 (product names)

3. Union Swiss Ltd, 16 September 2009 (breakthrough claims)

4. Guthy-Renker Ltd t/a TV Shop, 30 September 2009 (cumulative effect and use of celebrities)

GAMBLING

5. Betfair Ltd, 16 September 2009 (age of persons featured and association with youth culture)

COMPARATIVE ADVERTISING

6. TalkTalk Telecom Ltd, 2 September 2009 (significant differences between compared services)

7. Thomas Cook Retail Ltd, 9 September 2009 (accuracy of price promises)

8. Tesco Stores Ltd, 16 September 2009 (in-store and on-line price comparisons)

AVAILABILITY

9. Argos Ltd, 2 September 2009 (ensuring sufficient availability of promotionally priced products)

OTHER

10. Travelbag Ltd, 9 September 2009 (misleading BOGOF claims)

11. Universal Church of the Kingdom of God t/a UCKG, 23 September 2009 (unfair reference to CAP Code in advert)

12. J & S Security Ltd, 30 September 2009 (use of images without consent)

13. Play Ltd t/a Play.com, 30 September 2009 (use of visual images in price reductions)

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ALCOHOL

1. Spendrups Bryggeri AB, 30 September 2009

A TV ad for Mariestad Lager shown on TV3, a channel aimed at a Swedish language audience, showed a man’s hands as he poured himself a glass of the product alone in his flat. Flashbacks showed him being approached for his autograph in a gym, congratulating the crew on a film set, in a music studio and being applauded as he attended a red carpet event with two glamorous women. The ad ended with the man toasting himself in the mirror - he was revealed to be the famous Swedish actor, director and musician Peter Stormare. Large text on the screen stated “Dricks av livsnjutare sedan 1848”, which translates to “Enjoyed by bon vivants since 1848.”

Complaint/Decision

A viewer challenged whether the ad was in breach of the Code for its use of a celebrity and for suggesting that alcohol could be a remedy for boredom and loneliness.

The ASA noted that the ad focused on a recognisable figure, who was presented as popular and successful with a glamorous lifestyle. However, the ASA also noted that alcohol was only shown in the scene where he was relaxing at home and did not appear to enhance his popularity, confidence or sexual success. Peter Stormare appeared relaxed and there was no suggestion that he was using alcohol to overcome problems, such as loneliness or depression.

This is an interesting adjudication as it demonstrates the ASA taking what appears to be a slightly more lenient approach in relation to alcohol advertisements. It reminds advertisers that it may be permissible in certain circumstances to associate alcoholic brands with good taste and a generally successful celebrity, provided that there is no association (express or implied) with personal qualities such as sexual success or with overcoming problems.

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2. Goldshield Ltd, 16 September 2009

A TV ad for a slimming aid called LIPObind featured a man and woman smiling and laughing in a taxi and then at a front door. The woman began to pull out some door keys but, as she did, a box featuring the product name “LIPObind” poked out at the top of her bag. After going upstairs alone, the woman ran her hand over her buttocks and then smiled at herself in the mirror. She took the box of LIPObind out of her bag and placed it on a shelf in the cabinet. A close-up of the box stated, “LIPObind - Find your true form. CERTIFIED MEDICAL DEVICE ”.

Complaint/Decision

Complainants challenged whether (i) the ad implied that LIPObind would assist weight loss, and (ii) the broadcaster had obtained suitably qualified independent medical advice on the efficacy of LIPObind.

The ASA considered that the phrase, “find your true form” could reasonably be interpreted as referring to weight loss, especially when used in conjunction with images that strongly implied that the woman had lost weight, such as her smiling in the mirror whilst stroking her buttocks.

The ASA also concluded that the product name itself could be regarded as a claim. The ASA noted that the emphasis was placed on the prefix “LIPO”, which forms part of the word “liposuction”, a term commonly understood to refer to weight loss surgery. The ASA concluded that viewers who were concerned with weight were likely to associate the word “LIPO” as referring to or being synonymous with fat.

Goldshield had argued that, “Find your true form” was merely advertising puffery with no defined meaning. However, the ASA highlighted that claims did not necessarily have to be made expressly and could be made through inference, writing, speech, visual images or through the product name itself.

The ASA therefore concluded that the ad made several weight loss claims and, because Goldshield had not provided sufficient evidence to substantiate these claims, the ad was considered misleading.

In reference to the second complaint, the ASA noted that the advertiser had not provided and the broadcaster had not obtained suitably qualified medical advice on the efficacy of LIPObind. The ASA therefore upheld the complaint on the basis that the ad breached the Code.

