ASA Adjudications Snapshot – December 2010

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

This month the ASA considered a number of themes in its adjudications, including the use of studies to substantiate claims. In two of the decisions outlined below the ASA did not consider that it was sufficient for advertisers to rely upon unpublished studies carried out on a small numbers of participants. The ASA has also indicated that it may require evidence of ongoing or long-lasting product performance to substantiate efficacy claims.

HEALTH AND BEAUTY

1. Biomedical Laboratories, 1 December 2010 (one unpublished study of 22 participants was not sufficient to substantiate the advertiser’s robust efficacy claims)

2. Chefaro UK Ltd, 8 December 2010 (the ASA considered that a “100% effective” claim was a top parity, as opposed to a superiority claim).

COMPUTERS AND TELECOMMUNICATIONS

3. DSG Retail LTD t/a PC World, 1 December 2010 (in the overall context of the advert a female character choosing a pink product did not reinforce a negative gender stereotype)

MOTORING

4. Beetles UK Ltd t/a Danbury MotorCaravans, 8 December 2010 (the advertiser did not hold the required permissions to use a third party’s logo and therefore misleadingly implied that its product was endorsed by the third party)

5. Peugeot Motor Company plc, 22 December 2010 (the ASA was concerned that elements of a package were being described as “free” when it had not seen evidence that consumers could opt to decline the “free element” whilst paying the same overall package price)

HOUSEHOLD

6. Dean House plc t/a Betta Living, 8 December 2010 (the ASA considered the claim “Hurry Spring Sale Now On” implied that the sale was due to end imminently)

7. BSH Home Appliances Ltd t/a Bosch, 8 December 2010 (at the time at which the advert is published advertisers should hold documentary evidence to substantiate claims)

OTHER

8. Argos Ltd, 1 December 2010 (relevant qualifications to claims must be highlighted; absolute claims should not be made if these are likely to mislead consumers)

9. Halewood International Ltd, 1 December 2010 (an advert containing “mild” sexual innuendos was acceptable as the innuendos were unlikely to be understood by young children)

10. Molson Coors Brewing Company (UK) Ltd, 8 December 2010 (“new” claim related to the advertiser’s innovative product, rather than new technology in the industry as a whole)

11. Reebok International Ltd, 1 December 2010 (one study of a small sample of participants which did not consider the long-term consequences of the use of the product did not suffice to prove absolute efficacy claims)

12. Airline Seat Company Ltd t/a/ Canadian Affair, 1 December 2010 (10% of seats were available at the advertised price, which the ASA considered was sufficient availability)

13. Dalton Group Ltd, 22 December 2010 (the ASA upheld complaints that imagery in an advert was demeaning to women, as they bore no relevance to the advertised service)

14. UK Loan Star.NET, 1 December 2010 (part of the advertiser’s URL misleadingly implied endorsement by a third party)

NON-COMMERCIAL

15. The Smile Train UK, 8 December 2010 (the ASA considered the use of phrases “can help” and “could also help” and considered the substantiation of claims which could be interpreted in many ways by consumers)

MAIN ARTICLE

HEALTH AND BEAUTY

1. Biomedical Laboratories, 1 December 2010

A leaflet promoting an underwear garment claimed to reduce wearers’ cellulite by increasing circulation and breaking down fatty deposits. The leaflet made a number of efficacy claims including that the garment could break down cellulite, improve circulation, improve lymphatic drainage, and reduce the circumference of body parts in the long term. It included testimonials from wearers who claimed that they had lost between one and two inches from various body parts.

Complaint/Decision

One complainant believed that the efficacy claims in the advert could not be substantiated and therefore were misleading. The complainant also challenged whether the references to body sizes in the advert implied that the garment could help users lose weight.

The ASA upheld the complaints. It noted that the advertiser had provided clinical trial evidence consisting of one unpublished study of 22 participants. The ASA did not consider that one such study, together with “anecdotal evidence” in a newspaper article was sufficient to prove strong efficacy claims. Further, the participants did not report on the long-term effect of wearing the garments. The ASA considered that a robust body of evidence was required to substantiate the efficacy claims and concluded that the advertiser had not provided such evidence. The ASA also considered that the wording in the leaflet “… helps remodel your figure… without the stress of dieting” implied that the product would achieve the same outcome as a diet and that this, together with the references to body parts in the testimonials, implied that the product could cause weight reduction.

