ASA Adjudications Snapshot - September 2010

United Kingdom

HEALTH AND BEAUTY

1. Optical Express Ltd, 8 September 2010 (a comparative advertising claim that a company could produce “better results” than its competitors could not be substantiated)

2. Herbal-H.com, 22 September 2010 (a complaint against an advert on a social networking website was upheld as the advertiser did not produce sufficiently robust evidence to substantiate the claims in the advert)

3. SCA Hygiene Products UK Ltd (the ASA did not consider that a reference to another manufacturer’s product in an advert was an endorsement by that other manufacturer)

FOOD AND DRINK

4. Nandos Chickenland Ltd, 1 September 2010 (two adverts featuring over-the-top and absurd humour were acceptable, despite the ASA noting that some consumers would consider them in poor taste)

5. Antonio Federici, 15 September 2010 (notwithstanding the light-hearted nature of the advert, the ASA concluded that it was likely to cause offence for religious reasons)

6. GlaxoSmithKline UK Ltd, 22 September 2010 (the ASA investigated a television and video-on-demand advert for a caffeine drink, but concluded that the advertiser had not been irresponsible)

7. Nutricia Ltd, 22 September 2010 (advertisers must use statistics accurately so as to avoid misleading consumers)

8. Scottish Spirits Ltd, 15 September 2010 (the ASA considered Scotch Whisky’s registered geographical indication when deciding whether an advert was ambiguous)

OTHER

9. Reckitt Benckiser (UK) Ltd, 8 September 2010 (the ASA considered the evidence required to substantiate a claim that the use of a product could save consumers money)

10. Virgin Media Ltd, 15 September 2010 (the ASA considered the use of testimonials and claims in comparative advertising)

11. ASDA Stores Ltd, 29 September 2010 (the ASA examined the context of a light-hearted advert and concluded that it was unlikely to offend)

12. Tesco Stores Ltd, 15 September 2010 (to verify a comparison used in an advert, the advertiser had to provide all data, not only a sample of comparisons)

13. ASDA Stores Ltd, 22 September 2010 (the ASA considered comparative advertising and the requirement for advertisers to be clear as to the basis of comparison claims)


HEALTH AND BEAUTY

1. Optical Express Ltd, 8 September 2010

An email advertising laser eye surgery stated “Optical Express has more experience and provides better results than anyone else in Europe”.

Complaint/Decision

A competitor challenged whether the claim made in the advert could be substantiated.

The ASA noted that two of Optical Express’ competitors were older and that, on the basis of age, they could argue they were more experienced than Optical Express. However, Optical Express retained a greater number of ophthalmologists in Europe and therefore carried out more procedures than its competitors. Accordingly the ASA did not consider that the claim regarding the advertiser’s experience was likely to mislead.

In relation to the advertiser’s claim that it provided better results than its competitors, the ASA noted the advertiser’s argument that it performed more procedures (and therefore had more patients achieving 20/20 vision). However, it considered that this was a question of size rather than absolute result and that consumers were likely to interpret the claim in the advert as meaning that Optical Express would achieve a better result than its competitors for each individual consumer. The ASA did not consider that it had seen independent and comparable evidence to prove this and accordingly decided that Optical Express had not justified the claim. The complaint was therefore upheld.

This is an example of a very bold claim by an advertiser, which, in the ASA’s opinion, it was unable to substantiate. The ASA reminded the advertiser that in comparative advertising it should objectively compare relevant, verifiable and representative features of its product to that of its competitors, and should include a means for verifying any claims. Accordingly this adjudication provides useful guidance for advertisers using comparative advertising to market their products or services, and in particular where “number one” type claims such as this are made.

2. Herbal-H.com, 22 September 2010

An advert on a social networking site for hair loss treatment claimed that the product worked on 95% of men.

Complaint/Decision

The complainant challenged whether this claim could be substantiated. Without the need for any expert evidence, the ASA concluded that the test report provided by the advertiser did not provide adequate evidence to support the claim. The ASA noted that the report was brief and omitted details of the constituent parts of the product and an explanation of how the product worked. It also considered that there was little evidence to show that a scientific method had been followed; the only detail given by the advertiser was a subjective evaluation that 32 of 42 men surveyed grew new hair. Accordingly, the ASA upheld the complaint.

