ASA Adjudications Snapshot – September 2008

United Kingdom

This article provides a selection of the most interesting ASA adjudications from September and a summary of some of the key issues considered in the adjudications. This month the ASA held advertisers to account over the use of disclaimers, anti-cellulite claims and advertisers claiming to be environmentally friendly, while delivering measured judgments in response to complaints of ads encouraging violence and drinking.

ALCOHOL

1. Scottish & Newcastle UK Ltd, 3 September 2008 (use of knives in a lager advert)

See also references to Anheuser-Busch Europe Ltd, 17 September 2008 (reference to alcoholic strength) and Cobra Beer Ltd, 24 September 2008 (use of cartoons in advertising aimed at adults)

HEALTH & COSMETICS

2. Novartis Consumer Health UK Ltd, 17 September 2008

3. Sisley UK Ltd, 24 September 2008 (substantiation for borderline cosmetic claims)

GREEN CLAIMS

4. ExxonMobil UK Ltd, 3 September 2008 (“environmentally friendly” claims)

See also reference to Lexus (GB) Ltd, 24 September 2008 (green comparative claims)

COMPARATIVE ADVERTISING

5. B&Q Plc, 10 September 2008 (comparison of like-for-like products)

6. ASDA Stores Ltd, 17 September 2008 (substantiation of pricing information)

DISCLAIMERS

7. Vodafone Ltd, 10 September 2008 (speed of spoken disclaimers)

8. The Carphone Warehouse Group Plc t/a/ TalkTalk Telecoms Ltd, 24 September 2008 (prominence of significant terms)

GAMING & PRIZE DRAWS

9. The Reader’s Digest Association Ltd, 3 September 2008 (content of prize draw mail shot)

10. Rational Entertainment Enterprises Ltd t/a Pokerstars.com, 24 September 2008 (poker claimed to enhance admirable qualities)

ALCOHOL

1. Scottish & Newcastle UK Ltd, 3 September 2008

A TV ad for Kronenbourg 1664 lager showed professional chefs in a kitchen using culinary knives to slice up a number of bubbles into smaller bubbles while the song “The Beat Goes On” by the band All Seeing I played. Chefs were shown slicing bubbles rapidly, using a small knife to pop bubbles and moving quickly towards the camera and bursting a bubble in mid-air. The end of the ad showed a close-up of bubbles in a pint of lager along with text stating: “SMALLER BUBBLES. SMOOTHER TASTE”.

Complaint/Decision

Several viewers challenged whether the ad encouraged or condoned violence, linked alcohol with aggressive or antisocial behaviour or linked drinking with an activity which was potentially dangerous after drinking.

The ASA challenged whether the ad was likely to appeal strongly to the under-18s.

In a careful decision that considered the context of the ad, the ASA concluded that none of the complaints should be upheld.

The ASA emphasised that chefs used knives legitimately, and that viewers were unlikely to think the ad showed knives being used as weapons: it did not encourage or condone violence.

The ad was also found to be unlikely to be perceived as linking drinking with a potentially dangerous activity because it did not show the chefs drinking alcohol in the kitchen or portray them as intoxicated.

On the final point, the ad was held unlikely to appeal strongly to under-18 year-olds because of the choice of song: the dance track was over 10 years old, and the song had not been made popular since, so it was unlikely that it would hold strong appeal for under 18-year olds. Moreover, the ASA did not consider the use of the bubbles would appeal strongly to children and under-18s. In addition, the chefs handled the knives professionally and were not shown playing with them or “acting in a juvenile manner”.

See also:

Anheuser-Busch Europe Ltd, 17 September 2008 Poster ads depicted bands where some of the musicians were using bottles of Budweiser as instruments. The complaint was that the ads presented the lager’s high alcohol content as a reason to buy the beer, and were therefore irresponsible. This was not upheld. The ASA noted that the CAP Code permitted advertisers to provide factual information about a drink’s alcoholic strength, and this, in its opinion, was what the posters did.