This adjudication serves as a reminder that advertisers must hold robust evidence to substantiate efficacy claims. In this case the ASA did not consider that one unpublished study of 22 participants which did not consider the long-term effects of wearing the product was sufficient; advertisers should bear in mind that studies and trials should comprise of an appropriate number of participants, and should also ensure that their methodology is appropriate to demonstrate the claims being made.

2. Chefaro UK Ltd, 8 December 2010

A television advert for a head lice treatment showed a mother spraying head lice treatment on her daughter’s head. The advert contained claims such as “unbeatable treatment for headlice” and “Lyclear is guaranteed to remove 100% of headlice and eggs”.

Complaint/Decision

A competitor challenged the advert on three grounds; first, whether the claim “unbeatable treatment for headlice” could be substantiated; secondly, whether the claim “Lyclear is guaranteed to remove 100% of headlice and eggs” was misleading because it understood that a comb would be required to achieve the results claimed; and thirdly, whether the advert was misleading because it did not distinguish between the advertised product and other products made by the advertiser.

The ASA did not uphold any of the complaints. In respect of the “unbeatable” claim, the ASA considered that this was a top parity claim, rather than a superiority claim (in line with Clearcast’s opinion). The ASA decided that the claim related to the effectiveness of the treatment only, rather than the ease of use or the time required. As expert advice indicated that the treatment was, in fact, 100% effective (and nothing could be more effective than 100%), the ASA did not consider that the advert was misleading in this regard.

In respect of the second claim, the ASA considered that the advert’s purpose was to promote the properties of the treatment, rather than the process of the treatment. Accordingly, it considered that it was reasonable for the advertiser to focus on how the treatment worked in the advert, rather than indicating all of the elements of the treatment. The ASA considered that most viewers would be aware that a comb was required for headlice treatment and therefore did not conclude that the advert was misleading.

In respect of the final complaint, the shot in the advert featured only the advertised product, rather than other products from the advertiser’s range. Accordingly, the ASA concluded that it was clear to which product the advert related and that this was unlikely to mislead.

This advert provides guidance relating to “unbeatable” claims and as to the fact that these will generally be treated as “top parity” claims, rather than superiority claims. Here the advertiser was able to show it had expert evidence to support the product’s 100% effectiveness. Nevertheless, advertisers must remain cautious when making claims that could be construed as superiority claims, and must ensure that they hold relevant, robust evidence to substantiate these. This decision is also interesting because the ASA allowed the advertiser to refer to only a partial sequence of the treatment, inferring that consumers would be aware of the need for additional equipment.

COMPUTERS AND TELECOMMUNICATIONS

3. DSG Retail LTD t/a PC World, 1 December 2010

A television advert showed a pile of textbooks and a standard sized laptop. A male voice-over stated "I'm going back to uni and I need a powerful laptop for work and play… It’s powered by vision technology from AMD plus with a 4 gig memory and a 500 gig hard drive… I'm powering through the work” Three Sony netbooks were then shown with an emphasis on the pink version of the product. The voice-over continued "And when my girlfriend wants to go online this Sony netbook comes in really handy... Our world is graduating with honours ..." The advert then showed one black and one pick mortar board and two academic scrolls, one tied with black ribbon and the other with pink ribbon.

Complaint/Decision

The advert attracted thirteen complaints. The complainants challenged whether the advert was offensive to women because it implied that women did not need a powerful laptop for work and only required a small pink netbook. The complainants believed that in portraying this message, the advert reinforces negative gender stereotypes.

Both PC World and Clearcast submitted responses to the ASA. PC World indicated that the complainants were assuming that the woman only used a netbook, however, it considered that usually additional technology (such as a laptop or desktop PC) would be purchased for academic or professional needs. PC World did not consider that the advert implied that pink products were only for use by women, although their experience indicated that women had a “greater propensity than men to purchase and/or use pink technology products”. Clearcast believed that the advert made it clear both the man and his girlfriend were students.

The ASA did not uphold the complaints and noted the responses submitted by both Clearcast and PC World. It acknowledged that some viewers might find the advert offensive to women, however, it considered that the girlfriend’s choice of a pink product was featured in the context of the pink version of the product being exclusive to DSG Retail stores. The ASA considered that the line “our world is graduating with honours” made it clear that both characters were students and academic equals. It concluded that the advert “did not go as far as to reinforce a negative gender stereotype” and accordingly was unlikely to cause serious or widespread offence.

