ASA Adjudications Snapshot – March 2014

ADJUDICATIONS

FINANCIAL

1. UK Insurance Ltd t/a Churchill, 26 March 2014 (an ad claiming that customers can receive 80% off their car insurance with an eight-year no claim discount was held not to be misleading as Churchill provided evidence showing that most customers did receive this discount)

FOOD AND DRINK

2. Kentucky Fried Chicken (Great Britain) Ltd t/a KFC, 5 March 2014 (a Christmas ad featuring carol singers referring to themselves as singing all their “stupid songs” was held not to cause serious or widespread offence for mocking Christianity)

3. Yoplait UK Ltd, 5 March 2014 (an ad describing a yogurt product as naturally thick was held not to be misleading for including rice starch in the recipe as the rice starch was used in the fruit puree layer of the product as opposed to the yogurt layer)

4. Mondelez UK Ltd, 12 March 2014 (a TV ad for a chocolate cake bar was held not to condone or encourage poor nutritional habits or an unhealthy lifestyle for referring to the product as a snack)

HEALTH AND BEAUTY

5. Salus (UK) Ltd, 5 March 2014 (the claim “with iron to help reduce tiredness and fatigue” was held to be an authorised health claim and therefore did not breach the CAP Code)

LEISURE

6. Deutsche Lufthansa AG t/a Lufthansa German Airlines, 12 March 2014 (a promotion offering flights to Hong Kong from £3,399 was held not to have been conducted fairly and honourably as the promotional price only became available at the end of the promotional period due to a technical error)

7. Paddy Power plc, 19 March 2014 (an ad in relation to placing bets on the outcome of the high profile Oscar Pistorius trial was held to cause serious and widespread offence and bring advertising into disrepute)

8. Chiltern Railways Company Ltd t/a Chiltern Trains, 26 March 2014 (claims that Chiltern Trains were more punctual and had more seats with tables than Virgin Trains were held not to be misleading)

9. Electronic Arts, 26 March 2014 (an ad for Battlefield 4 was held not to cause serious or widespread offence because statements in it were in reference to game-play and not war itself)

MOTORING

10. Volvo Car UK Ltd, 26 March 2014 (a radio advert for the Volvo XC60 was held not to misleadingly exaggerate the car’s performance or imply that the car was capable of being driven through two feet of snow)

RETAIL

11. The Hut.com Ltd t/a Zavvi.com, 19 March 2014 (a claim for next day delivery was held to be unsubstantiated as the complainant did not receive their order on the next working day and Zavvi had insufficient historical data to show that this was an unusual occurrence)

12. Aldi Stores Ltd, 26 March 2014 (an ad claiming that consumers could make considerable savings by participating in Aldi’s “swap and save” challenge was held to be misleading)

13. Argos Ltd, 26 March 2014 (an ad promoting the sale of the Xbox One during the pre-Christmas period was held not to be misleading even though the complainant experienced unavailability of the product in a number of stores)

TECHNOLOGY

14. Sony Europe Ltd, 12 March 2014 (a website promoting high-resolution audio was held to be misleading for exaggerating its capabilities and benefits)

15. Microsoft Corporation, 26 March 2014 (an ad claiming that Outlook’s email system does not scan emails for ad targeting whilst Gmail does, was held not to be misleading for scanning emails for viruses and spam)

TELECOMMUNICATIONS

16. Gigaclear Ltd, 5 March 2014 (an ad which claimed that customers were guaranteed a connection with a specific speed was held to be misleading as the speed claims were not absolute)

17. Hutchison 3G UK Ltd t/a 3, 26 March 2014 (results of a mobile checker were held not to be misleading despite two complainants getting inaccurate results)

FINANCIAL

1. UK Insurance Ltd t/a Churchill, 26 March 2014

A radio ad for car insurance featured an exchange between comedian Dawn French and brand mascot Churchill in which French kept repeating the number “80” in various forms and Churchill kept responding in the affirmative. This was followed by a voice-over which stated, “For 80% off your car insurance if you have an eight-year no claim discount, chat to Churchill. Applies to new customers for the first year. Most customers achieved this discount.”

Complaint / Decision

A complainant challenged whether the 80% saving claim was misleading as they had obtained several cheaper insurance quotes and believed Churchill had inflated their prices.

The ASA did not uphold the complaint. The complainant understood the claim to mean that Churchill offered rates that were 80% cheaper than their competitors. However, the ASA considered the claim to mean that Churchill could offer new customers an eight-year no claim discount of 80% on its own insurance rates. Churchill provided five screenshots of some sample quotes which showed an 80% discount on three of the sample quotes and a discount of between 78-80% on the other two.

Churchill explained that they expected around 81% of customers to achieve a discount of 80% or more which is why they included the qualifying statement “Most customers achieve this discount”. The ASA considered that 81% was sufficient to substantiate the claim. Because of this, and because Churchill had provided the sample quotes as evidence, the ASA concluded that the claim was not misleading.

