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Summary of interesting ASA rulings published in February
Food features in a number of the rulings underlining the importance of not overstating any claims as to environmental benefits, as well as emphasising the importance of careful compliance with the EU Nutrition and Health Claims Regulations. Targeting issues proved to be key in two adverts for Rizla cigarette rolling papers, one successfully, and one not. In a not upheld decision in relation to an advert for Clinique’s Fresh Pressed product, the ASA’s focus on what consumers would actually understand from the imagery and brand name was key in reaching the conclusion. The risk to a brand name from an upheld complaint was also highlighted in the Dextro Enery decision. This ruling also highlights that a complaint may still be upheld even where CAP copy advice has been given. There are also two contrasting decisions for financial services products looking at the issue of whether an advert is irresponsible for encouraging particular purchases.
Food and drink
Plenish Cleanse Ltd – 6 February 2019
Two complaints were made about two poster adverts for Plenish almond drink, both of which focused on the benefit to the planet of switching to a plant-based diet. The complainants understood that almond production could have a negative impact on water levels (and particularly in certain areas of the world that were already affected by drought), and challenged whether the adverts misleadingly exaggerated the environmental benefits of the product.
The ASA considered that Plenish Cleanse were able to substantiate that switching from cow’s milk to Plenish almond drink was one way in which consumers could transition to a more plant-based diet, and that Plenish almond drink had a lower overall environmental impact than cow’s milk. This was the meaning that the ASA considered was what consumers would understand from the two adverts. Plenish Cleanse were also able to satisfy the ASA that the almonds in their product were sourced from low-impact farms in Spain, in regions which were not encumbered by drought. In reaching its conclusion, the ASA reviewed the data provided, including lifecycle analysis for the product with comparative data for cow’s milk production both in the UK and abroad.
Considering carefully what consumers are likely to understand from any claims being made is always key – and is often surprisingly overlooked. The ASA will also always review carefully environmental claims being made and, in doing so, will generally look at the entire lifecycle of any product which is in question.
ASC Twelve Ltd t/a Simple as Fat (13 February 2019)
This complaint related to seven different tweets from a “Simple As Fat” Twitter account, all effectively advocating a low carb high fat diet and referencing the ability to cure Type 2 Diabetes (and even erectile dysfunction caused by diabetes) as well as achieve weight loss, with the diet.
The complaint was on the basis that the tweet adverts discouraged essential treatment for conditions for which medical supervision should be sought, namely diabetes, erectile dysfunction and obesity, and whether the diet offered suitably qualified supervision, as well as whether the diet was a nutritionally well-balanced diet plan with weight loss claims which could be substantiated.
By way of response, the advertiser simply sought to rely on a new ‘Low Carb’ initiative being initiated by the NHS. Unsurprisingly, the ASA upheld the complaint in every respect. No evidence was provided to show the diet plan would be used under suitably qualified supervision, and the ASA was concerned that this would also discourage essential treatment for conditions for which medical supervision should be sought. There was also no actual evidence that the diet plan could result in weight loss. Any weight loss claim should be supported by rigorous trials on people; testimonials not supported by trials did not constitute substantiation. Moreover, details of the nutritional composition of the diet plan had not been provided, and the ASA was concerned that the diet plan was not in line with the government’s recommendations regarding a nutritionally well-balanced diet and how to lose weight healthily.
Although not a surprising outcome, this ruling does highlight the risk that companies may have with ill-thought through tweets. It is much more likely that issues will arise with promotional tweets than adverts that have to go through a more extensive production process.
Dextro Energy GmbH & Co KG – 13 February 2019
A London Underground poster for the advertiser’s glucose tablets featured the text "LIFE'S HARD", with a large upward arrow with "CHEAT!" written inside. Further text stated "FEEL THE BURST - OF FLAVOUR" around a packshot with "DEXTRO ENERGY" in an upward arrow alongside the words "fast" and "direct", which appeared in lines denoting speed, and text which stated "orange + vitamin C". Small print at the bottom of the poster stated "Vitamin C can contribute to the reduction of tiredness and fatigue".