This adjudication reminds advertisers to exercise caution in relation to implied claims, particularly in the context of health and beauty products where robust substantiation will be required. It also highlights the risks of claims in relation to product names, where care always needs to be taken to qualify any implied claim.

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3. Union Swiss Ltd, 16 September 2009

Two ads for Bio-Oil featured a woman talking directly into a camera. The first ad referred to the product’s effect on stretch marks and included the words, “I started using Bio-Oil when we discovered I was pregnant... I was worried about stretch marks...since I’ve discovered Bio-Oil it’s like a sense of relief because you can do something about it. It’s really worked for me....”. A male voice-over at the end of the ad concluded, “Bio-Oil helps improve the appearance of scars, stretch marks and uneven skin tone ”.

The second ad used similar language but in relation to facial scars and the same voice-over at the end of the ad.

Complaint/Decision

Two complainants challenged the efficacy of Bio-Oil in improving the appearance of scars and uneven skin tone, and the ASA and another complainant challenged the efficacy in relation to stretch marks.

The ASA took expert advice. They understood from that advice that that the expert was unaware of any product that had ever been proven to reduce scars, other than those which had a colouration or masking effect or which used various types of pressure. Whilst the expert noted the single blind trial submitted by Union Swiss, he also noted several other published, peer-reviewed studies which suggested such products were ineffective. He therefore concluded that the claim constituted a ‘breakthrough’ claim, for which a higher standard of evidence was required. He concluded that the evidence provided was not sufficient to support the ‘breakthrough’ claim, particularly as Union Swiss’ study was not double blinded and there was no control for a placebo effect.

The expert made similar criticisms of the studies in relation to skin tone and stretch marks. In view of this, the ASA concluded that the studies were insufficiently robust and there was little evidence to suggest that Bio-Oil had anything more than a slight moisturising effect.

This adjudication serves as a reminder that advertisements for cosmetic products which make ‘breakthrough’ type claims require evidence of the highest standard in support of these claims. These types of claim are comparable to the level 3 “significant advance in science or technology” set out in the CTPA Guide to Advertising Claims.

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4. Guthy-Renker Ltd t/a TV Shop, 30 September 2009

A tele-shopping infomercial on Guthy-Renker’s TV Shop channel for the Meaningful skin-care line showed images of Cindy Crawford applying the product to her face. The female presenter asked, “How has Cindy Crawford, the world’s most famous supermodel, managed to stay so young for so long? Cindy has barely aged in a decade. How does she do it? The secret to Cindy’s flawless skin is French skincare expert Jean Louis Sebagh.... in a history-making discovery, scientists have discovered a rare melon with a powerful antioxidant that seems to prevent the visible signs of ageing”. The ad showed photographs of two melons, one labelled “ordinary melon” and the other “rare melon”. The “ordinary melon” was seen to rot and decay over a period of 12 days, while the “rare melon” appeared to stay the same. The voice-over said the “rare melon” appeared “youthful and preserved” and that the products derived from the enzymes these melons produced would “help to shield your skin from the further signs of ageing”.

Before and after pictures showed the results of 30-days’ application of the product, including the effect on lines, wrinkles, skin tone, skin pores and redness. Cindy Crawford explained that Meaningful Beauty was the only product she used. In another interview, Sebagh explained that Crawford had come to him since she was 29 and she looked the same then as she did now (aged 41).

Complaint/decision

Two viewers objected that the ad was misleading because it implied the products were responsible for the youthful appearance of Cindy Crawford’s skin. The ASA also challenged whether (i) the before and after shots in conjunction with the text, “30 day results” misleadingly implied the product had a cumulative effect and (ii) the advertiser could substantiate the implication that the melon enzyme /antioxidant ingredient was responsible for reducing the appearance of lines and wrinkles and protecting the skin against premature ageing.

The ASA considered that it would be apparent to most viewers that Cindy Crawford was simply the face of the product and not that the product alone was responsible for her youthful appearance.

However, the ASA upheld both of its own complaints. The advertiser did not have evidence to support the claim that the effect of 30 days’ of product application differed from just a single use. They considered that the claims relating to the melon ingredient implied that the skincare range contained a specific ingredient that could protect the skin against premature ageing. The advertiser provided tests on the SOD enzyme itself, but failed to provide clinical studies which tested the efficacy of the enzyme as it was found in the product.

Therefore, the ad was found to be misleading on both ASA challenges.

Advertisers of health and beauty products should always be cautious about referring to the efficacy of specific ingredients contained in the products if they do not have the necessary levels of substantiation confirming that the product advertised, which contains that ingredient, has a comparable effect.