The fact that Churchill had explicitly stated in the ad that “most” customers would achieve the discount, rather than stating that such a high discount was guaranteed, assisted in substantiating the claim as the ASA takes a strict approach to “guarantee” claims. Nevertheless, advertisers need to ensure that they can provide evidence to support claims on discounts, which Churchill did. Even where customers did not achieve a discount of 80% or above, Churchill were able to show that these customers achieved a discount close to that amount and this no doubt helped to substantiate the claim.

FOOD AND DRINK

2. Kentucky Fried Chicken (Great Britain) Ltd t/a KFC, 5 March 2014

Two TV ads and a VOD ad featured a song about making peace with those around you at Christmas time. One of the scenes in the ad featured a group of carol singers outside an old man’s house singing “We showed up at your house again singing all our stupid songs” to which the old man replied “Normally I’d hose you down, but now it just seems wrong”.

Complaint / Decision

Thirty complainants challenged whether the lyrics “all our stupid songs” were likely to cause serious and widespread offence for mocking an element of Christian worship.

The ASA did not uphold the complaint. It considered that viewers would interpret the lyrics to be an ironic reference to the old man’s normally negative reaction to carol singers at Christmas. The ASA further noted that the carol singers were at someone’s house rather than in a church or another place of worship and were therefore not illustrative of Christian singing or worship. As such, the ASA held that viewers would interpret the scene as being representative of the British tradition of carol singing at Christmas time in general which also encompassed non-faith based songs and were sung by both Christians and non-Christians alike. The ASA therefore concluded that the lyrics would not be understood as mocking Christianity and so were unlikely to cause serious or widespread offence.

Offensiveness is always likely to attract large numbers of complaints. Religion is one of the key areas of risk but the ASA often takes a robust view. In some adjudications the ASA has found an ad to cause serious or widespread offence for example see the Antonio Federici adjudications from September and October 2010.

3. Yoplait UK Ltd, 5 March 2014

A TV ad for Liberté yogurt featured a voice-over stating, “Discover Liberté yogurt. So incredibly creamy-tasting, so naturally thick, so liberating.”

Complaint / Decision

The complainant challenged whether the claim “naturally thick” was misleading and could be substantiated because they were of the impression that maize or rice starch was used to thicken the product artificially.

The ASA did not uphold the complaint. Rice starch is often used to thicken yogurts artificially and the ASA acknowledged that it appeared on the ingredients list for Liberté’s yogurts. However, Liberté explained that the rice starch was used to form part of the fruit purée layers of the product and that the thicker texture was the result of a particular straining process. The ASA considered that viewers would interpret the claim “naturally thick” to refer to the yogurt alone rather than the yogurt and fruit layer together. The ASA therefore held that the ad was not misleading.

Food ads relating to the use of the word “natural” or “naturally” can often attract complaints. If the starch was used to thicken the yogurt, it is likely that the complaint would have been upheld.

4. Mondelez UK Ltd, 12 March 2014

A TV ad for a cake bar showed a young boy sitting at a kitchen table and then an animated bear taking his hand. They were shown running through a field of wheat, walking on stilts through a chocolate river and bouncing on a hill made of sponge cake. The boy was then shown landing back in the kitchen before a voice-over stated, “Introducing Barny, a sponge snack made with ingredients like wheat, chocolate and eggs…” The kitchen table was shown with a pile of wheat, lumps of chocolate, a jug of milk, eggs and a jug of oil. On-screen text read, “No artificial colours. No preservatives”. The boy was then shown with his mum eating the cake bar next to a glass of milk and bowl of fruit.

Complaints / Decisions

1. Three viewers challenged whether the presentation of the ad implied a general health claim, which breached the BCAP Code.

2. Two viewers challenged whether the ad condoned or encouraged poor nutritional habits or an unhealthy lifestyle, particularly in children, by referring to the product as a snack.

Neither of the complaints was upheld.

1. The voice-over in the ad listed the product’s ingredients which were also shown on the kitchen table and constituted various elements of the imaginary landscape. The ASA noted that, although the ad provided this information on the product’s contents, no claims were made that they, or the product as a whole, conferred any health benefits. The ASA also considered that the statement “No artificial colours. No preservatives” merely provided information about the product rather than suggested that it conferred any health benefits. The ASA acknowledged that the child was shown doing physical activities in the ad but held that there was no suggestion in the ad that doing such healthy activity was as a result of eating the product. For those reasons, the ASA concluded that the ad did not breach the BCAP Code.

2. As the cake bar was accompanied with a glass of milk and bowl of fruit, the ASA considered that the ad made clear that it constituted part of a snack rather than being a snack on its own. The ASA also held that referring to the product as a “snack” did not encourage excessive consumption of it but instead implied that it was an option for a quick small bite to eat. The ASA noted that the child was not shown actively choosing the cake bar over the fruit nor was he eating the product to excess. It therefore concluded that the ad did not condone or encourage poor nutritional habits or an unhealthy lifestyle.

Adding a glass of milk and a bowl of fruit at the end of the ad no doubt assisted but had the complaint been upheld, it would be difficult to see how advertisers could advertise any cake or sweet. A similar complaint against Ferrero was also not upheld because Ferrero had emphasised the importance of having breakfast in the ad. Nevertheless, advertisers still need to take care; the ASA made clear in its 2012 annual report that protecting children from potentially misleading, harmful or offensive advertising was a key part of their work and food and drink advertising is an important part of that.

