ASA Adjudications Snapshot – April 2013

This summary provides a selection of the most interesting ASA adjudications in April, highlighting the key issues considered in those adjudications. The battle between ISPs continues to rage, with complaints made about Virgin Media, TalkTalk and YouView. Five separate complaints were made about sit-up Ltd’s teleshopping channels this month, which brings the company’s 2013 tally of upheld complaints to 18. American Apparel was, again, subject to complaints that its ads were sexually explicit and it is suggested that the ASA might be considering invoking its ultimate sanction of referring the advertiser to the OFT. Other complaints this month related to promoting excessive drinking (NoCurfew), dangerous driving (BMW), “everlasting” boilers (A Shade Greener) and Groupon promotions.

The Children’s Food Campaign this month released a report on the ASA’s approach to ads for junk food. The report is critical of the ASA and suggests that it is failing to protect children from junk food averts. The report also highlights several examples of ads, for example for Cadbury’s Creme Eggs and featuring cereal Sugar Puffs’ brand mascot the Honey Monster, which the Children’s Food Campaign suggests the ASA has not handled satisfactorily. Find out more about the report here.

ADJUDICATIONS

RETAIL

1. sit-up Ltd trading as bid tv

, 3 April 2013 (complaints were made about a teleshopping presenter who repeatedly described a gold-plated bracelet in a manner that could have suggest that it was made of solid gold)

COMPUTERS AND TELECOMS

2. Moneysupermarket.com Ltd

, 3 April 2013 (a complaint was made after the website changed the closing date for entries to a promotion)

3. Virgin Media Ltd

, 10 April 2013 (BT, Sky and a member of the public complained about Virgin Media’s ads in relation to the pricing of its TV/phone/broadband packages and also in relation to the availability of its HD TV services)

4. YouView TV Ltd

, 17 April 2013 (Virgin Media and Sky complained about several of YouView’s claims about its on-demand catch-up service)

5. TalkTalk Telecom Ltd trading as TalkTalk

, 17 April 2013 (the ASA ruled on whether an offer including a “free” YouView box was misleading by virtue of a compulsory £50 engineering installation fee)

FASHION

6. American Apparel (UK) Ltd

, 10 April 2013 (the ASA considered whether an ad for hosiery products and separately an ad for a knitwear product were sexually explicit)

7. URBN UK Ltd trading as Urban Outfitters

, 10 April 2013 (the ASA considered whether the use of the word “SH!T” in an email ad sent to the retailer’s mailing list was offensive)

FOOD & DRINK

8. NoCurfew Events Ltd

, 3 April 2013 (the ASA itself complained about a leaflet that included drinks offers, appealed to young people and allegedly encouraged excessive drinking)

9. Pussy Drinks Ltd

, 24 April 2013 (the ASA considered a significant number of complaints from the public in relation to posters featuring the brand name Pussy)

HEALTH & BEAUTY

10. DS Marketing Ltd trading as Dead Sea Kit & Collagenta

, 17 April 2013 (the ASA considered several complaints in relation to an online offer for free trials of beauty products that were claimed to reduce wrinkles)

FINANCE

11. Money Boomerang Ltd

, 3 April 2013 (the ASA investigated a complaint made about a Tweet by Money Boomerang in relation to reclaiming PPI)

12. Instant Cash Loads Ltd trading as The Money Shop

, 10 April 2013 (a viewer complained that a TV ad for The Money Shop featuring David Dickinson featured illegible claims and was misleading)

13. WHG Trading & WHG (International) Ltd trading as William Hill

, 24 April 2013 (the ASA investigated whether price comparison claims with rival bookmakers could be substantiated)

LEISURE

14. A Shade Greener Ltd trading as Everlasting Boiler Ltd

, 3 April 2013 (the ASA investigated whether claims that boilers were everlasting were misleading)

15. MyCityDeal Ltd trading as Groupon

, 3 April 2013 (the ASA considered complaints about a Groupon offer when it was discovered that a better offer was available directly from the hotel that was subject to the offer)

16. BMW (UK) Ltd

, 17 April 2013 (the ASA considered whether BMW’s ad campaign for its all-weather xDrive mode encouraged unsafe and irresponsible driving)