Cobra Beer Ltd, 24 September 2008 Poster ad depicted three cartoon characters in a bar, two of them holding bottles of Cobra beer, with copy: “Cobra. Now in pubs” and: “Beer in pubs? What genius thought of that?” The ad was accused of being irresponsible for using cartoon characters, which could appeal to children. In a decision in keeping with the Kronenbourg adjudication above, the ASA found the ad was not likely to appeal to children. The ASA accepted that the stylised drawing and sardonic text was similar to political/satirical cartoons, rather than children’s cartoons.


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HEALTH & COSMETICS

2. Novartis Consumer Health UK Ltd, 17 September 2008

A commercial for Savlon Advanced Healing Gel depicted a boy riding his bike down a hill and then falling off (off-camera). An adult was then shown applying Savlon to a cut on his knee. A voice-over said that the gel “creates optimal conditions to help speed up the healing of cuts and grazes from the moment it touches the skin; which could be a problem if your child likes showing off their wounds to impress their friends.”

The boy was then shown buying some fake plastic wounds in a joke shop and showing these off on his cheek, stomach and calves to other children.

Complaint/Decision

Eight people complained that the advert “glamorised wounds and could be seen to condone knife crime amongst the young” and two people complained it could encourage self-harming amongst children.

The ASA applied a common sense approach to the concerns about the depiction of violence. It did not uphold either complaint, considering that viewers were most likely to see the boy as using the fake wounds to have fun with his friends. The humorous tone and the commonplace event of a boy getting a small wound while playing would be, it said, “unlikely to be seen to glamorise wounds or knife crime or encourage children to self-harm”.

3. Sisley UK Ltd, 24 September 2008

A magazine advert claimed that a cellulite cream, ‘Celluli-Pro Slimming and Firming Concentrate’: “reduces fatty deposits… reduces the appearance of cellulite…diminishes the orange peel aspect…” was “slimming and firming,” had “draining properties,” contained “slimming active ingredients,” and worked by “stimulating energy consumption in the same way as exercise.”

Complaint/decision

The advertiser was challenged to substantiate all claims. In a detailed assessment, which highlights the rigour with which the ASA will examine borderline claims made for cosmetics, the ASA upheld all of the complaints.

Sisley submitted its substantiation for the claims made, including a confidential study on two of the cosmetic ingredients and an in-use clinical study.

After taking expert advice, the ASA considered that the in vitro studies did not establish the necessary level of proof for the claims made. It also concluded that the methodology of Sisley’s clinical study on product users was not robust enough to support the claim “reduces fatty deposits”. For example, the controls were untreated thighs, which failed to take account of a placebo effect, the effect of the massage used to apply the product, or the moisturising qualities of standard moisturisers.

The ASA found that the product could not reduce fat levels or weight more than might be achieved by regular massage. The ASA also found no evidence the cream had a more firming effect on the skin than a standard moisturiser, or to support the claim of reducing “the appearance of cellulite”.

The ASA considered that the claim about stimulating energy implied the cream could bring about a “permanent physiological change in the body”, i.e. a medical claim, but said Sisley had failed to prove this. It also found that subjective impressions of consumers were insufficient to support the other scientific claim, “draining properties”.

This is probably not a surprising decision in the light of previous adjudications, since the ASA has consistently taken a fairly rigorous approach to these sorts of claims. However, it will be interesting to see the impact of the guidelines recently agreed between the Cosmetic Toiletry and Perfumery Association, the ASA and Clearcast in relation to claims made for similar products in the future.


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GREEN CLAIMS

4. ExxonMobil UK Ltd, 3 September 2008

A TV ad showed three ExxonMobil employees saying: “I think one of the biggest challenges that the world is facing today is to develop all the energy we need in an environmentally friendly way. It’s going to be vital that we develop all sources of energy…. It’s going to be oil and gas, coal, nuclear, wind and solar… One of those examples is liquefied natural gas. Natural gas is one of the world’s cleanest fuels…”

Complaint/Decision

Four viewers challenged whether the claim, “Natural gas is one of the world’s cleanest fuels” misleadingly implied that liquefied natural gas was environmentally friendly.

The complaints were upheld. The ASA noted that ExxonMobil’s agency said this claim was intended to mean that natural gas damaged the environment less than other fossil fuels. However, the ASA judged viewers would see the claim as a comparison with the other energy sources listed, not fossil fuels alone.