HEALTH AND BEAUTY

5. Salus (UK) Ltd, 5 March 2014

A poster for Floradix liquid iron and vitamin formula read “TIRED OF BEING TIRED? … Floradix with iron to help reduce tiredness and fatigue”.

Complaints / Decisions

The complainant challenged whether the claim;

1. “… with iron to help reduce tiredness and fatigue” was an authorised health claim in the EU Register of Nutrition and Health Claims for Foods; and

2. “TIRED OF BEING TIRED?” was a general health claim which needed to be accompanied by a specific authorised health claim as required by the CAP Code.

Neither of the complaints was upheld.

1. Under EU Regulation 1924/2006 on Nutrition and Health Claims, only health claims listed as authorised in the EU Register are permitted in marketing and advertising. The ASA noted that a daily dose of Floradix contained 107% of the Recommended Daily Amount (“RDA”) of iron which far exceeded the minimum condition of 15% of RDA for the product to be labelled as a source of iron. This would allow the product to bear the authorised health claim “iron contributes to the reduction of tiredness and fatigue”.

The ASA then considered whether “with iron to help reduce tiredness and fatigue” had the same meaning as “iron contributes to the reduction of tiredness and fatigue”. The ASA acknowledged that advertisers had some flexibility in rewording authorised health claims as long as the proposed rewording does not change the meaning of the claim and does not exaggerate or make the claim stronger. The ASA concluded that Salus’s rewording was acceptable as “with iron to help reduce” would have the same meaning as “iron contributes to the reduction of” and did not exaggerate the claim in any way.

2. Salus argued that the phrase “Tired of being tired?” was a question and could therefore have not referred to a health claim. However, the ASA considered that, in the context of the ad as a whole, consumers would interpret the phrase as suggesting that the product would be good for combating tiredness. The ASA therefore held that the claim was a general health claim relating to general health and wellbeing which meant that, under the CAP Code, it had to be accompanied by an authorised health claim. However, as the ASA had already concluded that the accompanying phrase “with iron to help reduce tiredness and fatigue” was an authorised health claim, the general health claim did not breach the Code.

Rewording was allowed here because it was just that and there was no exaggeration. This is an example of both general and authorised health claims being acceptable. The decisions show careful analysis by the ASA.

LEISURE

6. Deutsche Lufthansa AG t/a Lufthansa German Airlines, 12 March 2014

The website www.lufthansa.com featured text that stated, “Luxury, comfort and perfection: welcome to First Class Dubai from £2,999*”. When consumers clicked the “Book now” link they were redirected to a separate page with text which read, “…Book now before 19 November 2013 for travel between 13 January 2014 – 31 March 2014…”. The page also featured text which stated “Hong Kong from £3,399*”.

Complaints / Decisions

The complainant challenged whether;

1. the claim that First Class return flights to Hong Kong were available “from £3,399” was misleading as they could not find such flights available for less than £5,606; and

2. the promotion was conducted fairly and honourably because the promotional price of “from £3,399” only became available on the last day of the promotional period.

1. Not upheld. Lufthansa provided the ASA with evidence to demonstrate that the advertised promotional fare was available on significantly more than 10% of all reservable seats on six routes between the UK and Hong Kong across the promotional period. The ASA considered that a sufficient proportion of seats had been allocated for the promotion and that the claim was therefore not misleading.

2. Upheld. Lufthansa explained that the promotional fares for the Asia Pacific region had become unavailable due to a technical error and when they were made aware of this error, they took steps to correct the issue immediately. Although the ASA welcomed Lufthansa’s swift action, it noted that the CAP Code required promoters to avoid causing unnecessary disappointment. As the promotional fares were not available for a significant proportion of the promotional period, the ASA concluded that the promotion was not conducted fairly and honourably and therefore breached the CAP Code.

Pricing is always tricky. If consumers are disappointed, they are very likely to complain. The decision shows the application of the ASA’s 10% rule on the availability for promotions. Technical error will not relieve an advertiser from having complaints upheld but is likely to mitigate the impact of adverse publicity. On its own, it may even be possible to have the situation resolved informally.

7. Paddy Power plc, 19 March 2014

An ad for a bookmaker, which appeared in The Sun on Sunday, showed an image of an Oscar statuette bearing the face of South African athlete Oscar Pistorius. Text in the ad stated “IT’S OSCAR TIME”, “MONEY BACK IF HE WALKS” and “WE WILL REFUND ALL LOSING BETS ON THE OSCAR PISTORIUS TRIAL IF HE IS FOUND NOT GUILTY”.

At the time the ad appeared, the trial of Oscar Pistorius for the alleged murder of his girlfriend Reeva Steenkamp, was due to commence.

Complaints / Decisions

The ASA received 5525 complaints in relation to this ad.

1. Complainants challenged whether the ad was likely to cause serious or widespread offence because they believed that it was insensitive for trivialising the issues surrounding the murder trial, the death of a woman and Pistorius’s disability.