This adjudication follows a number of recent decisions relating to stereotyping in adverts (see, for example, the adjudication relating to Invicta Gas Ltd in November 2010). It serves as a reminder to advertisers that they should be sensitive to existing or outdated stereotypes, so as to avoid causing offence. Although the ASA noted the female character’s propensity towards a pink product, the advertiser in this instance had made sufficient references to the two characters being academic equals to avoid alluding to any negative stereotype.

MOTORING

4. Beetles UK Ltd t/a Danbury MotorCaravan, 8 December 2010

A magazine advert featured converted Volkswagen camper vans and showed a VW logo at the bottom.

Complaint/Decision

One complainant challenged whether the use of the VW logo was misleading because the advertiser was not endorsed by Volkswagen.
The ASA upheld the complaint. It consulted Volkswagen, who indicated that their logo should only be used by authorised companies; the advertiser was not an authorised company and had a standard fleet agreement with Volkswagen which specifically excluded the right to use Volkswagen trademarks. However, the ASA understood that the advertiser had emailed Volkswagen in 2008 to request an electronic copy of the VW logo and had been provided with the same. Volkswagen could not confirm why the logo was provided. Nevertheless, the ASA considered that the advert implied that Volkswagen endorsed the advertiser when this was not, in fact, the case. Accordingly the ASA concluded that the advert was misleading.

Advertisers must ensure that they hold all of the necessary permissions to use third parties’ intellectual property, so as to avoid implying that their products or services are endorsed by well-known reputable companies if this is not the case. If the necessary permissions are not held, advertisers also risk legal challenges being brought by rights-holders in the civil courts.

5. Peugeot Motor Company plc, 22 December 2010

A television advert for cars featured a voiceover stating “Peugeot have introduced a revolutionary new package that includes three years’ free breakdown cover, three years’ road tax, three years’ free insurance… and three years’ warranty and servicing… all included in one simple monthly amount…. Just add fuel”. Text on screen indicated that terms and conditions applied to the offer.

Complaint/Decision

The advert attracted three complaints, the first of which was that the advert as a whole, and in particular the claim “just add fuel”, was misleading because it did not make the significant conditions of the offer clear. One complainant also challenged whether the breakdown cover, road tax, insurance, warranty and servicing were misleadingly described as “free”, because the complainant understood that these were included in the price of the package. Finally, the ASA received a complaint that the advert was misleading because it did not make it clear that the package was a rental agreement.

The ASA did not uphold the first complaint. It noted that wear and tear was excluded from the package and that customers could choose from package options that included extra mileage. However, the advert did not contain suggest a price for the package and the ASA considered that customers would not assume that they would receive a package tailored to their mileage requirements for the basic price. The ASA considered that consumers were likely to understand that the price would vary depending on their required mileage.

The ASA upheld the second and third complaints. Whilst the ASA noted that only the breakdown cover and insurance elements of the package were described as “free”, the cost of the breakdown cover was actually included in the package price. In respect of the insurance cover, the advertiser paid the premium without passing the cost on to consumers. However, because the product was new, no evidence had been submitted as to what was usually included in the package (i.e. evidence that the insurance cover was an additional free element) or that consumers could pay the same regardless of whether they opted to receive the insurance cover. As a result of these omissions and the inclusion of the breakdown cover in the package price, the ASA concluded that the advert was misleading.

Furthermore, although the advert referred to consumers “getting” a car, rather than “buying” one, it was not clear from the advert that the package was limited to rental or hire purchase arrangements. Such arrangements meant that customers could not own the car until the package price was paid off; they could be asked to return the car if payments were not made, and could not sell it. The ASA considered that the use of the phrase “getting a new car” along with the phrase “a revolutionary new package” could be interpreted to mean that consumers would receive a new car. The fact that the package was a hire purchase arrangement was a significant condition that was not made sufficiently clear and accordingly the ASA concluded that the advert was misleading.

This decision follows the recently publication of the OFTs guidance on pricing principles, which includes information for advertisers making “free” claims. Advertisers must take care to comply with the CAP and BCAP Codes when describing products as free, and in doing so should consult the CAP CopyAdvice guidance in this regard. In this case the ASA was particularly concerned that it had not seen evidence that consumers could opt out of receiving the free insurance cover and still pay the same overall package price.