The complaint was on the basis that there was an implied claim that the product would provide an energy boost, which was a specific health claim which needed to be authorised on the EU Register of Nutrition and Health Claims made on foods.
Here the advertiser had sought advice from the CAP Copy Advice team and had understood that the advert was likely to comply with the CAP code. They also relied on the fact that the word “boost” did not appear in the advert, the word “energy” was part of the product name, “Dextro Energy”, which was a registered trade mark. Apart from the product name, the text of the advert did not mention energy. The advertiser believed that the word “burst” in its context ("FEEL THE BURST - OF FLAVOUR") would be clearly understood to relate to flavour and not energy.
Any implied health message could only be a general, non-specific claim that the food provided a benefit for overall good health or health related well-being, which was allowed under the Regulation on nutrition and health claims, if accompanied by a specific health claim included in the Register. The product contained vitamin C in sufficient quantities to use the authorised health claim “Vitamin C can contribute to the reduction of tiredness and fatigue”, which was included at the bottom of the ad.
Notwithstanding that the advertiser had sought copy advice for the advert, and were also entitled to use the authorised health claim for a source of Vitamin C, the ASA upheld the complaint. The ASA emphasised that health claims can be made through the use of images and in the overall presentation of an advert as well as in text. Even though the product name (using the word "Energy") had been registered as a trade mark before the required date of 1 January 2005, the ASA took the view that the product name, in the context of other claims and imagery, constituted a health claim which inaccurately reworded or exaggerated an authorised health claim. The ASA considered that the advert implied that the product provided an immediate increase in energy levels such as to allow those who consumed the product better to face the challenges of day-to-day life.
This ruling is a reminder that the ASA can, and reasonably often does, uphold a complaint even after CAP copy advice has been sought. Nutrition and health claims is a complex area where particular care needs to be taken. Here, the advertiser also ran the risk of its brand being compromised by an adverse ruling which in part impacted on the brand name.
Imperial Tobacco Ltd – 13 February 2019
This complaint related to two outdoor poster adverts and a Facebook post for Rizla cigarette rolling papers. One poster showed two young people in jeans and trainers, each in large cardboard cut-outs so they were shown dressed as a security safe, standing in front of a wall with the word “SAFE” graffitied on it. The second showed them with smaller cardboard boxes like helmets over their heads with drawn-on facial expressions and the word “PROTECT” graffitied on the wall. On the right-hand side of both adverts, there was a pack shot of the rolling papers with the text “FOLD. TUCK. PROTECT” above the image. Further text below the image stated “ALL NEW PACKAGING + NEVER SETTLE”.
The post on Rizla UK’s Facebook page launched a competition, with an opportunity to win “an amazing pack of Rizla goodies” shown as Rizla branded products such as a flask, plectrum and badge, inviting people to like and comment on the page and to share it with a friend.
Four complaints were received challenging whether the first advert suggested that smoking was safe, whether both the poster adverts were likely to appeal to under-18s, and whether the Facebook post was likely to encourage people to start smoking and whether it was targeted appropriately.
The advertiser went into quite a lot of detail in its response, making clear that they took care to avoid association with or depiction of smoking in their adverts and that the advert was developed to show improvements to their packaging to existing adult Rizla users.
The reference to “Fold. Tuck. Protect” was to inform Rizla users about improvements made to their product packaging with the addition of a “tuck in” mechanism to prevent rolling papers from becoming creased or damaged and that Rizla papers were more likely to be kept physically safe inside the new packaging. They considered that the public awareness of the health risks associated with smoking meant that the advert was unlikely to suggest that smoking was safe. The ASA disagreed, and took the view that people would be likely to interpret the advert as suggesting that smoking with Rizla rolling papers was safe.
The advertiser said that the colourful imagery used in the two poster adverts was to mirror the colours of Rizla packaging and align with their brand identity and that real life models, rather than, say, animated characters, were used, with the depiction of a safe and a helmet to create a wry sense of humour to align with their target audience of “creative, outside-the-box” adult Rizla users. Similarly, the use of graffiti was also intended to target adult consumer groups who were urban, creative and expressive. That was reflected through their decision to place the campaign in the urban areas of Bristol and Liverpool in particular. The posters were all outside a 100m school exclusion zone.