17. Dennis Publishing Ltd trading as Auto Express

, 24 April 2013 (the ASA considered whether emails advertising an extension to a free trial of the magazine’s iPad edition were misleading)

18. Fred Olsen Cruise Lines Ltd

, 24 April 2013 (complaints were made about a “best price guaranteed” offer for a cruise advertised in a brochure that was subsequently beaten by a 2 for 1 offer)

19. Trump International Golf Club Scotland Ltd

, 24 April 2013 (the ASA considered several complaints about an ad that campaigned against plans to build wind farms in Scotland)

RETAIL

1. sit-up Ltd trading as bid tv

, 3 April 2013

A teleshopping ad for a Figaro-designed gold-plated bracelet featured several claims that referred to the product as a “gold bracelet” and several references to gold.

Complaint/Decision

The complainant challenged whether the ad misleadingly suggested that the product was made of gold.

Bid TV accepted that the on-screen description could have been clearer to viewers. Bid TV suggested that the presenter’s “rambling style” was popular with viewers and stated that he did not use the terms “solid gold” or “pure gold” but his initial description of the item was that it was gold plated. It stated that presenters had been retrained to ensure that items were described accurately.

The ASA upheld the complaint and considered that, whilst there were initially references to gold overlay, there was a greater number of clear, unqualified references to “gold” that were more prominent and suggested that the item was made of solid gold. The ASA, however, welcomed Bid TV’s undertaking to prevent similar situations recurring in the future.

This is just one example of five complaints made about sit-up Ltd’s teleshopping channels this month and brings the company’s 2013 tally of upheld complaints to 18 (as at the time of writing). Teleshopping is an unpredictable form of advertising as claims about products’ descriptions are left to presenters who may have a “rambling style”, as was the case here. This can cause problems when presenters deviate from absolute accuracy when attempting to sell products and highlights the need to impress on such presenters the importance of accuracy and substantiation.

COMPUTERS AND TELECOMS

2. Moneysupermarket.com

, 3 April 2013

An ad for a prize draw on www.travelsupermarket.com, the top prize in which was £750 cash, stated that everyone who entered would have their child’s drawing made into a Christmas card. The ad stated that entrants had to enter by 17 December 2012, although it also stated that TravelSupermarket.com reserved the right to extend the date of the promotion and any such extension would be notified via its Twitter account.

Complaint/Decision

The complainant challenged whether the rules surrounding the administration of the promotion had been observed because it was announced on 17 December on the promoter’s Twitter feed that the promotion had been extended.

Moneysupermarket stated that the promotion had essentially been an offer of seasonal goodwill and the promotion had been extended on 17 December to allow more children to benefit from a personalised Christmas card. It stated that the terms and conditions had clearly stated that it reserved the right to extend the closing date and had described the manner in which it would be communicated. The ASA upheld the complaint and stated that the CAP Code allowed for closing dates to be changed only if circumstances outside the reasonable control of the promoter made it unavoidable. Despite the warning in the terms and conditions, the ASA therefore deemed the extension of the closing date to have not been in line with the CAP Code.

This example demonstrates that the ASA takes a very strict approach to competitions and their administration. Despite the ad clearly stating the means by which the competition closing date could be extended (the ad therefore clearly not being misleading), the ASA still found the ad to be in breach. It is clear that the ASA will not tolerate the extension of competition closing dates unless the reason for doing so falls under the CAP Code rule of being out of the control of the promoter so as to render the extension unavoidable; it seems that not even a little festive cheer is sufficient to deter the ASA from enforcing this strict rule.

3. Virgin Media Ltd

, 10 April 2013

Virgin Media was subject to two separate complaints in April.

First Complaint/Decision

Two press ads for Virgin Media promoted a “half-price for 6 months” offer. The headline of the first ad claimed to offer “TV, broadband and calls from £3.50 a month” for 6 months. Several packages were then listed in boxes on the ad, including “TV and calls for £3.50”, “Broadband and calls for £7.50” and “Essential collection £12.50”. The second ad stated “TV, broadband and calls – pick the mix that’s right for you Prices start from just £3.50 a month”.