2. The ASA challenged whether the ad brought advertising into disrepute.

The ASA upheld both complaints.

1. Paddy Power sought to rely on the fact that the ad made no explicit reference to the murdered woman, death or violence. They also argued that betting on the outcome of a legal trial was not unusual or unlawful. However the ASA considered that as the ad was in relation to a high profile murder trial, it would be interpreted by readers as being related to the sensitive issues surrounding the trial and would therefore still constitute an implied rather than explicit reference to the death of the woman. Under the CAP Code references to anyone who is dead must be handled with particular care.

The ASA was of the opinion that the phrases “MONEY BACK IF HE WALKS” and “WE WILL REFUND ALL LOSING BETS ON THE OSCAR PISTORIUS TRIAL IF HE IS FOUND NOT GUILTY” made light of the serious decision-making process involved in that trial and the sensitive issues surrounding it.

Furthermore, although the ad made no explicit reference to Pistorius’s disability, the ASA considered that the phrase “IF HE WALKS” could easily be interpreted by readers as a reference to it, even if the phrase could also be interpreted as concerning the trial outcome. The ASA also held that the phrase made light of his disability.

For those reasons, the ASA concluded that the ad went beyond poor taste and was likely to cause serious or widespread offence.

2. Paddy Power argued that, due to the high level of media coverage of the trial, it was unsurprising that complaints had been received about the ad. They also regarded the ad to be a reflection of public interest and not a commentary on death, violence or disability. The ASA noted that it was exactly for those reasons that it would have been reasonable to foresee that the ad would cause serious or widespread offence, especially as it sought to gain commercially from the trial and made light of the sensitive issues involved. The ASA therefore concluded that the ad brought advertising into disrepute.

This is not a surprising outcome. Paddy Power ads are regularly the subject of a high number of complaints for causing controversy although these are not always upheld for example see the August 2012 adjudication in relation to Jack Cooper and the July 2010 in relation to blind footballers.

8. Chiltern Railways Company Ltd t/a Chiltern Trains, 26 March 2014

A press ad stated “Don’t be held to Branson. Anytime return to London – Virgin: £158, Chiltern £95”. Further text stated “Try Mainline today… spacious carriages and more tables” and “Chiltern Mainline is more punctual than Virgin Trains”. A leaflet distributed at an airport included text which stated “Chiltern Mainline is more punctual than Virgin Trains” and “WARWICK PARKWAY TO LONDON MARYLEBONE FROM £6 ONE WAY…spacious carriages and more tables … Virgin Anytime £158, Chiltern Anytime £95**”.

Complaints / Decisions

Virgin Trains (“Virgin”) challenged whether:

1. the claim “Chiltern Mainline is more punctual than Virgin Trains” was misleading as it compared their overall punctuality statistics rather than the specific journey being promoted in the ads; and

2. the claim “spacious carriages and more tables” was misleading because Chiltern Trains has fewer tables in its longest train than Virgin has in its Pendolino train.

Neither of the complaints was upheld.

1. Chiltern Trains (“Chiltern”) had used the right-time punctuality statistics published by Network Rail as these are considered to be the most accurate and reliable. These statistics were not broken down into individual routes but Chiltern argued that the claim in the ads did not state that it was route specific. The only other statistics available were the Public Performance Measure which did break down data into individual routes but which applied different definitions of punctuality on different operators. For example “punctual” was defined as no more than five minutes late for Chiltern but no more than 10 minutes late for Virgin. Although Chiltern had used the right-time statistics to make their claim, the Public Performance Measure statistics also supported their claim.

The ASA acknowledged that Chiltern had intended the claim to be based on the more accurate right-time statistics. Nevertheless, it considered that the claim should refer to the individual route advertised and so the Public Performance Measure statistics should be used even if a different measure of punctuality was used for the operators. As these statistics also supported Chiltern’s claim (even where the punctuality measure for Chiltern was more stringent), the ASA held that the ad was not misleading.

2. The ASA acknowledged that Virgin’s trains had a greater number of tables overall but this was due to there being a greater number of carriages. The ASA was of the opinion that customers would be more concerned about the percentage of seats that had tables as this would influence their individual chance of obtaining a seat with a table. Chiltern provided information that showed that 52-80% of seats were with a table whereas on a Virgin train the figure was 35%, even though Chiltern had fewer carriages. The ASA therefore concluded that this claim was not misleading.

This is a comparative ad as there is a direct reference to Richard Branson and Virgin Trains. Chiltern had the substantiation to make the claim. The claim was carefully made especially in relation to the spacious carriages and having more tables. Even with a different measure for punctuality, the claim was careful; had this brought about a different result, the complaint may have been upheld.

9. Electronic Arts Ltd, 26 March 2014

An ad for the computer game Battlefield 4 included scenes from the game whilst a voiceover stated “If you’re into rushing headlong into chaos, changing the map with one well placed shot, base jumping off a sky scraper, joy riding tanks and the glorious mind-blowing freedom of all out war. We’ll see you there”. The ad was given an ex-kids restriction by Clearcast.