However, the colourful imagery with a graffiti wall backdrop and people wearing cardboard cut-outs depicting either a security safe or a helmet, together with use of the term “safe” which the ASA understood to be a slang term commonly used by young people, all combined to associate the advert with youth culture and in the ASA’s opinion would resonate with and appeal to people under 18.
By contrast, the ASA did not uphold either of the complaints in relation to the Facebook post. The items which could be won in the promotion were not specifically linked to smoking other than through featuring the Rizla logo. The promotion also provided no incentive or instruction to smoke, so was unlikely to encourage people to start smoking or encourage existing smokers to increase their consumption. Moreover, the ASA understood that the Rizla Facebook page was age restricted so that only males and females who were registered on Facebook as aged 18 or over could view the content featured on their page and content from the page would not feature on newsfeeds of those under 18 if it was liked and shared. Rizla had also used other interest based targeting features on Facebook to further minimise the possibility of those under 18, including those who may have misreported their age, from viewing the post. The ASA was therefore satisfied that post was targeted appropriately.
Careful targeting of adverts can be very effective, and helped in relation to the third complaint, but is clearly much more difficult for outdoor poster adverts. Also, attempts to rely on the use of humour can often backfire, particularly where age is an important issue. Any use of “cool” music or other “cool” themes is likely to be found to appeal to young people.
Health and beauty
Estee Lauder Cosmetics Ltd t/a Clinique - 6 February 2019
Clinique’s website, www.clinique.co.uk, featured a web page for their “Fresh Pressed” range, including text stating “Fresh means power. Clinique Fresh Pressed harnesses the full power of pure, fresh Vitamin C to brighten, even, retexturize - and deliver remarkable de-aging results in just 7 days”, and an image of the Daily Booster product surrounded by a cloud of orange powder.
The complaint was on the basis that the claim “Fresh Pressed” was misleading as all the listed ingredients were chemically derived.
However, the ASA considered that consumers would not interpret the claim literally, but would understand the claim to mean that the product contained fresh vitamin C rather than any specific natural ingredient, and would not expect the product to have been “freshly pressed” from fruit. The ASA appear to have been satisfied with Clinique’s reported explanation that the “Fresh Pressed” name was a reference to the consumer being able to “press” fresh vitamin C products at home, by pressing the button on the Daily Booster Device and when the single-use cleanser packets with vitamin C were “pressed” into use between the palms of the hands, notwithstanding that the term “press” or “pressed” does not appear to be used in this way on the product’s website, save in relation to pressing the button to release the Vitamin C. The ASA also referred to additional information which was provided further down the web page about how the product worked. On this basis the complaint was not upheld.
There have been relatively few complaints in recent years about mainstream beauty brands, but this complaint was particularly important as it will have run the risk of impacting on Clinique’s whole Fresh Pressed brand, so this will have been an important outcome for Clinique. At the heart of the decision is the basic, but important, conclusion that consumers would not interpret the claim literally and will not have expected the product to contain freshly pressed natural ingredients, rather than by focusing on the use and meaning of the term “pressed”.
Shiseido UK Co Ltd t/a Bare Minerals – 20 February 2019
A complaint with regard to a video on demand (VOD) ad for Bare Minerals which featured shots of a number of models, in various poses although predominantly showing their head and shoulders, was on the basis that two of the models who were featured appeared to be unhealthily thin and that the advert was irresponsible.
Both ITV and the advertiser went to some lengths to emphasise the differences between this advert and those where the ASA had upheld complaints for irresponsible advertising. The ASA concluded that, although both models appeared to be slim and one model was shown wearing a spaghetti strap dress which showed clearly defined collarbones and angular shoulders, these scenes were very brief and neither the lighting nor the model’s pose accentuated these features. The ASA generally considered that both models appeared healthy and therefore the advert was not irresponsible.