BT (in relation to the first ad) and Sky (in relation to the second ad) complained that the respective ads misleadingly implied that all three services (TV, calls and broadband) were available for £3.50 a month when actually only TV and calls were available at that price.

In relation to the first ad, Virgin Media suggested that consumers would not consider the headline in isolation from the body of the ad and stated that the boxes on the ad set out explicitly the prices for each bundle. In relation to the second ad, Virgin Media suggested that the wording “Pick the mix that’s right for you” was explicit in conveying to consumers that they could choose a mixture of services, of which TV and calls for £3.50 was just one mix.

The ASA upheld BT’s complaint in relation to the first ad and took the view that the body of the ad contradicted rather than qualified the headline statement. The ASA determined that the ad provided ambiguous information about what consumers could obtain as part of the £3.50 bundle and concluded that it was therefore misleading. The ASA did not, however, uphold Sky’s complaint in relation to the second ad. The ASA took the view that the wording “pick the mix that’s right for you” would be understood by consumers to mean that a range of packages were available comprising different elements of TV, calls and broadband, the cheapest of which was available from £3.50 per month.

Second Complaint/Decision

The Virgin Media website claimed that “HD comes as standard with all our TV packages”. The complainant challenged whether this statement was misleading as he believed that longstanding customers did not receive HD.

Virgin Media stated that it had offered customers HD boxes since 2006 and that in April 2010 its V HD box became the standard entry level box offered to customers. Virgin Media stated that existing customers with non-HD boxes were able to upgrade to an HD box and would then receive HD channels included in their TV tier. Virgin Media also highlighted that the claim was made on the “store” section of its website and was therefore targeted at new customers. Virgin Media also highlighted that the small print and a tab on the website entitled “How do I get HD TV?” set out exactly what was required in order to receive HD TV. Virgin Media recognised that some of its older customers may not be able to receive HD TV due to legacy equipment but stated that the ad made it clear what equipment was required in order to receive HD TV.

The ASA did not uphold this complaint. It acknowledged that the claim appeared in a section of the Virgin Media website aimed at potential new customers and noted that there was a separate section of the website for existing customers. The ASA also noted that legacy customers could upgrade their box or package in order to receive HD channels. The ASA therefore took the view that customers would understand the claim that “HD comes as standard” to relate to current TV packages on sale rather than to all existing Virgin media customers.

The battle between ISPs continues to rage, with BT and Sky having successfully complained to the ASA only last month that Virgin Media had made misleading claims as to the speed of its broadband services. Virgin Media and Sky also made complaints about a number of claims made in ads for YouView TV this month (see below). It is perhaps not surprising, given the ASA’s strict approach to the need to qualify price claims appropriately, that the complaint made by BT was upheld, as the claim “TV, broadband and calls from £3.50 a month” does suggest that all three services were included and the claim should have been properly qualified.

4. YouView TV Ltd

, 17 April 2013

Several ads for YouView contained claims about its television service, including “YouView is the easiest way to watch catch up TV, on your TV”; that it had a “unique scroll back function”; that the service was “subscription free”; that it offered “Over 70 digital channels including HD”; and that users could “Record your favourite shows in HD”.

Complaint/Decision

Virgin Media and Sky made various complaints about the claims made in the ads. Virgin Media complained that the claims as to the uniqueness of YouView and the claim that it was “the easiest way to watch catch up TV, on your TV” were misleading as it offered similar services. Virgin Media also challenged whether the claim that YouView was subscription free was misleading as it understood that a broadband subscription was required. Virgin Media and Sky both complained that the claims in relation to YouView’s number of channels and the recording of HD channels exaggerated the availability of HD channels on the service.

YouView submitted a substantial response to the complaints. It stated that it had carried out a survey of around 2,000 members of the public that had trialled the service, of whom 77% agreed that YouView’s scroll back method made it easier to find programmes compared with other methods of on-demand catch-up TV.

The ASA upheld this part of the complaint. It noted the research that YouView had carried out but, because the trial participants had not been asked whether they agreed that YouView was the “easiest way to watch catch up TV, on your TV” i.e. the actual claim that had appeared in the ad, the ASA concluded that the claim had not been adequately substantiated. The ASA also upheld the complaints in relation to the uniqueness of the scroll back function because it agreed that there were other services available that also offered that ability.