This adjudication is interesting because it serves as a reminder that paid for adverts on social networking sites are already subject to investigation by the ASA. From March 2011, the ASA’s remit will be extended generally to website content, including communications in non-paid for space under the control of advertisers, such as these social networking sites. Just what constitutes a “marketing communication” and “control” is not currently clear, and will be decided on a case-by-case basis. It also highlights to advertisers that they must ensure that they hold sufficiently robust evidence to substantiate claims made in adverts and submitting reports that omit material information will not suffice.

3. SCA Hygiene Products UK Ltd

This concerns three different adverts for feminine hygiene products, each of which offered consumers the chance to win Stella McCartney underwear. One of the adverts contained small print reading “Terms and conditions apply – see website for details”. The other two adverts specifically qualified the adverts with the text “This is not in association with Stella McCartney”.

Complaint/Decision

Stella McCartney Ltd challenged whether the adverts were denigratory and took unfair advantage of its brand, because the advertiser had associated its product with Stella McCartney Ltd without permission. It also challenged whether the adverts were in breach of the Code because they implied that Stella McCartney Ltd had endorsed the advertiser’s products.

The ASA noted that the adverts referred to the prize as “luxury” and considered that readers would understand that the prize was valuable and desirable. It concluded that a reference to another manufacturer’s product in an advert was, in the absence of critical statements, unlikely to be interpreted as discrediting that manufacturer. The ASA also noted that the Code did not require the advertiser to obtain Stella McCartney Ltd’s approval before referring to Stella McCartney in the advert, and the advert had not stated that Stella McCartney had approved or endorsed the promotion. The ASA considered that consumers would not interpret the reference in the advert as an endorsement and did not uphold any of the complaints.

This adjudication is interesting as an advertiser was allowed to refer to another manufacturer’s product to promote its own product, notwithstanding that the third party manufacturer did not authorise them to do so. However, the ASA particularly noted that in this instance it did not consider that consumers would interpret the advert as an endorsement of the advertiser’s product by the third party manufacturer. Nevertheless, advertisers should take particular care not to imply that another manufacturer has endorsed their products or services. In certain circumstances, where an advertiser seeks to take unfair advantage of another company’s trade mark or where there is an implied endorsement, there may be a civil claim available either for trade mark infringement or passing off.

FOOD AND DRINK

4. Nandos Chickenland Ltd, 1 September 2010

This concerned two internet adverts on the Spotify website. The first featured a man with a Portuguese accent who stated “… one day many years ago, I introduce my friend to the succulent flame grilled peri peri chicken. He was so happy that in return he introduce me to the village bicycle. Oh, all that summer I ride her and ride her, behind the cowsheds and in the fields. Sometimes my friend is there too and we both ride her and then we get off together. Then, when the winter comes, one night I leave her outside and she go rusty. But hey, her bell still works!…Who knows what a friend might do for you, when you introduce them to the spirit of Nando's?” The advert also featured the sound of a bicycle bell.

The other advert featured the same man stating “The spirit of Nando's. Hello fellow cyber space people enjoying the Spotify. Do any of you have invites left to send to friends? Well, if you introduce a friend to Spotify, maybe they will write you a thank you card, or make you a playlist, or give you a lift somewhere. But if you introduce a friend to succulent flame grilled peri peri chicken, oh well, maybe they will write you an epic love poem, or put you in their will, or let you borrow their girlfriend! Who knows what a friend might do for you, when you introduce them to the spirit of Nando's?

Complaint/Decision

The ASA received four complaints challenging whether the adverts were offensive, sexist and derogatory to women.

The ASA considered that listeners would understand that the reference in the first advert to a bicycle was an innuendo and that the humour was derived from the narrator’s lack of knowledge of this. Whilst the ASA acknowledged that some listeners might find the advert in poor taste, it concluded that the innuendo was not sexually explicit and was not used in a sexist or derogatory way. In relation to the second advert, the ASA considered that listeners would find the narration comical, over the top and absurd.

The ASA specifically noted that both of the adverts were targeted at adults and considered that both were intended to be light-hearted and humorous. The ASA did not uphold the complaints.

This decision provides an example of an adjudication in which the ASA specifically noted the careful and appropriate targeting of the advert. On the issue of offensiveness, targeting of adverts is always key. Although the ASA acknowledged that some consumers would find the adverts in poor taste, it nevertheless did not consider them to be offensive due to the over-the-top humour used by the advertisers.

5. Antonio Federici, 15 September 2010

A magazine advert for ice cream featured a heavily pregnant woman dressed as a nun. The text stated “Immaculately Conceived… ICE CREAM IS OUR RELIGION”.