The ASA has previously taken quite a strict (if not always consistent) line over the use of thin models in the past. The line between models being “slim” to appearing unhealthily slim is a very fine one indeed if the actual images are compared. Here the outcome might well have been different had a single image been used of one of the two models in question, rather than a video, and also had the video not featured all four models in swiftly changing shots and featuring more significantly the female actor Letitia Wright, who was wearing a suit that covered her arms and torso.
Temple Finance Ltd t/a PerfectHome.co.uk – 6 February 2019
A TV ad for a rent-to-own provider, PerfectHome, featured an animated cat singing the following lyrics from a song 'Perfect' by Fairground Attraction: "It's got to be perfect, it's got to be worth it. Too many people take second best, but I won't take anything less. It's got to be perfect" while walking around a house containing a number of high-value items such as an iPad, wireless headphones, an American-style fridge freezer, and a flat screen TV. In the last scene the cat said, "Shop now and pay weekly at perfecthome.co.uk".
The complaint was on the basis that the song and the focus on luxury goods promoted the purchase of items on high-interest credit in an irresponsible manner.
Even though the advertiser was able to establish that it was advertising the range of goods it stocked as a retailer, and sought to rely on the reference to “shop now pay weekly” at the end of the ad, a prominent RAPR, and the statement “subject to status” as being likely to be understood by viewers to mean that some form of credit would be required to purchase the items shown, the ASA upheld the complaint. Although the featured items were, to an extent, ‘core household goods’ and were not shown as branded, the ASA considered they would be seen by viewers as high-cost makes and models of those products that were at the luxury end of the market. The advertiser sought to rely on humour and that the song had been chosen to tie in with the brand name. However, the use and repetition of the word ‘perfect’ in the ad drew particular attention to the desirability of the luxury products and would suggest that viewers need not settle for functional or mid-range household goods and should instead buy more expensive luxury items using high-cost credit.
With such a brand name, and in a sensitive sector, care will always be needed for any advertising, particularly not to put the brand at risk. Relying on humour, particularly for sensitive sectors, including personal finance, is always risky and needs to be given careful consideration.
Klarna UK Ltd – 27 February 2019
This complaint related to a paid-for Instagram post, from a fashion blogger stating "... Love love love this dress by @finerylondon If you want a treat but pay day is a couple of weeks away you can now use @klarna.uk which gives you 14 days to pay for your new purchase! Winning ...". The issue was as to whether the advert was irresponsible, by trivialising using a payday loan to make non-essential purchases and encouraging irresponsible spending.
The ASA concluded that the advert was not, in the circumstances, irresponsible and that it was not inherently irresponsible to suggest that a non-essential purchase could be paid for on credit, provided that the product was promoted in a responsible and non-trivialised way. Here, the cost of the dress was not so high that it would not be possible to pay for out of the next month’s pay, and the advert was not encouraging an impulsive purchase. In reaching this conclusion, the ASA also took into account the nature of the deferred payment service. This enabled consumers to purchase items from a selection of retailers and pay for them either 14 or 30 days later, but was not a loan or credit card facility, because no interest or fees were payable. The product was therefore exempt from the Consumer Credit Act 1974 and associated regulations.
This advert reached the right balance in terms of promoting the taking out of a payday loan but not to such a level that it would encourage consumers to make extravagant and impulsive purchases.
The Hut.com Ltd t/a Zavvi - 13 February 2019
The website www.zavvi.co.uk advertised a promotion offering entrants the opportunity to win a trip to Disneyland Paris. The complainant, who had won the prize, but was then told they had responded too late, challenged whether the promotion breached the Code.
The terms of the promotion had stated that winners needed to confirm that they were eligible and able to accept the prize within 24 hours from when the notification email was sent and that if the winner failed to contact the promoter within the time period, they reserved the right to choose another winner at random. Nevertheless, the ASA considered that the requirement to respond within 24 hours was a significant condition which should have been prominently stated in the advert. On this basis, the ASA considered that participants had not been dealt with fairly and therefore the advert was in breach of the Code.