The rest of the complaints were not upheld. The ASA accepted YouView’s argument that the average consumer would be aware that a broadband connection would be required in order to access on demand TV and, in any event, the ads had sufficiently alerted customers to this fact. The ASA also accepted YouView’s argument that its ads referred to “digital channels” rather than TV channels and concluded that consumers would be likely to understand that not all channels would be available in HD.

5. TalkTalk Telecom Ltd trading as TalkTalk

, 17 April 2013

A TV ad for a TalkTalk broadband, TV and phone package included a voiceover that stated “free YouView Box”, although the ad featured superimposed text that stated “£50 engineer installation fee”. A mailing ad for the same package also advertised a “FREE YouView box” and featured small print at the bottom of the page which stated “£50 engineer installation fee and terms & conditions apply”.

Complaint/Decision

The complainant challenged whether the YouView box was free, as advertised, because there was a £50 installation fee.

TalkTalk stated that the £50 was clearly stated in both ads to be an installation fee and added that installation of the YouView box had to be undertaken by an engineer so as to ensure proper activation of the TV service. TalkTalk suggested that charging such an installation fee was standard industry practice. It also stated that the corresponding television package could be purchased on a stand-alone basis without a YouView box which would not affect the price of the package. TalkTalk argued that the offer was a conditional purchase offer that Clearcast had stated complied with the CAP Guidance on the use of “free”.

The ASA upheld the complaint. The ASA noted that the £50 was payable by every customer that opted to take a YouView box and it therefore deemed the two to be inextricably linked. The ASA highlighted that customers who opted to not receive the YouView box effectively paid £50 less. The ASA stated that, whilst some one-off, up-front, costs would not negate a claim that a product or service was “free”, in this case the fee was payable by every customer that took a YouView box and so that situation did not apply.

This is the second time in 2013 that TalkTalk has had complaints upheld against it in relation to the pricing of YouView boxes, after advertising the box for free but stating that it had an RRP of £299 in January. Particular care must always be taken when referring to the word “free” in any ad as the ASA always reviews these claims very carefully. Moreover, of course, advertising something as being “free” where the consumer has to pay more than the unavoidable cost of responding to the practice is also a breach of one of the 31 always unfair practices set out in the Consumer Protection from Unfair Trading Regulations.

FASHION

6. American Apparel (UK) Ltd

, 10 April 2013

An ad for American Apparel featured six pictures of a model from the chest or waist down modelling a body suit and thigh-length socks on a bed and in a variety of poses, including two with her legs open. Another American Apparel ad featured a picture of a girl reclining on a bed apparently wearing only a jumper.

Complaint/Decision

The complainant, who believed the models appeared vulnerable, challenged whether the ads were offensive because they were overtly sexual. The complainant also alleged that the first ad objectified women. American Apparel responded merely by stating that it did its best to abide by the standards of industry whilst attempting to create authentic, honest and memorable images relevant to its customer base.

The ASA upheld the complaints against both ads. In relation to the first ad, the ASA suggested that, by not showing the woman’s face and emphasising the woman’s groin, breasts and buttocks, the images were overtly sexual, demeaned woman and were gratuitous. In relation to the second ad the ASA highlighted the fact that the woman appeared to be naked on her lower half, with her buttocks visible, and took the view that the image was gratuitous, particularly in an ad for knitwear. The ASA commented that both ads had a voyeuristic quality that heightened the impression that the women were vulnerable and in sexually provocative poses.

This is the latest in a string of complaints made about American Apparel’s ads, nearly all of which relate to sexual explicitness and all of which have been upheld by the ASA. The repeated upholding of complaints made about American Apparel ads and the lack of any substantive response from American Apparel in this latest adjudication suggest that the ASA’s decisions may be having little impact on the clothes retailer’s advertising policy. In such situations the ASA can invoke its ultimate sanction of referring the advertiser to the OFT, as it did notably with Ryanair in April 2008. It is suggested that the ASA might be considering making such a reference in the case of American Apparel.