Complaint/Decision

The ASA received ten complaints that the advert was offensive to Christians. The ASA upheld these and considered that the use of an image of a nun pregnant through immaculate conception was likely to be seen as a mockery of religious beliefs, and was likely to cause serious offence.

Use of religion in adverts is always a sensitive area and liable to attract complaints for offensiveness. This adjudication serves as a reminder that advertisers must take care to avoid causing offence through the portrayal of religion in adverts. It provides an example of a complaint upheld by the ASA, notwithstanding that the advert was intended to be light-hearted.

6. GlaxoSmithKline UK Ltd, 22 September 2010

This advert promoting a caffeine drink was shown on television and on video-on-demand (VOD) services. The advert featured a man driving along a dark road. A deer ran across the road and, following an animated section of the advert showing the cognitive effect of caffeine on the driver, the car swerved to avoid the deer. The voice-over claimed “…proven to boost mental performance…” and “…sharpen up in a shot…”.

Complaint/Decision

The ASA received 86 complaints (5 of which were from viewers of VOD services) that the advert was misleading and irresponsible, on the basis that it implied that the product could improve reactions and help avoid accidents.

The ASA did not uphold these complaints. It noted that the advertiser had intended to show that a driver who was alert and focused was in the best position to react to unexpected circumstances. It also noted that the advertiser had not sought to show that the product was designed solely to improve reactions. The ASA referred to the Department for Transport advice submitted by the advertiser that showed that a caffeine drink was a useful short-term solution to driver tiredness. Accordingly, the ASA did not consider that promoting the product in the context of night time driving was irresponsible. Further, the ASA concluded that the advert did not imply that the product would improve reaction times; instead it considered that the advert implied that the product could improve alertness.

This advert serves as a reminder that VOD adverts will also be examined by the ASA. Indeed, a new appendix has been added to the CAP Code to reflect new statutory requirements in relation to VOD services. Notwithstanding the number of complaints in relation to the advert, the ASA accepted that the advertiser had not been irresponsible.

7. Nutricia Ltd, 22 September 2010

The voice-over in a television advert for follow-on milk stated “did you know 8 out of 10 toddlers aren’t getting enough iron?” On-screen text stated “Recommended daily intake of iron = 6.9mg…

Complaint/Decision

Three complainants challenged whether the claim that “8 out of 10 toddlers aren’t getting enough iron” could be substantiated.

The ASA considered that the inclusion in the advert of the on-screen text with the headline claim implied that 6.9mg of iron was the daily amount required for toddlers in order to remain healthy. The ASA took expert advice and understood that 6.9mg of iron was not, in fact, the recommended daily intake, but instead was the amount of iron required to meet the needs of 97.5% of the entire population of children aged one to three years. By comparison, 5.3mg of iron per day would be suitable for 50% of toddlers. There was no recommended daily intake of iron for toddlers, although for food labelling purposes 6mg per day was recommended. The expert also advised that the study relied upon examined the diet itself, not the absorption of iron, and therefore conclusions could not be reached that participants were not getting enough iron. On this basis, the ASA concluded that the claim in the advert was likely to mislead.

This decision serves as a reminder to advertisers that they must take care with specific claims such as this, which are apparently based on scientific evidence. Advertisers must present statistics accurately, in the correct context, and including any qualifications so as not to mislead consumers. They should also always take care when using terms such as “recommended daily intake” if this cannot be substantiated.

8. Scottish Spirits Ltd, 15 September 2010


This adjudication concerned an advert in a trade magazine and an internet advert for Scottish Spirits. Both adverts showed a coat of arms and three bottles of whisky, one of which was labelled “Scottish Spirit”. The trade magazine advert showed the advertiser’s website as www.scottishspirits.com.

Complaint/Decision

A competitor complained that the adverts were misleading, as they suggested that the advertiser was a Scottish company selling Scotch Whisky.

The ASA noted that the adverts were no longer being used. The ASA accepted that the adverts contained no explicit claims that the whisky was Scotch Whisky. However, it considered that the company’s name and website address, and the images used (which were typical of those used by Scotch Whisky brands), could cause ambiguity as to whether Scottish Spirits was a Scottish company producing Scotch Whisky.

The ASA also noted that the Scotch Whisky Regulations 2009 prohibited the labelling, selling, advertising or promotion of drinks in ways that would be likely to confuse consumers as to whether the product was Scotch Whisky. The ASA acknowledged that Scotch Whisky has geographical indication protection; the Spirit Drinks Regulations 2008 prohibit any practice that is liable to mislead the consumer into thinking that a product is a product for which a geographical indication is registered unless it complies with the applicable technical requirements.