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GAMBLING

5. Betfair Ltd, 16 September 2009

An email ad for an online poker site showed a young woman. Text stated, “ONLINE EXPERIENCE IS MEASURED IN GAMES, NOT YEARS. JOIN THE BREED. Annette Obrestad - ANNETTE_15”.

Complaint/Decision

A complainant objected that the ad was irresponsible, because it might encourage children and young people to gamble. The ASA also challenged whether the ad breached the gambling provisions of the Code, as the ASA believed that Annette Obrestad was 20 years of age.

The ASA noted Betfair’s assurance that the email would only be sent to individuals over the age of 18, due to an age restriction arrangement they had with Lucky Lotto. However, the ASA also noted the Code stated that gambling marketing communications should not be likely to appeal to children or young persons, especially by reflecting or being associated with youth culture.

The ASA considered that the reference to “ANNETTE_15” in conjunction with text stating, “ONLINE EXPERIENCE IS MEASURED IN GAMES, NOT YEARS” implied that Ms Obrestad was even younger than she was (aged 20). The ASA concluded that, by representing a successful poker player with the implication that she was 15 years old, the ad could encourage young people to gamble and was therefore irresponsible.

The ASA also concluded that the ad was in breach of the code as no one under 25 years of age should be featured gambling in a marketing communication or playing a significant role.

This unsurprising adjudication reminds advertisers that the ASA will always take a strict approach in interpreting the rules on gambling. Advertisers should avoid associating gambling with youth culture and should take care to ensure that no one who is (or seems to be) under 25 years olds is shown gambling or playing a significant role in a gambling ad.

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6. TalkTalk Telecom Ltd, 2 September 2009

A circular for a home phone and broadband package stated, “You could make great savings with our NEW myTalkTalk home phone and broadband package ... PLUS you could save up to £112 a year compared to equivalent BT products!*” Bullet-pointed text underneath stated, “It’s really easy to switch - it only takes one call to join and we do everything for you; Free technical support (from a TalkTalk landline); You can keep your existing number (in most cases)”. Further text stated, “Pay for what you want. Not what you don’t. Our new plan gives you all the essentials. Then you can add or remove Boosts** whenever you wish. That way you only pay for what you want, not what you don’t”. The ad listed the Boosts, or add-ons, that customers could get for the service, which were “Anytime UK Landline Calls, 1/2 Price Calls to Mobiles***, Download Plus, Security Boost, Speed Boost, Calling Features”.

Footnoted text at the bottom of the ad stated, “BT comparison: Annual saving based on subscription cost comparison to BT E&W Call Plan with BT international Freedom bolt on, Call mobile add-on & Total Broadband Option 1. Comparison inc. TT connection fee of £29.99 & £10.50 line rental applicable to TT & BT ... **Boosts: Once opted-in you will continue to receive a Boost until you opt-out or your contract ends ... ***1/2 price mobiles boost: Applies to calls to UK mobiles only. Connection fee of 6.85p applies to all calls”.

Complaint/decision

British Telecommunications plc (BT) challenged whether:

(1) the claim “1/2 Price Calls to Mobiles” was misleading, because it did not take into account that there was a connection fee;

(2) the ad misled customers by omission, because it did not make clear that customers would lose security features by switching from BT to TalkTalk, and that customers would have to pay a supplement to get an equivalent service.

The ASA considered that consumers would understand the claim “1/2 Price Calls to Mobiles” to mean that the total cost of a call, including the connection fee, from their landline to a UK mobile would be half price. Whilst the ASA acknowledged that the footnoted text stated that a “connection fee of 6.85p applies to all calls”, the ASA also considered that this qualification was not sufficient to correct consumers’ understanding of the main claim. The ASA concluded that the ad was misleading.

In reference to the second claim, the ASA also considered that the differences between the basic security features offered by TalkTalk and BT should have been stated prominently in the ad in order that consumers could make an informed comparison of the packages before deciding whether to switch.

Despite being freely available on the internet, the ASA also considered that the provision of parental control software and anti-spyware protection were significant features that were likely to influence consumers’ evaluation of the different packages undergoing comparison. Because these were not included, the ASA concluded that the ad was misleading and the complaint was therefore upheld.

This adjudication serves as a reminder to advertisers clearly to state any differences between services being compared and to identify any limitations that are likely to influence consumers’ evaluation of that comparison. Also, advertisers need to make sure that any footnotes should merely qualify claims rather than contradict them.