7. URBN UK Ltd trading as Urban Outfitters

, 10 April 2013

An email ad sent to customers by Urban Outfitters stated “SORT OUT YOUR SH!T FOR 2013” and also featured the wording “WATCH THIS SH!T” next to an image of a cat peering into its litter tray, in which “2013” was written in excrement.

Complaint/Decision

The complainant challenged whether the language and imagery of cat excrement was offensive.

Urban Outfitters claimed to be a trendy and fashionable clothing line with a “street style attitude”. It also claimed that its customers were trend-setting, creative individuals with a sense of humour who like to experiment. Urban Outfitters confirmed that the ad was only sent to its mailing list, for which customers had to sign up, and was therefore likely to consist entirely of its core demographic, i.e. individuals between the ages of 18 and 25. Urban Outfitters suggested that the wording in the ad was a clear reference to the phrase “get your sh*t together”, a phrase with which its key demographic would be familiar and would not find offensive, in which the word “sh*t” referred to belongings or thoughts.

The ASA did not uphold this complaint. The ASA considered that, whilst the clear reference to the word “sh*t” could be considered distasteful, the language was relatively mild and the ad was unlikely to cause serious or widespread offence. The ASA considered that the Urban Outfitters website, which was one of the means of signing up to the mailing list, clearly targeted a young adult audience and that recipients of the email ad who had signed up to Urban Outfitters’ mailing list were therefore unlikely to be seriously offended by the use of the expletive.

The ASA’s decision to not uphold the complaints in relation to the use of the word “sh*t” in this ad is in contrast to its decision to uphold a complaint made against smellyourmum.com last month for advertising a birthday card online that featured the word “c**t”. In that instance the ASA placed importance on the fact that the ad was not targeted, whereas it deemed the Urban Outfitters ad to have been targeted as it was only sent to individuals that had signed up for its newsletter. The ASA also considered the word “sh*t” used in the Urban Outfitters ad to be only “mildly offensive”, whereas the word “c**t” complained of in the smellyourmum.com ad was deemed to be “so likely to offend that it should not be used at all in marketing communications”. It is therefore questionable whether the use of that word would be acceptable even in a targeted ad.

FOOD & DRINK

8. NoCurfew Events Ltd

, 3 April 2013

A leaflet for a bar in Leeds featured several different images, including: a monkey smoking a cigarette; several images of women in various states of undress; an image of a woman pouring a clear liquid into her mouth from a bottle. The text on the leaflet stated “FREE BOMB WITH EVERY DRINK”.

Complaint/Decision

A complainant challenged whether the image of the smoking monkey was offensive as it showed animal cruelty and also complained that the images of the women in the ad were offensive and unsuitable for a circular that could be seen by anyone including children. The ASA challenged whether the images of the women were irresponsible because they showed alcohol being handled irresponsibly and also linked alcohol with sexual activity. The ASA challenged whether the leaflet was irresponsible as the images were likely to appeal to people under 18 and also because the models appeared to be under 25. The ASA also challenged whether the statement “FREE BOMB WITH EVERY DRINK” was irresponsible as it encouraged excessive drinking.

NoCurfew said it had not intended to cause offence with the leaflet and had removed it from circulation. It stated that, although the leaflet may have offended some members of the public in Leeds, students to whom the leaflet had been circulated would see similar images on a daily basis and would not find them offensive. It stated that it did not know the models’ ages but that they were clearly over 21. In relation to the drinks offer NoCurfew stated that it was only intended to be competitive. It argued that the offer did not encourage excessive drinking because it was not forced upon all those attending the event and also pointed out that there was no time at which the offer expired, which would have encouraged people to drink quickly.