The ad was broadcast on TV and was featured on VOD programming for 4OD, ITV player and STV player. There was also a website ad on www.battlefield.com/uk which included images from the game as well as text stating “Witness the glorious chaos of all-out war in the Battlefield 4 Multiplayer Launch Trailer” and “Get intel on the single player campaign and learn about the glorious chaos of all-out war in Battlefield 4 multiplayer.”

Complaints / Decisions

The ASA received 39 complaints.

1. The complainants challenged whether the ads, especially the claims “the glorious mind-blowing freedom of all out war” and “the glorious chaos of all-out war” were offensive for glamorising war;

2. some complainants challenged whether the TV ad had been appropriately scheduled because they had seen it on Remembrance Sunday and on the days around it;

3. some complainants challenged whether the ads were offensive and disrespectful to current and ex members of the armed forces and their families; and

4. some complainants challenged whether the TV ad was inappropriately broadcast at a time when it might be seen by children.

The ASA upheld none of the complaints.

1. Electronic Arts (“EA”) explained that the voice-over and text referred to by the complainants was supposed to highlight the game’s 64-player multiplayer functionality and to convey the chaotic nature of having so many players in the game. The ASA noted that the TV ad and VOD ads made no clear reference to this functionality and that the website ad only made a reference to “multiplayer”. Nevertheless, the ASA considered that consumers would interpret the ads (along with the images and footage from the game in them) as suggesting that “playing at war” through the game was exciting and thrilling.

The ASA recognised that some people would consider the claims to be distasteful and upsetting. However, the ASA was of the view that, within the context of these ads, such claims would be interpreted by consumers as referring to game-play and not to war itself, and therefore concluded that they were unlikely to cause serious or widespread offence.

2. The ASA acknowledged that some complainants had seen the ad on or around Remembrance Sunday and would consider such timing to be distasteful. However, the ASA noted that the ad was not broadcast around programmes specifically dedicated to Remembrance Sunday. Further, the ASA reiterated its view that consumers were likely to understand the claims in the ad to be about game-play and not war itself.

3. The ASA again reiterated its view that, within the context of the ads in their entirety, the claims “the glorious mind-blowing freedom of all out war” and “the glorious chaos of all-out war” would be interpreted by consumers as being a reference to game-play and not war itself. Although the ASA acknowledged that some consumers would have found this offensive, it concluded that the ads were not disrespectful to people associated with the armed forces.

4. The TV and VOD ads were given an ex-kids restriction which meant that they were not broadcast or placed around programming targeted to children. The TV ad was also given a timing restriction so that it was not shown before 7.30pm and EA’s media buying agency ensured it only bought advertising space for after this time. The ASA acknowledged that some older children may see the ad after 7.30pm but considered that none of the content was unsuitable for older children. Because of this, and because appropriate restrictions were put in place, the ASA concluded that the ad did not breach the BCAP Code on scheduling.

Although war is a controversial and sensitive issue, the ASA’s approach is not surprising here as it distinguished between reality and game-playing. Previous complaints for the advertising of Battlefield 3 were also not upheld. Moreover, the advertiser had taken reasonable steps to ensure that restrictions were in place to prevent children from seeing the advertisement.

MOTORING

10. Volvo Car UK Ltd, 26 March 2014

A radio ad in the style of a news report featured a voice-over stating, “Half an inch of snow fell over the UK last night, putting the country in a state of emergency. In Sweden two feet of snow has fallen. Reports are everyone is…fine.” Another voice-over stated, “Snow doesn’t stop Sweden. In an all-wheel drive Volvo XC60 it won’t stop you either.”

Complaint / Decision

Seven complainants challenged whether the ad was misleading for exaggerating the performance of the Volvo XC60 because they believed it implied that the vehicle could be driven through two feet of snow. Several of the complainants also highlighted their belief that factors other than the type of car used impacted upon the ability of Sweden’s road network to cope with heavy snowfall.

The ASA did not uphold the complaint. Due to the light-hearted tone of the ad, the ASA considered that listeners were unlikely to interpret the comparison between the UK and Sweden’s road networks in dealing with snowfall as a serious objective statement on the Volvo XC60’s performance in two feet of snow. Moreover, the ASA was of the opinion that listeners would understand that a road network’s ability to deal with heavy snowfall would depend on a range of factors, not just the type of car driven.

The ASA held that the statement “Snow doesn’t stop Sweden. In an all-wheel drive Volvo XC60 it won’t stop you either” would be interpreted as implying that the Volvo XC60 was able to cope with snowy conditions generally. Indeed Volvo had provided the ASA with its winter testing documentation demonstrating this. However, the ASA considered that this did not mean that the ad went so far as to imply that the car could be driven in two feet of snow. The ASA therefore concluded that the ad was not misleading.

The ASA took a pragmatic approach here. It is clear that most people would not expect a road network’s ability to cope with heavy snowfall to be completely dependent on the type of car driven or that a car could be driven with ease through two feet of snow.

RETAIL

11. The Hut.com Ltd t/a Zavvi.com, 19 March 2014

A claim on the “delivery information” page of the zavvi.com website stated “FREE UK STANDARD NEXT DAY DELIVERY when you spend over £75 – Selected products only…Order before 2pm on the previous working day. Delivered the next working day by courier.”