HOUSEHOLD

6. Dean House plc t/a/ Betta Living, 8 December 2010

An online advert stated “Hurry Spring Sale Now On, save 60% direct from our factory… Every sale bedroom is reduced by a massive 60%...”

Complaint/Decision

One complainant challenged whether the 60% discount was genuine. In addition, the ASA challenged whether the advert breached the Code because it did not include a closing date.

The ASA considered that “Every sale bedroom is reduced by a massive 60%” would be interpreted as customers receiving a saving of 60% against the price at which the bedrooms had been offered immediately prior to the sale period. However, the ASA noted that this was not always the case; the 60% discount was, in some cases, not against the price at which the products had been offered in the three months prior to the sale period, but against a different, higher price. The advertiser had also not provided the ASA with evidence that the ranges in the Spring Sale had ever been sold at list price. Accordingly the ASA did not consider that the 60% claim was a genuine discount against the price at which the products were generally sold and upheld the complaint.

The ASA also upheld its own challenge against the advert. Although in the penultimate week of the sale the advertiser made it clear that the sale “must end soon” and in the final week it was advertised that the sale “must end Sunday at 4pm”, the ASA considered that the claim “Hurry Spring Sale Now On” implied that the sale would be ending imminently. This claim might therefore make consumers take a purchasing decision that they otherwise might not have; this is a factor that is assessed when considering whether a practice is misleading under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008. Here, the sale ran through until early September and, because the sale period ran for such a long time, the ASA somewhat surprisingly did not consider that it was necessary to state a closing date at the outset. However, the implication that the sale would end imminently was considered misleading by the ASA.

This adjudication, following one of the two Dreams plc adjudications in November 2010 and the OFT’s study of pricing practices reminds advertisers that they must be careful not to mislead consumers with the use of time-limited offers. Although in this case the ASA decided that the advertiser did not have to initially advertise a closing date, the advertiser was not permitted to imply that the sale was to end imminently if this was not the case; advertisers must ensure transparency in this regard, so as to avoid misleading consumers.

Further, in order to ensure compliance with the CAP and BCAP Codes, it is important that advertisers hold evidence to substantiate genuine discounts or savings.

7. BSH Home Appliances Ltd t/a Bosch, 8 December 2010

A catalogue for vacuum cleaners included one model called the “PRO ENERGY” and contained claims including “100% performance with 50% less energy” and “50% energy saving with no loss of performance”. The text continued “…Features 50% energy saving* compressor motor ...”. The asterisks in the advert were linked to small print that stated "*1200W with performance of similar 2400W cleaner".

Complaint/Decision

A competitor challenged whether the advert was misleading because the claims 100% performance with 50% less energy”, “50% energy saving with no loss of performance” and "*1200W with performance of similar 2400W cleaner” could not be substantiated.

The ASA noted the testing submitted by the advertiser, which seemed to support the relevant claims. Some of the testing was conducted after the catalogue appeared and therefore was not accepted by the ASA. However, when requested to do so, the advertiser was able to provide additional test results from before the publication of the catalogue, which appeared also to substantiate the claims made.

The ASA reviewed the test results submitted by the advertiser and determined that the word “performance” in the advert would be interpreted to mean dust pick-up performance. However the ASA noted that the tests carried out by the advertiser used a vacuum cleaner with an empty bag, and consequently did not reflect conditions of normal use. The ASA considered that the advertiser had tested only the initial performance of the product, rather than its ongoing performance, and that the advert should have made this qualification clear. Although the advertiser later submitted test results to demonstrate the ongoing performance of the machine, such further tests were carried out after the catalogue was published. In addition, these further tests were not carried out in accordance with the requisite standard of testing (IEC Standard 60312). The ASA upheld the challenge as a result of both the issues with the advertiser’s testing, and contradictory test results submitted by the complainants (such tests having been carried out to the required standards).

Advertisers are reminded that they must hold documentary evidence to substantiate the claims in their adverts at the time at which they are published; obtaining evidence after publication will not suffice. As with all claims, any noteworthy conditions or qualifications should be highlighted; in this case the ASA suggested adding the words “when empty” to the pick-up performance test results. Notwithstanding the contrary evidence submitted by the complainant, the ASA indicated that they would not have upheld the complaint had the advertiser provided evidence of ongoing pick-up performance (with dust in the bag) or had appropriate qualifications been included in the advert.