The ASA upheld all of the complaints. It considered that, whilst the event promoted by the leaflet had been aimed at students, the leaflet had been distributed to members of the general public, not only students. The ASA deemed the image of the monkey smoking to be likely to cause serious offence to both students and members of the general public. The ASA deemed some of the images of women in various states of undress as likely to cause widespread offence as the leaflets had been distributed to an untargeted audience. The ASA also found the images, by virtue of the association of the images with the drinks promotion, to portray an unwise and irresponsible style of drinking and also to link alcohol to seduction and sexual activity. The ASA took the view that all the models looked young and stated that, whilst the CAP code requires marketing communications that refer to alcoholic drinks to not show people under 25, it had not seen any evidence that the models in the leaflet were over 25. The ASA deemed the images to be cumulatively youth-orientated, an approach it concluded was irresponsible. In relation to the drinks promotion the ASA interpreted it to mean that the free “bomb” was to be consumed in addition to purchased drinks. It also acknowledged that the offer was not restricted in terms of timing, nor in terms of the number of free “bombs” each person attending the event would be entitled to. It therefore deemed the leaflet to encourage the excessive consumption of alcohol, which was irresponsible and breached the code.

This outcome is of no great surprise, especially considering that five of the seven complaints made about the leaflet actually came from the ASA. NoCurfew’s response in relation to the drinks promotion was particularly weak – it seems extremely tenuous to suggest that the offer of free “bombs” all night in fact demonstrated that the leaflet did not encourage excessive drinking. It is also not at all surprising that the depiction of the monkey smoking a cigarette was deemed likely to cause widespread offense.

9. Pussy Drinks Ltd

, 24 April 2013

An ad campaign for energy drink Pussy included posters that featured the word “Pussy” in large bold lettering and, in smaller lettering, “The drink’s pure, its your mind that’s the problem”. A second poster included the word “Outrageous” in large bold lettering, the name of the product, Pussy, in large text and in smaller lettering, “An energy drink that tastes good”. The drink’s website stated “Our goal is Global Pussyfication and we aim to bring Pussy within everyone’s reach”.

Complaint/Decision

156 complaints were made about the ads. Most of the complaints challenged whether the first poster was offensive as it implied a sexually explicit reference, was derogatory, sexist and degrading to women. Other complaints related to the second poster and the website on similar grounds. Some complaints challenged whether the posters were unsuitable to appear where they could be seen by children, and two complaints challenged whether the first poster was offensive to those with religious beliefs and was therefore not appropriate to be displayed near a church.

Pussy Drinks Ltd considered it ironic that complaints had been made given that the poster clearly stated that the drink was pure but it was the mind that was the problem. It also referred to the Oxford English Dictionary definition of pussy, which is “a cat, particularly a kitten”. It stated that any problems were caused by those who were twisting the meaning of an innocent word. The ASA, however, took the view that the ad consciously made reference to the dual meaning of the word pussy, including its colloquial meaning which some might find sexually explicit, and it therefore upheld the complaints in relation to the first poster. The ASA did not uphold the complaints in relation to the second poster as it found there to be no reference in the ad that promoted or highlighted the colloquial meaning of the word “pussy”. In relation to the website, the ASA again did not uphold the complaints and took the view that, whilst the ad’s claims might be distasteful to some consumers, the website would only be accessed by consumers that were aware of the product name and the claims were therefore unlikely to cause widespread offense.

Pussy Drinks Ltd questioned whether any complaints had been made by children. It also suggested that, if children were aware of the slang meaning of the word pussy, it was likely that those children had learned the slang meaning of the word from the adults that now claimed they wished to protect those children. Pussy Drinks Ltd also stated that the inspiration for the product had been a gorgeous white pussycat that had been owned by a family member as a child. The ASA took the view that some older children would be aware of the dual meaning of the word pussy and, due to the fact that the slogan on the first poster reinforced the colloquial meaning, it upheld the complaints in relation to the first poster appearing where it could be seen by children. The ASA considered that the second poster did not promote or highlight the colloquial meaning of the word pussy and therefore did not uphold the complaints in relation to that poster appearing where it could be viewed by children.

In relation to the complaints made on religious grounds, Pussy Drinks Ltd questioned which religion would be offended by Pussy and pointed out that the ancient Egyptians had worshiped cats. The ASA, whilst noting stating that it thought the poster was likely to cause widespread offence generally, took the view that it was unlikely to cause particular offence to those with religious grounds because of their faith.