Complaint / Decision

The complainant challenged whether the claim regarding next-day delivery was misleading and could be substantiated because they did not receive their order on the next working day. The complainant placed their order on 28 February 2013 but it was not dispatched until 4 March 2013.

The ASA upheld the complaint. Zavvi explained that due to an administrative error, the order had arrived at the warehouse without the required next-day delivery designation. Although they recognised that this was an error on their part, they considered that the next-day delivery claim was not misleading as it did not contain any reference to “guaranteed” next-day delivery. The ASA acknowledged this and also accepted that customers would interpret the claim as meaning that the next-day delivery would be subject to exceptional or unforeseeable circumstances.

The ASA considered that Zavvi.com would have to show that the complainant’s experience was an exceptional occurrence for the claim not to breach the CAP Code. The Code requires advertisers to possess documentary evidence to support claims for a period before the claims were made and up to and including when the complainant’s order and subsequent complaint was made.

Zavvi sought to rely on data demonstrating the performance of their warehouse staff in preparing the orders for collection in time which showed that performance had improved considerably after changes in the Operations department from February 2013. Zavvi also sought to rely on data showing courier performance from 11 February 2013 onwards. They did not have the relevant data for deliveries prior to this date as they used a different courier beforehand.

Although the ASA acknowledged that the data suggested a generally high level of next-day deliveries, it held that Zavvi had not provided a sufficient amount of data to accurately demonstrate their delivery performance at the time of the complainant’s order. In particular the ASA noted that delivery performance data was only available from two weeks before the complainant’s order was placed and that no data was provided showing the entire progression of orders from the point at which they were processed to the time of delivery. The ASA therefore concluded that the data provided did not cover a sufficient period of time prior to the claim being made and the claim was therefore misleading and unsubstantiated.

Although the ASA accepted that Zavvi did not guarantee next day delivery it was more concerned with the lack of evidence showing their ability to provide next day delivery. Advertisers should ensure that they have enough historical data available to support their claims. Even where a claim does not provide a guarantee, the ASA considers it important to avoid disappointing customers and being unable to meet such claims would only be acceptable in exceptional circumstances.

12. Aldi Stores Ltd, 26 March 2014

A TV ad for Aldi’s “Swap and Save” challenge featured a woman going about family life and shopping. There were also shots of her speaking directly to the camera in which she said, “So I was pleasantly surprised at the variety – the fresh food, the meat, the fruit and veg – it’s cheap and it’s good. I think £45 a week is a lot of money… So it’s definitely worth doing for us. Meaning that we can go on an extra holiday a year.”

Text at the bottom of the screen read, “88 out of 100 people saved. Challenge completed between 01/04/2013 and 26/05/2013”. On-screen text then stated, “Tracy. Still saving?” and “Could you Swap and Save? Aldi.co.uk/swap”.

Complaints / Decisions

Aldi’s “Swap and Save” campaign involved independently recruited participants undertaking their normal grocery shop for four consecutive weeks at their usual supermarket and then swapping to Aldi for four consecutive weeks. The receipts were then objectively compared to work out the weekly price difference.

Asda challenged whether the ad was misleading because they believed that:

1. the selected elements of the comparison could give Aldi an unrepresentative advantage (Aldi had chosen to exclude certain items from its comparison);

2. the basis of the comparison and savings claims was unclear;

3. the type of products, including price promotions or product size, included in the comparison could not be verified;

4. the period to which the comparative data referred (01/04/2013 – 26/05/2013) was out of date and invalid for a price sensitive market (the ad started being broadcast in September/October 2013); and

5. the claim “I think £45 a week is a lot of money… So it’s definitely worth doing for us. Meaning that we can go on an extra holiday a year” implied that the savings achieved in that month could be replicated in future months when this could not be substantiated on the basis of the Swap and Save comparison.

The ASA upheld all five complaints.

1. Aldi explained that they had excluded items which could not be bought from Aldi’s core range (such as clothing, DVDs, electronics, spirits and pharmacy items) to ensure that the comparison was as fair as possible. They highlighted that if “high ticket” items, such as spirits, had in fact been included in the comparison, the savings would have actually been greater in 70% of cases. The ASA acknowledged that Aldi were trying to make the comparison as fair as possible but noted that, (a) these exclusions were not made clear in the ad, (b) a number of the excluded items were sold in both Aldi and their competitors, and (c) some of the excluded items, such as spirits, might reasonably be considered to be part of a consumer’s regular shopping. The ASA therefore held that the selected elements of the comparison could give Aldi an unrepresentative advantage.

The ASA acknowledged that, in some circumstances, the inclusion of excluded items in the comparison resulted in a greater saving. Nevertheless, it noted that this was not the case in all circumstances. Because of this, and because the exclusions were not mentioned in the ad, the ASA concluded that the ad created a misleading impression of the overall benefit to consumers of swapping supermarkets.

2. Aldi explained that the campaign was not a price comparison and that the aim was not to compare the prices of individual products and included the phrase “Could you swap and save?” as a question to make clear that they were not making a claim. They continued that the basis of the comparison was in relation to Tracy’s overall weekly spend and that further information on this was available on their website. However, the ASA considered that it was important for viewers to understand the basis of the comparisons and that such material information should have been included in the ad.