The ASA also found that the ad’s statement of a need to “develop all the energy we need in an environmentally friendly way,” followed by a list of energy sources including liquefied natural gas, indicated this gas was developed in an environmentally friendly way or was environmentally friendly. The implications that natural gas was one of the cleanest sources of energy and was environmentally friendly were found to be misleading.

See also: Lexus (GB) Ltd, 24 September 2008 The advertiser made the claim that the Lexus RX 400h was: “PERFECT FOR TODAY’S CLIMATE. (AND TOMORROW’S) … Driving the world’s first luxury hybrid SUV makes environmental, and economic sense…” Small-print read: “CO2 emissions 192 g/km…”

The ASA upheld the complaint that the ad misleadingly implied the car caused no or little harm to the environment. The ASA said readers were likely to take the claims to mean the car caused no or little environmental harm and had low emissions when compared with all other cars, which was not substantiated.

These adjudications demonstrate the strict standards that the ASA will apply to unqualified green claims, even where direct claims are not being made. The Exxon ad did not directly claim that natural gas was “environmentally friendly” and the Lexus ad used a play on words to make a general claim. Advertisers should take this as a warning that they should not make similar claims – even where claims are implied – unless they can back them up.


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COMPARATIVE ADVERTISING

5. B&Q Plc, 10 September 2008

A press advert contained pictures of household products and their prices in B&Q compared to other shops. It stated: “If you find a product cheaper we’ll match the price and give you 10% off.” One of the products pictured was a light, accompanied by the text: “Jena 3 light round ceiling spotlight Brushed Chrome JOHN LEWIS PRICE £95 B&Q PRICE £41.98 B&Q SAVE YOU £53.02”

Complaint/decision

John Lewis Plc complained that the ad and the price comparison were misleading because its light was superior to B&Q’s ‘Jena’ light.

The complaint was upheld. The ASA considered that the combination of the price promise and price comparison implied that B&Q had compared the price of the ‘Jena’ light against the same, rather than merely a similar, product. The ASA inspected both lights and found there were material differences between them. Because B&Q had not compared like-for-like products, it found the ad to be misleading.

6. ASDA Stores Ltd, 17 September 2008

A press advert featured two arrows with the following words inside them: “Asda 2916 products cheaper” and “Tesco 962 products cheaper”. The ad also read: “Yep, we’ve done it again. The independent price checker says so. ASDA.” Smaller text read: “This week, independent price comparison site mySupermarket.co.uk checked prices for all 7564 same brand/size products on both Tesco and Asda websites – there’s no place like ASDA.”

A TV ad made similar claims but included the date prices were checked on.

Complaint/decision

Tesco complained, challenging whether the ads were misleading because:

1. many of the Tesco prices used by mySupermarket.co.uk were lower than the prices charged by Asda in stores or online; and

2. they suggested the figures were accurate for an entire week, when that was incorrect.

The ASA upheld the first complaint for both ads. Tesco provided it with comparison data compiled by another independent company. This compared prices by scanning shelf bar codes and showed that around 100 products cited in the ad as cheaper at Asda were found to be cheaper at Tesco, and around 50 products were priced the same at Tesco. As Asda had not provided till receipts or other “definitive proof” of the prices charged when products were bought in-store, it could not conclusively prove its claims.

The ASA upheld the second complaint in relation to the press ad. Again, Asda failed to show the pricing information used was accurate, and as the date the prices were checked was not made clear, the ad was found to imply the claim was correct for the whole period the ad appeared.

However, the second complaint was not upheld for the TV ad. Even though the voice-over began, “This week…” the ASA considered that the presence of the date prices were checked on meant viewers were likely to understand the comparison referred to a single day only.

These decisions show the importance of having clear and accurate substantiation to prove comparative claims, and that reliance on third party data may not be sufficient.


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DISCLAIMERS

7. Vodafone Ltd, 10 September 2008

A radio ad in the style of a weather forecast featured a male voice saying: “With Vodafone’s Endless Summer you can now get unlimited texts, calls, e-mail and mobile internet with our scorching new price plans, so you’ll never be burnt by our bill again.” This was followed at the end of the ad by a faster voice saying: “Subject to status, availability and connections to 18-month contract. Unlimited calls to landlines or Vodafone Mobiles only. Fair-use policy, terms and 60-minute call cap applies.”