The advertising of vacuum cleaners is often fiercely competitive. CAP Copy Advice has therefore issued guidance in respect of vacuum cleaner marketing.

OTHER

8. Argos Ltd, 1 December 2010

A television advert for Argos showed two penguins making a delivery to a walrus. The voiceover stated “With over 1500 lorries, we can deliver what you want at a time slot that’s right for you”. Superimposed test stated “terms, delivery charges and exclusions apply…”

Complaint/Decision

The advert attracted three complaints on that basis that the claim “we can deliver what you want at a time slot that’s right for you” was misleading and could not be substantiated.

The ASA noted that the advertiser provided a number of delivery options to customers and would inform them whether their delivery was to take place in the morning or afternoon. In some cases the advertiser would indicate a two-hour delivery time-slot. Nevertheless, the ASA considered that the claim in the advert implied that customers could choose a delivery time at their convenience, and therefore that consumers had a wide choice of delivery time-slots. However, the ASA concluded that this was not the case and that the advert was misleading.

This adjudication serves as a reminder that advertisers must not mislead consumers and must highlight any specific terms and conditions in their adverts. Although neither the advertiser nor Clearcast considered that the claim was an absolute promise, the ASA did not consider that consumers would have the wide degree of choice of delivery times that the advert implied.

9. Halewood International Ltd, 1 December 2010

A radio advert for Crabbies alcoholic ginger beer, featured a man stating "OK Peter, Amy wants the pork and I fancy the Mediterranean tart". A woman then stated "I think I'll go for the chef's T-bone with nut stuffing". Amy said "Are you sure Sarah? I had it last time and it was very filling”…One of the men then said "All we need now is the warming spices of Crabbies alcoholic ginger beer served over ice with a slice". A voice-over said "Crabbies alcoholic ginger beer. Refreshing ginger beer only for grown-ups". Peter said "I say gang, does anybody want my spotted dick?"
Complaint/Decision

Four complainants contacted the ASA to challenge whether the advert was appropriate for broadcast when children would hear it because it contained a number of sexual innuendos. One of the complainants reported that his three-and-a-half-year-old child heard the advert and had been asking for the product; he complained that the advert promoted an alcoholic drink in a playful way that was likely to appeal to children.

The ASA did not uphold the complaints. Although it acknowledged that the advert contained sexual innuendos and was broadcast at a time when children might hear, because the innuendos were mild and unlikely to be understood by very young children, the ASA considered that the advert was unlikely to cause harm or be unsuitable for children. Accordingly the ASA concluded that the advert was acceptable for broadcast without a scheduling restriction. Furthermore, the ASA considered that the style of the advert was unlikely to be of particular appeal to young listeners and that the advert was clearly directed at people over the age of 18.

This adjudication reminds advertisers that the ASA will consider the overall context and style of adverts. This advert was allowed on the basis that the innuendos were “mild”. Advertisers should therefore take care when creating adverts containing innuendos or material that could potentially offend consumers. Advertisers should always consider targeting and whether an ex-kids restriction is appropriate.

10. Molson Coors Brewing Company (UK) Ltd, 8 December 2010

This adjudication concerns a television and poster advert for beer. The poster stated “Scientifically proven to lock in great taste” above a can of Carling featuring the text “NEW TASTE LOCK CAN”. The television advert showed a group of men in the desert. At the end of the advert a Carling Taste Lock Can with the text “NEW TASTE LOCK CAN” was shown. The voice-over said “New Carling Taste Lock Can, locks in the great taste.”

Complaint/Decision

A competitor challenged whether the claim “NEW TASTE LOCK CAN” was misleading because it implied that the can was a new design using new technology. The complainant also challenged whether “Scientifically proven to lock in great taste” misleadingly implied that the can was better than the advertiser’s competitors.

The advertiser submitted evidence that it had invested in combining different technologies and installing new equipment to create its new can. The advertiser also claimed that the can was a new innovation for the advertiser, not for the industry. The ASA noted that the advert did not contain any superiority or comparative claims and considered that consumers were unlikely to interpret the claim as referring to a new industry-wide innovation. It concluded that “NEW TASTE LOCK CAN” would be interpreted to mean that the advertiser had made changes to the can which improved the taste of the beer, rather than that it had created a new innovation that made the can better than the those of the its competitors. The scientific analysis sent by the advertiser comparing its old and new cans evidenced this. Accordingly, neither complaint was upheld.