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7. Thomas Cook Retail Ltd, 9 September 2009

National press and poster ads promoted the Thomas Cook foreign exchange. The press ad showed a picture of a beach with two children holding a large EURO20 note. Accompanying text stated, “We beat the Post Office exchange rates.* 0% commission too”. The asterisk was linked to small print that stated “*Offer applies to transactions at Thomas Cook and Going Places high street travel stores only and to rates at Post Office high street outlets for an equivalent transaction on the same day….”. The poster ad used similar imagery and the same text.

Complaint/Decision

The Post Office Ltd (the Post Office) and one member of the public challenged whether the claim “We beat the Post Office exchange rates*” was misleading and could be substantiated

The ASA compared the exchange rates sent by Thomas Cook with the rates offered by the Post Office. The ASA noted that on the day the ads first appeared, and the following day, the 301 Post Office branches offering differential pricing offered better exchange rates for US dollars for amounts above and below £500. Moreover, they noted the Post Office’s policy of differential pricing had not been set up in response to Thomas Cook’s price campaign, but was in existence before the ads appeared.

Because the claim, “We beat the Post Office exchange rates*” was a price promise, the ASA considered that Thomas Cook needed to show that all of their branches offered better exchange rates on all currencies than all Post Offices branches from the date the ads appeared. Because that was not the case, and they had not ensured they were able to beat the rates offered by the 301 Post Office branches offering differential pricing, the ASA concluded the claim was unsubstantiated and misleading.

This decision reminds advertisers that comparative “price promises” should be limited to the facts and should only be used where there is robust evidence to substantiate the claims.

These types of claims are always likely to be challenged by competitors, particularly when they are referred to by name.

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8. Tesco Stores Ltd, 16 September 2009

A national press ad was headlined, “Fill Your Boots at Tesco” and showed images of products alongside the prices at which they were sold at Boots and Tesco. On of the items was Gillette MACH3 razor blades, which Tesco claimed were £11.24 at Boots and £9.76 at Tesco. Small print stated, “Prices checked online at Boots.com on 25/03/09”.

Complaint/Decision

Boots claimed that the price quoted was the online price only, and that the razor blades could be purchased in Boots stores for £9.60. Boots therefore argued that the ad was misleading, as it did not make clear that the prices used in the comparison did not apply in-store.

The ASA concluded that the ad was fair, as Tesco had compared prices using the same sales channel, being online sales only. The ASA then analysed whether the ad could be considered to mislead consumers. The ASA understood from Boots that their online prices generally mirrored those in-store, but not in every case and that it was incorrect to assume that, where there was a price difference, the on-line prices would always be cheaper. However, Boots was unable to provide the ASA with any details of how often their in-store and online prices differed. The ASA considered that, without that information, it was unnecessary to require Tesco explicitly to state that Boots’ online and in-store prices differed. The ASA therefore concluded that the disclaimer, “Prices checked online at Boots.com on 25/03/09” was sufficient because it was likely to suggest that prices in the comparison may not apply in store. The complaint was therefore not upheld.

This adjudication demonstrates that advertisers can make comparative headline claims, provided that the disclaimers used do not contradict the claim and set out clearly the basis of any comparisons.

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AVAILABILITY

9. Argos Ltd, 2 September 2009

A national press ad for Argos was headed “LESS THAN ½ PRICE Sandisk USB Flash Drives*”. Four flash drives were pictured, including the Sandisk Cruzer Crossfire, and the accompanying text had the original price with a line through it and the sale price. The asterisk linked to some small print, which stated, “selected lines. Offers end 24th December 2008…Offers my not be available in all stores, over the telephone or the internet. For availability please check your local store, visit www.xxxx or call 0845 xxxx…”.

Complaint/decision

One complainant challenged the availability of the advertised Sandisk Cruzer Crossfire flash drives at the price shown. He visited his local store on the day the ad appeared and was told that the items were not in stock in any Argos stores in the area. Further, even after the offer had ended and the price of the items had subsequently increased, the items were still not available.

The ASA acknowledged that Argos had anticipated demand for the flash drives on the basis of their normal sales pattern and on a previous promotion, but the take-up had exceeded Argos expectations. However, the ASA considered that, because the items were much cheaper than they had been in the earlier promotion and were dramatically reduced from their original selling price, the promotion was not similar and a greater demand for the flash drives should have been anticipated. The ASA considered that Argos had not accounted for this difference in their calculation of potential demand.

Further, because each store appeared to have only one or two 4 GB and 8 GB Crossfire flash drives, the ASA considered that the small print was insufficient to warn consumers of the very limited nature of the offer. The ASA therefore concluded that the ad had given a misleading impression of the availability of the products.