Complaint/Decision

One listener complained that the second voice spoke too quickly and was unclear. This complaint was upheld. Although the voice had not been speeded-up post-production, and the CAP (Broadcast) Radio Advertising Standards Code did not specify how fast qualifications could be spoken, the ASA considered the qualifications were delivered too quickly to be clearly audible. As the clarifications of the “unlimited” offer were significant, the ad could therefore be misleading.

8. The Carphone Warehouse Group Plc t/a/ TalkTalk Telecoms Ltd, 24 September 2008

A TV ad stated: “At TalkTalk we believe broadband should be free. When you get your landline from us we give you broadband that’s free.” Text added: “Subject to availability and Fair Usage policy.”

Complaint/decision

This ad was accused of being misleading because it did not make clear that free broadband was not available in all parts of the UK. The ASA agreed: although it noted that free broadband was unavailable in some areas for reasons outside of TalkTalk’s control, the ad should have made the limited availability clearer.


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GAMING & PRIZE DRAWS

9. The Reader’s Digest Association Ltd, 3 September 2008

Reader’s Digest sent out a direct mailing to some of its existing customers regarding a prize draw. The mail was headed “***PERSONAL CORRESPONDENCE*** ENCLOSED FOR THE EYES OF XXXX ONLY”. It included the following text:

Please don’t tell anyone you received this letter from me – at least not yet. I’m breaking with standard procedure and bringing news that is in your favour. It’s a good idea to keep these documents private as only you can benefit from their contents. If [other people] read the documents I’ve enclosed today, they might become jealous as you, xxxx, are one of a specially selected group who have been automatically advanced directly to the £250,000 Winner Selection Stage…”

It continued in a similar manner, referring to the opportunity as an “exceptional upgrade”. The mailing was sent to a selection of Reader’s Digest customers who had been automatically entered into the draw, but other customers were able to enter the draw too by returning their prize draw numbers.

Complaint/Decision

The complainant challenged whether the mailing was irresponsible for exploiting the credulity of vulnerable people and discouraging them from discussing the ad with others. The ASA also challenged whether it implied that addressees had a better chance of winning a prize than they did.

Both challenges were upheld. The ASA considered that recipients were likely to be confused by phrases such as “PERSONAL CORRESPONDENCE” AND “Please don’t tell anyone you received this letter from me – at least not yet”, particularly as so many recipients were elderly. It pointed out that Trading Standards advised consumers to discuss unsolicited letters with friends or relatives before entering prize draws. Therefore, it found the ad had been irresponsible.

The ASA found the claim that an “exceptional upgrade” was being offered, as well as other text, wrongly implied that addressees were at an advantage, because in fact their chances of winning were the same as those of people who chose to enter.

The adjudication is interesting as it demonstrates the ASA’s involvement in issues which could fall within Trading Standards’ remit under the new Consumer Protection from Unfair Trading Regulations. It also demonstrates how the ASA will look carefully at the presentation and context of direct mail communications and will take into account the likely reaction of intended recipients.

10. Rational Entertainment Enterprises Ltd t/a Pokerstars.com, 24 September 2008

A poster for a poker website featured a photograph of poker champion Daniel Negreanu holding a hockey stick and text stating: “Poker is a sport of courage, conviction and confidence. Play for free at the world’s largest poker site.”

Complaint/decision

One person challenged whether the references to “courage, conviction and confidence” were irresponsible and exploited the susceptibilities of children, and whether it was misleading and appealing to young people to describe poker as a sport. The ASA challenged whether the ad’s wording linked poker to toughness and resilience and implied that gambling would enhance the qualities of courage, conviction and confidence.

The complainant’s challenges were not upheld: the ASA found that Mr Negreanu was not a well-known or obviously aspirational figure and neither he, the poster design, nor the three qualities described, were likely to appeal particularly to children. It also found it was not misleading to describe poker as a sport, and that this description would not appeal particularly to children anyway.

However, the ASA’s challenge was upheld: it found the ad implied that poker would enhance players’ “courage, conviction and confidence”. As these qualities demonstrated mental toughness and resilience and would be admired by the ad’s target audience of 21 to 44 year old men, the ad breached the Code.

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