In this case the advertiser was careful not to make any comparative claims against competitors and did not imply that the “new” technology was innovative in the industry as a whole. This allowed the advertiser legitimately to make the “new” claims. Advertisers should take care to substantiate any “new” claims and should ensure that any appropriate qualifications to these are highlighted.

11. Reebok International Ltd, 1 December 2010

This adjudication concerns a television and a magazine advert. The magazine advert featured headline text that stated "Reetone [sic] with every step. Get up to 28% more of a workout for your bum. And up to 11% more for your hamstrings and calves". The advert also feature an outline of a woman with the text "28% gluteus maximus", "11% hamstrings" and "11% calves".

The television advert featured women wearing trainers whilst walking, dancing, jumping, spinning around and standing, with the camera fixed on their bottoms and legs. The voice-over stated "Reebok EasyTone. Helps tone legs and bum more than regular trainers. Reebok EasyTone with balanced ball inspired technology. Better legs and better bum with every step".

Complaint/Decision

Two complainants challenged whether the efficacy claims for the product were capable of substantiation and were misleading.

The ASA considered that the claims in the adverts would be understood to mean that consumers wearing the product during everyday activities would obtain a noticeable improvement in muscletone. The ASA also considered that the advert implied that that this improvement would continue over time. However, it understood that the efficacy claims made by the advertiser were based upon the results of an unpublished study during which participants performed activities for five minutes each time, during which muscle activity was measured for the first 30 seconds of each minute. The test results supported the claims made in the magazine advert. The ASA did not consider that the analysis of five 30-second measurements for each participant was suitable to support the long-term efficacy claims in the advert. Further, the study was carried out by a “very small sample” of participants and therefore the ASA did not consider this to be adequate to support the absolute efficacy claims made in the adverts. Whilst the advertiser submitted additional studies, these were not controlled and did not specifically relate to the advertised product. As a result, the ASA upheld the complaints.

This decision reminds advertisers that studies should consider the long-term effects of the use of products and should hold robust scientific evidence to support any efficacy claims. Further, this adjudication, along with that in respect of Biomedical Laboratories above, highlights that advertisers must ensure that tests are carried out on a sufficiently large sample of people and must ensure that controls are used.

12. Airline Seat Company Ltd t/a/ Canadian Affair, 1 December 2010

A regional press advert stated “DIRECT FLIGHTS to Canada...Calgary and Vancouver fr £318 return inc taxes". Small print in the advert stated "subject to availability ... Travel based on selected dates in September 2010. Flights based on Glasgow departures".

Complaint/Decision

One complainant challenged the availability of the flights at the advertised prices, because he had tried to book on the day on which the advert was published and was told that there were no available flights at the advertised price.

The advertiser submitted evidence that at the start of the promotion more than 10% of seats on the inbound and outbound flights were available at half the lead-in price (£159). Accordingly at that point it had been possible for consumers to book a return flight for £318. The ASA considered that this was adequate and accordingly did not uphold the complaint.

This adjudication follows several decisions in November relating to availability. Although the CAP Code does not provide quantitative guidance as to acceptable levels of availability, this decision provides a useful indication as to the amount of availability that will be considered sufficient by the ASA. Nevertheless, advertisers should be aware of the provisions in the CAP Code relating to availability (clauses 3.27-3.32), and should always consider the likely uptake of the advertised offer or promotion.

13. Dalton Group Ltd, 22 December 2010

A poster for a metal recycling service contained text reading “DALTON METAL RECYCLING BROXBURN… TOP PRICES PAID FOR SCRAP, COPPER, BRASS, LEAD, CARS…” On either side of the text was an image of a woman from the waist down wearing underwear and high heels.

Complaint/Decision

The advert attracted three complaints. The complainants believed that the advert was offensive because it was sexist and demeaning to women.

The ASA upheld the complaints. Although it did not consider that the image used in the advert was sexually explicit, it did consider the image to be sexually provocative. The ASA noted that the advert was for a scrap metal company, and therefore that the “image bore no relevance to the advertised service”; the ASA upheld the complaints.