3. Due to the small number of competitors in the large supermarket market, the ASA considered that Aldi’s comparisons were with an identifiable competitor and so the basis of such comparisons should be verifiable. Aldi had not provided a full breakdown of the items bought by participants on their website due to concerns over breaching confidentiality. They explained that they were prepared to provide such information if requested, although the fact that information was available upon request was not made clear on the website. The ASA therefore concluded that the ad was misleading for not providing a sufficient breakdown on the products and prices to allow the comparison to be verifiable.

4. By the time the ad was broadcast, the price data was several months old. Aldi considered that prices would not have fluctuated significantly enough to make the claims in the ad misleading and provided evidence to show that the prices of their products had not changed significantly in that period. However, the ASA noted that they had not seen evidence to show that the prices of their competitors had not changed significantly. As such, it was not possible to tell whether the saving claims were still accurate and so the ASA concluded that the claim was misleading.

5. The ASA noted that the claim was based on Tracy’s individual experience of the campaign and that the ad questioned whether she was still saving rather than claiming that she was to demonstrate the possibility that her rate of saving may change. However, the ASA considered that a reference to an extra holiday a year implied that the £45 a week saving was likely to continue. Moreover, as per point 4 above, Aldi had failed to show that the price difference between itself and its competitors had been maintained over time. The ASA concluded that the claim had not been substantiated and was therefore misleading.

It is no surprise that such a high-profile campaign would attract a complaint from a competitor especially where unfavourable comparisons are made. Aldi ran a similar campaign in July 2011 which also attracted complaints. This adjudication was upheld in part.

13. Argos Ltd, 26 March 2014

A radio ad for Argos featured a voice-over which stated, “Make it the best Christmas ever with Argos. We’ve got all of this year’s top gifts including Xbox One, Furby, iPad and GHDs…check and reserve at argos.co.uk and pick up your gifts straight away from over 700 stores nationwide.”

Complaint / Decision

The complainant challenged whether the ad was misleading because the Xbox One was unavailable to order in a number of stores.

This ASA did not uphold the complaint. Although the ASA acknowledged that the complainant had struggled to order the Xbox One in a number of stores due to a lack of availability, it noted that Argos had anticipated high demand of the product and had subsequently ensured that there was as much additional stock as possible. Argos had secured additional stock before the ad went live and continued to purchase as much stock as possible daily. Argos had also taken steps to ensure availability of the product was spread across the country. The ASA therefore concluded that the ad was not misleading as Argos had ensured that they had sufficient stock to meet the high demand.

The ASA’s decision focused on Argos’ effort to make reasonable estimates of stock and ensure additional stock was available to deal with increased demand. In a similar adjudication for Tesco this month, the ASA took the same approach. In this case the complainants challenged whether there was sufficient availability of a Dyson vacuum cleaner which was being sold at a reduced price. The ASA did not uphold the complaint, precisely because Tesco had taken care to order additional stock, and also because they made clear with the wording “Hurry whilst stocks last” that they may run out of the product towards the end of the promotional period.

TECHNOLOGY

14. Sony Europe Ltd, 12 March 2014

A web page on www.sony.co.uk headed “High-Resolution Audio” included the following text, “…Remember how HDTV transformed your viewing experience? Now High-Resolution Audio will take your listening enjoyment to a similar thrilling new level. It really is like being in the recording studio or at a live performance, letting you discover subtleties and clarity of sound that bring your favourite tracks to life”. Further text stated, “What is High-Resolution Audio? In the constant quest for better sound and more listening pleasure, High-Res Audio was developed. Simply, it gives you digital audio formats that deliver better than CD quality sound to your ears. That’s because it converts analog music to digital at a higher rate than CDs. CDs are standardised at 16bit/44.1kHz, while high resolution sound is normally 24-bit/192kHz…You get to hear performances exactly as they were recorded, without any sound compromise”.

The ad included three graphs, one for “analogue” which showed a smooth curve, one for “CD: 16bit” which showed the same curve as bars and one for “High-Resolution Audio: 24bit” which also showed the same curve as bars but with more bars than the “CD” curve, giving it a more precise approximation.

Complaint / Decision

The complainant challenged whether the ad, especially the graphs, exaggerated the capabilities and benefits of high-resolution audio (“HRA”).

The ASA upheld the complaint. Sony explained that the graphs were intended to show the sound capturing process only and considered that the wording “it converts analog music to digital at a higher rate than CDs. CDs are standardised at 16bit/44.1kHz, while high resolution sound is normally 24-bit/192kHz” supported this view sufficiently. The complainant considered that the graphs showed an improvement in sound quality at listening stage implying that the smoothness and accuracy of the audio music signal improved with higher resolutions.

The ASA considered that this misinterpretation from consumers was possible because the web page also included the text “In the constant quest for better sound and more listening pleasure, High-Res Audio was developed. Simply, it gives you digital audio formats that deliver better than CD quality sound to your ears” and “You get to hear performances exactly as they were recorded, without any sound compromise”. The ASA continued that in this context, the graphs would be interpreted by consumers as showing HRA’s superior sound quality.