The ASA concluded that the adverts created ambiguity over whether Scottish Spirits were a Scottish company and whether their product was Scotch Whisky; the complaint was upheld.

This adjudication, though not surprising, is interesting because the ASA considered the appearance of the bottles and images, in addition to the company name, when reaching its conclusions. In this instance the fact that Scotch Whisky has the geographical indication protection mentioned above helped make the position even more clear.

OTHER

9. Reckitt Benckiser (UK) Ltd, 8 September 2010

A television advert for a water-softener showed two women at supermarket tills purchasing unbranded water-softeners. The prices shown on the tills read £484.78 and £638 respectively. One woman commented “Well there’s a new washing machine and not only that there’s the water damage and the breakdown costs”. The voice over stated “You’re better off using Calgon in every wash…

Complaint/Decision

The ASA received two complaints that the advert was misleading. The complainants did not believe that consumers would save money by buying Calgon over the course of the lifetime of a washing machine.

The ASA upheld this challenge. It noted the potential benefits of using a water-softener in a hard water area, but considered that the claim implied that all consumers would save money by using the product. In order to substantiate this claim, the ASA required evidence in the form of comparative testing of washing machines used with and without the product. It concluded that it had not seen appropriate evidence that consumers would save £600 or more in washing machine breakdown and repair costs and accordingly did not consider that the advertiser had been able to substantiate the claim.

This adjudication is interesting because it provides an indication of strong evidence required by the ASA to substantiate advertisers’ claims that consumers will save money on one product by purchasing another.

10. Virgin Media Ltd, 15 September 2010

A direct mailing entitled “Why Virgin TV is better than Sky TV by ex-Sky customers” included a testimonial regarding Sky’s picture quality and a testimonial favourably comparing Virgin’s customer service to that of Sky. The advert also featured claims including “We'll set you up for free, while Sky charge their existing customers around £60" and "Why pay extra for HD channels? Unlike Sky who charge £10 extra a month (that's £120 a year) to access their HD channels, with us you'll get amazing HD with no extra monthly fee.

Complaint/Decision

Sky complained that the testimonials were misleading and denigratory. It also complained that Virgin were comparing their special offer set-up charge against Sky’s standard charge, and that the claim regarding HD channels was misleading because Virgin offered fewer HD channels.

In respect of the testimonials, the ASA considered that consumers would believe these to be representative of the average Sky customer experience. It concluded that the title of the mailing alongside the testimonials went beyond a comparison between Virgin and Sky’s services. Accordingly the ASA upheld Sky’s complaint, and considered that the comments were denigratory and likely to mislead.

The ASA acknowledged that when the advert appeared Sky was also offering its existing customers free-set-up and therefore concluded that Virgin’s claims in this regard were misleading.

In respect of the claim regarding HD channels, the ASA considered that the advert would have to identify the number of HD channels available through the compared packages in order to compare the services fairly. Although the advert showed symbols for the various HD channels, it did not state the number of channels offered. It was therefore not clear that Virgin’s basic package offered consumers 10 channels, compared to Sky’s basic package which offered 18. The ASA considered that readers would interpret the claim made by Virgin to mean that they would obtain the same number of channels on Virgin’s basic package as Sky’s and, as this was not true, the ASA upheld Sky’s complaint.

This adjudication provides useful guidance for advertisers who use comparative advertising to market their products. It demonstrates that comparisons must be made fairly between like goods or services, and that consumers should be notified of any differentiating factors. It also highlights that advertisers must take care when using testimonials not to give a misleading impression and must take into account any special offers when creating comparative advertising.

11. ASDA Stores Ltd, 29 September 2010

An online advert for Asda opticians promoted their World Cup offer, pursuant to which Uruguayans would receive a free eye test. The advert stated “…Like everyone in England, we couldn't believe our eyes when the Uruguayan referee and linesman failed to recognise Frank Lampard's equalising goal against Germany. We're responding by offering all Uruguayans a free eye test to avoid anything like this happeneing [sic] again.”

Complaint/Decision

A British-Uruguayan complained that the advert was offensive. However, the ASA considered that the promotion was light-hearted and humorous, and that the advertiser had intended to exploit the controversy arising out of the World Cup. It acknowledged that the advert might be seen as in poor taste by some, but concluded that it was unlikely to cause serious or widespread offence; the ASA did not uphold the complaint.