Although the ASA has allowed images that are potentially sexually provocative in the past, such as in the American Apparel adjudication in November 2010 (an adjudication also containing issues with the model’s child-like appearance), this decision shows that advertisers should not allow the gratuitous use of sexually provocative imagery in “an untargeted medium” where such imagery bears no relevance to the advertised product or service.

14. UK Loan Star.NET, 1 December 2010

A Google sponsored link stated “4.5% APR Loans - No Fees Debt consolidation Loans from £5K APR from 4.5%. Apply Online & Save! RBS.UK-Loan-Star.net".

Complaint/Decision

The ASA received a complaint that the advert was misleading because it gave the impression that UK Loan Star.NET was affiliated with the Royal Bank of Scotland and that it was possible to obtain a loan rate of 4.5% with the Royal Bank of Scotland through UK Loan Star.

The ASA was concerned to note that advertiser did not respond to its enquiries. Regardless of this, the ASA considered that the inclusion of “RBS” in the advertiser’s URL indicated that the advertiser was affiliated with the bank, which was not the case. The advertiser had not submitted evidence that they could arrange a loan at a rate of 4.5%, and accordingly the ASA concluded that the advert was misleading.

Advertisers must ensure that they do not imply third-party endorsement, either as a result of using third party intellectual property rights (as in the case of Beetles UK Ltd t/a Danbury MotorCaravan, above), or by including a reference to the third party in its URL, as in this case.

NON-COMMERCIAL

15. The Smile Train UK, 8 December 2010

A national press advert was headlined "Pick one. Just one. Save their life for £150…." Further text below stated "The Smile Train provides life changing free cleft surgery... It gives desperate children not just a new smile - but a new life."

Small print at the bottom of the advert stated "A healthy diet is a crucial part of pregnancy for every woman and it can help to prevent birth defects…. Folic acid has been shown to reduce the risk of neural tube defects of the brain and spinal cord (such as spina bifida) in unborn children by between 50 and 70% when taken before conception and during the first trimester, and it could also help to reduce the risk of cleft lip and palate”.

Complaint/Decision

One complainant challenged whether the advert was misleading on two grounds: first, because the claim that a healthy diet could help to prevent clefts was misleading and could not be substantiated; and secondly, because the “Save their life” claim was misleading and could not be substantiated.

In respect of the first challenge, the ASA did not uphold the complaint. The ASA acknowledged that clefts were often caused by genetic disorders but noted that the research provided by the advertiser indicated that clefts could be caused by other, dietary or environmental factors. The ASA noted that the recommendations in the advert that the women should take folic acid and eat a healthy diet were in line with the findings of medical studies. The ASA also specifically noted the use of the “can help” and “could also help” qualifications, and did not consider that the advert was misleading.

With regard to the claim “Save their life”, the ASA considered that the claim could be not only be interpreted to mean that cleft surgery could physically save a child’s life, but also that surgery could improve a child’s quality of life, thereby giving them the opportunity for a “new life”. The complainant had believed that the statement “Save their life” implied that clefts were life-threatening,, and accordingly the ASA considered whether this particular interpretation could be substantiated.

The advertiser had provided evidence to show that children with untreated clefts could have difficulty breathing, swallowing, sucking and chewing, and therefore that the likelihood of malnutrition or dehydration was increased in children with clefts. The ASA considered that the advertiser provided cleft surgery in developing areas where children were more prone to these conditions and where there was a likely reduction in the availability of healthcare; it concluded that it could reasonably be expected that the mortality rate would be higher among children whose clefts had not been treated and that the claim was therefore not misleading.

The decision in respect of the first challenge shows that the ASA considers the use of phrases such as “could help” when assessing whether claims are qualified or absolute, and when determining the level of evidence required to substantiate such claims. Nevertheless, it is important that advertisers do not solely rely on these qualifications; instead they should hold appropriate and robust evidence in substantiation of their claims. In respect of the second challenge, it is interesting to note that, although the ASA determined that the relevant claim could have a wide meaning, because the complainant had interpreted the claim in a more absolute way, the ASA considered whether there was evidence to substantiate that particular interpretation. Advertisers who intend their claims to have wide meanings should be aware of the possible other interpretations of their claims, so as to ensure that they hold appropriate evidence in substantiation.