Sony explained that as HRA captured more data and reproduced a greater frequency range and wider dynamic range, using HRA resulted in a better overall listening experience. However, the ASA noted that Sony did not provide any evidence to show that the average person would be able to detect the differences in sound quality. The ASA therefore held that the ad, and especially the graphs, were misleading for exaggerating the capabilities and benefits of HRA.

Claims which are technical in nature are likely to cause an element of confusion amongst consumers. When making such claims, it is important to be as specific as possible and to ensure that supporting illustrations are clear.

15. Microsoft Corporation, 26 March 2014

A radio ad for Microsoft Outlook began with a character speaking in Pig Latin. A voice-over then stated, “Pig Latin may be hard to understand, but you probably need it if you use Gmail, because Gmail scans every word of your emails to sell ads. But Outlook.com doesn’t. And you can choose to opt out of personalised ads…”

Complaint / Decision

Two complainants challenged whether the ad was misleading for implying that Outlook offered greater privacy than Gmail even though Outlook also scanned the contents of all emails for purposes other than targeting ads.

The ASA did not uphold the complaint. The ASA noted that Outlook scanned emails for viruses and spam messages but considered that this was standard practice and that reference to this in the ad was not necessary because consumers were likely to expect this type of scanning. As the ad explicitly referred to Gmail scanning emails “to sell ads”, the ASA held that consumers would interpret the scanning as only being in relation to ad targeting. The ASA also highlighted the fact that the protective scanning carried out by Outlook did not require data collation and retention whereas Gmail’s scanning for the purposes of ad targeting did and that this type of scanning would be a privacy concern for some consumers. The ASA therefore concluded that the ad was not misleading.

The ASA took a robust approach here. It rightly distinguished between scanning emails for viruses and spam, which is standard practice, and scanning for ad targeting.

TELECOMMUNICATIONS

16. Gigaclear Ltd, 5 March 2014

Gigaclear, a company which offered broadband to a small geographically defined customer base, advertised its service on its website www.gigaclear.com. Featured text on the website stated “Each customer connection to the Gigaclear network runs at 1000Mbps (1Gbps) for uploads and 1000 Mbps (1 Gbps) for downloads regardless of time of day, weather or distance from the cabinet…”

Complaint / Decision

The complainant challenged whether the ad misleadingly implied that customers would always receive the stated speed capacity for the service they had purchased, because they believed that the speed customers would receive was dependent on additional factors and not just the time of day, weather or distance from the cabinet.

The ASA upheld the complaint. The ASA noted that Gigaclear’s advertising stated that its services “ran at” a certain speed rather than “up to” a certain speed. The ASA therefore considered that the claim was an absolute speed claim in nature as consumers would interpret this language to mean that they would always receive the stated speed capacity. Gigaclear sought to rely on line speed data for their customers which showed that the majority of their customers received the stated speed capacity. However, the ASA held that this was not sufficient evidence to support the absolute speed claim as there were still a number of instances in the data where the stated speed capacity was not achieved and the size of the data sample provided to the ASA was relatively small.

Broadband speeds are regularly the subject of complaints which are either made by disaffected customers or competitors. Advertisers need to take care and follow CAP guidance carefully. Here, making a specific claim for something being “at” a particular speed is likely to be almost impossible to substantiate. This decision shows how just small changes in wording could have made a difference.

17. Hutchison 3G UK Ltd t/a 3, 26 March 2014

Two complainants entered their postcodes into a mobile phone coverage checker on www.three.co.uk. The results stated “3G coverage. Excellent service. You can make calls, send texts, and use the internet on our 3G network. However, the signal strength may vary, when you’re indoors”. Wording below the map read “Although we try to make our maps as accurate as possible, the information is only a guide and doesn’t guarantee service availability in a particular location.”

Complaint / Decision

Two complainants challenged whether the claim that the 3G coverage for their postcode was “Excellent” was misleading and could be substantiated because they received poor signal.

The ASA did not uphold the complaint. Despite the complainants experiencing a poor network signal in an area deemed to have “Excellent” network coverage by the checker, the ASA took into consideration that Three had said that their coverage checker was 90% accurate. Three had also provided a report from Ofcom and the CRFS evidencing the accuracy of the prediction tool and prediction model used in the coverage checker. The tool and model also complied with industry standards. The ASA therefore considered that the coverage checker’s results were accurate for a significant majority of Three’s customers.

The ASA also recognised that, as the coverage checker’s results were in reference to postcodes, there would be areas within a given postcode that would receive a better or worse signal than the result provided for the postcode overall. Moreover, as the wording at the bottom of the checker explained that the results were only a guide, the ASA considered that consumers would interpret the results to be only an estimate.

The ASA places importance on ensuring that broadband advertising, in particular regarding speed claims, is not misleading. It would seem logical that the same would apply to apps which give details on network coverage. The fact that Three were able to provide evidence as to the claim’s accuracy and had explicitly expressed that the information was only a guide was key to a positive outcome.