This decision provides an example of the ASA looking at context when considering consumers’ likely interpretation of an advert . In this instance, the ASA considered that most consumers would regard the advert as football banter. Again, this adjudication is an example of the ASA accepting that an advert was intended to be light-hearted, although some might find it distasteful.

12. Tesco Stores Ltd, 15 September 2010

A TV advert for Tesco included the claim “when we compared prices with Asda’s on Saturday the 30th of January, shopping was cheaper for over 1.1 million Tesco customers. Tesco. Every little helps”. Tesco baskets were then shown alongside Asda baskets with the statement “1,150,000 cheaper” and “940,000 cheaper”. The advert included Tesco’s address for verification purposes.

Complaint/Decision

Asda challenged the advert on the grounds that Tesco did not offer an appropriate means of verification for its comparison of shopping baskets.

When Asda contacted Tesco for its verification data, Tesco provided it with a list of 380 randomly selected baskets, as well as information as to the methods Tesco had used. In its response to the ASA, Tesco stated that it believed that 380 baskets was a statistically significant selection. It quoted the European Court of Justice case Lidl v Colruyt, which indicated that a comparison should be verifiable; the decision did not state that all data should be provided.

Nevertheless, the ASA upheld the complaint; it considered that, on request, Tesco should have disclosed the full set of data for all of the baskets analysed. As only a sample of baskets had been disclosed, the ASA concluded that the comparison in the advert was not verifiable.

This adjudication in the ongoing battle between Tesco and Asda highlights that advertisers may need to provide full data to prove claims made, notwithstanding that this might comprise a large amount of information; a sample of data may not suffice.

13. ASDA Stores Ltd, 22 September 2010

A press advert for Asda entitled “The big Asda Rollback” featured the claim “Lower prices on everything you buy, week in week out…” . The advert also featured the words “Over 930 prices lowered on grocery essentials - Over 200 prices lowered on bakery - Over 180 prices lowered on frozen essentials - Over 330 prices lowered on fridge fillers - Over 60 prices lowered on health and beauty - Over 160 prices lowered on household essentials - Over 130 prices lowered on baby essentials …”.

On the other side of the page, the heading stated "Lower prices than any other supermarket +". The cross sign was linked to footnote text which stated “Comparison made against Tesco, Sainsbury's and Morrisons only. Asda, Tesco and Sainsbury's prices checked on 12th January 2010... Asda and Morrisons' prices checked independently on 11th January 2010…” Text inside arrows underneath the main heading stated "ASDA 4483 products cheaper than Sainsbury's; ASDA 4834 products cheaper than Tesco and ASDA 4259 products cheaper than Morrisons”.

Complaint/Decision

Tesco challenged the advert on three grounds. First, it argued that the claim “Lower prices on everything you buy, week in week out” was ambiguous because it did not make clear to consumers whether Asda was comparing prices against its own previous prices, or against other supermarket’s prices. Secondly, Tesco claimed that the price checks it had made did not show that Asda had made the reductions in the various product categories that the advert claimed. Accordingly it believed that the claim regarding the product reductions was misleading and could not be substantiated. Lastly, Tesco challenged whether “Lower prices than any other supermarket” was misleading on the basis that Asda had only compared its prices to one segment of the supermarket sector.

The ASA upheld all of the complaints. It noted that Asda believed that its existing customers would understand “Rollback” to refer to a price reduction as against Asda’s previous prices. However, the ASA considered that the advert was also targeted at new customers. The ASA noted that the Rollback title ran across both the part of the advert that compared Asda prices to those of other supermarkets, and the part that compared prices to Asda’s previous prices. The ASA concluded that this was misleading, as it could be misinterpreted as referring to a comparison with competitors’ prices.

In respect of Tesco’s second complaint, the ASA noted the words “week in week out” and also the words “This week’s independently checked results”, which also appeared. It considered that this implied the price reductions had been calculated in the preceding week. However, Asda had provided data showing the appropriate reductions over the preceding three weeks. As the advert had not explained this, the ASA concluded that it was misleading.

In respect of Tesco’s final challenge, the ASA concluded that the claim “lower prices than any other supermarket” was absolute, rather than a comparison only against the supermarkets named in the qualifying small print. It considered that the information in the arrows contradicted, rather than clarified the claim. Accordingly, the ASA considered that this claim was misleading; the comparisons only related to certain products at specific supermarkets.

This adjudication serves as a reminder that advertisers must suitably qualify any comparison data, and must make clear against which prices any savings are calculated so as to avoid misleading consumers. Advertisers should ensure that any small print clarifies rather than contradicts the main headline claim.