This adjudication serves as a reminder to advertisers to consider carefully the availability of promotional items and that previous demand may not be sufficient to rely on if there are significant price reductions.

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OTHER

10. Travelbag Ltd, 9 September 2009

A national press ad promoting flights and holidays had prominent text stating, “Emirates Business Class Sale 2 for 1....Cape Town £895 Auckland £1,539”. The small print stated, “2 people must travel together at all times. Price beater only applies to products contracted by Travelbag. Prices are pp based on 2 sharing, subject to avail & inc taxes. Prices correct at time of going to press”.

Complaint/Decision

One complainant challenged whether the ad misleadingly implied that two tickets for Auckland could be purchased for the headline price of £1,539, when this was the price per person. The ASA acknowledged Travelbag’s assertion that the ad was not misleading as the terms and conditions clearly stated that the price was per person based on two people sharing. However, the ASA considered that the prominent claim of, “Business Class Sale 2 for 1” was likely to give readers the impression that they could get two tickets for the prices listed below that claim.

This decision is equally applicable to more usual BOGOF type offers. Small print may not be sufficient to qualify strong claims and correct a misleading impression on price.

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11. Universal Church of the Kingdom of God t/a UCKG, 23 September

A poster for spiritual support included a testimonial from a woman about her son’s near-death experience, which she appeared to believe had been helped by anointing oil from the UCKG. A footnote stated, “In accordance with the CAP Code, point 50.3, the UCKG HelpCentre’s spiritual advice is to be seen as a complement to the scientifically proven treatment you may be receiving. The UKCG does not claim to heal people but believes that God can through the power of faith. Always follow your doctor’s instructions”.

Complaint/decision

The main challenge by the ASA was whether the reference to the CAP code was an implied endorsement of the ad. The ASA found that the ad did not comply with the Code on point 50.3 and that readers were likely to believe that it did and, further, that the services were endorsed by CAP, which was a breach of CAP Code clause 14.6 (Testimonials and Endorsements).

This adjudication demonstrates that the ASA will take a strict approach in relation to any references to the Code which unduly increase the credibility of an ad. It also reminds advertisers that the ASA can challenge any aspect of an advertisement once it has been brought to their attention, even if the public did not complain about that particular issue.

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12. J & S Security Ltd, 30 September 2009

A leaflet promoting security services included an image of a man wearing a fluorescent jacket and the following text, “Fully uniformed guards, all guards are S.I.A Licensed....S.I.A Licensed Guards”.

Complaint/Decision

The complainant, whose images appeared in the ad, objected that his image had been used without his consent. He also challenged whether the ad was misleading, because it stated that the guards were licensed by the S.I.A, which he believed was not the case.

The ASA upheld both complaints. The ASA noted that J & S Security had not obtained written consent before using the image and acknowledged that the complainant was an ex-employee who had believed that his photograph was being taken for an identity card, rather than as part of an advertising communication. The ASA therefore concluded that the use of the image was in breach of the Code.

In the absence of substantiation for J & S Security’s claim of having S.I.A licensed guards, the ASA concluded that this was likely to mislead consumers.

This adjudication reminds advertisers that images of individuals should not be used unless their consent has been obtained in writing.

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13. Play Ltd t/a Play.com, 30 September 2009

An email featured the heading, “Play.com: Summer Sale Meltdown Now On!”. The body of the email featured the headline, “MELTDOWN DEALS” and a number of text boxes listing different product categories such as DVDs and books. One box featured a picture of three characters from the Harry Potter films with the text, “Blu-rays from £7.99”.

Complaint/Decision

The complainant challenged whether the ad misleadingly implied that a Harry Potter film would be available on Blu-ray for £7.99.

The ASA noted that 13% of promotional items were available at the stated “from” price. Play.com asserted that the email had not shown a specific movie cover but had used a generic Harry Potter graphic to promote a category of Blu-ray film products, rather than referring to a specific film. Play.com insisted that the use of “from” would have made clear to consumers that a Harry Potter Blu-ray was not necessarily available at £7.99 but that one would be included in the Meltdown promotion.

Whilst the ASA appreciated these arguments and Play.com’s assertion that the pricing information was only one click away, the ASA nevertheless held that the ad was likely to mislead consumers into thinking that at least one Harry Potter DVD would be available at the “from” price.

This adjudication reminds advertisers to be cautious when selecting visual images as these can be significant in creating a misleading impression, particularly when used in conjunction with strong pricing claims.