The advertiser’s arch response to this complaint highlights a particular issue for the ASA, which is that some advertisers welcome the notoriety accompanying an upheld complaint, and for such advertisers the ASA’s inability to impose financial penalties means that there is no realistic deterrent to this kind of advertising.

HEALTH & BEAUTY

10. DS Marketing Ltd trading as Dead Sea Kit & Collagenta

, 17 April 2013

An advertorial for products that purported to remove wrinkles made claims in relation to the products’ effectiveness through an example of a single mother that had encountered “age defying results”. The ad offered free trials of the products described and made several claims as to the high demand/low availability of the trials. The ad featured wording that stated the offer expired on the date the ad was viewed, the date of which appeared to update on a daily basis. Under the heading “Terms and Agreement” were many qualifications including that the example referred to was based loosely on a true story but had been modified in multiple ways “including, but not limited to: the story, the photos, and the comments.” The section ended with a serious of wording in capitals that included “THE STORY/COMMENTS DEPICTED ABOVE IS NOT TO BE TAKEN LITERALLY”.

Complaint/Decision

DS Marketing failed to respond to any of the complaints.

Two complainants challenged whether the ad was misleading for failing to make clear the costs that consumers who requested a sample would incur. The ASA upheld this complaint. The ASA highlighted that, while the small print did state that continuous billing applied to some products, it did not make clear for which products that was the case. The ASA also found that, due to the positioning of the small print and the lack of indication to consumers as to where they could find the terms and conditions, the terms and conditions had not been presented to consumers sufficiently clearly.

A complainant challenged whether the ad misleadingly implied that the product could achieve the stated efficacy. In the absence of any evidence to support the efficacy claims the ASA considered that they had not been substantiated and upheld this complaint. A further complainant challenged the expiry date of the offer as the complainant believed it was available on a permanent basis. In the absence of any evidence to demonstrate that the offer expiry date was accurate the ASA considered that the claim had not been substantiated and upheld this complaint.

The ASA was “concerned” by DS Marketing’s lack of response and apparent disregard for the Code. These types of online advertorials frequently appear as targeted ads on social media sites and are also frequently the subject of ASA adjudications. DS Marketing was itself subject to an ASA adjudication in November 2012 again in relation to a promotion for a free trial of a beauty product, which was also upheld. The effectiveness of the ASA’s decisions in relation to such advertorials is questionable as there seems to be no reduction in the number of such ads.

FINANCE

11. Money Boomerang Limited

, 3 April 2013

A Tweet from Money Boomerang, a claims management company (CMC), said “And yes, we *know* you can reclaim PPI yourself - but if you haven't time, or you want to be sure you get the maximum, give us a shout”.

Complaint/Decision

The complainant challenged whether the Tweet was misleading because it implied that: (1) the process of making a PPI reclaim was time-consuming; and (2) consumers stood a better chance of getting “the maximum” reclaim available if they used the advertiser’s service.

On (1): Money Boomerang said they did not believe the Tweet (a) gave any indication of the time that would be taken or (b) implied that it would be a time-consuming process. They explained that making a complaint to the lender and subsequently (if necessary) to the Financial Ombudsman Services required the preparation of letters and complaint forms and as such there were consumers who did not have the time to undertake that process. The ASA agreed and did not uphold the complaint. It did not consider the tweet went so far as to suggest the process would be time-consuming or complex, only that some people might want someone else to do it on their behalf.

On (2): Money Boomerang said they pushed each lender to go back into the client’s full financial history over a period of 15 years, and that lenders did not volunteer such historic information to lay customers. While the ASA disagreed that lay customers who claimed on their own stood to receive less than those who were represented by a CMC, it considered the Tweet would be understood to mean that using Money Boomerang’s services helped ensure consumers would obtain the full amount they were entitled to from their lenders. The ASA did not consider it implied consumers would be unable to “get the maximum” themselves. This element of the complaint was accordingly not upheld either.

12. Instant Cash Loans Limited trading as The Money Shop

, 10 April 2013

A TV ad for The Money Shop featured David Dickinson saying “They lend on genuine gold, jewellery, silver, diamonds and selected top brand watches … It’s easy! Pledging the valuables you own to secure a handy cash loan …” On-screen text stated “Borrow £100 at only £5.99 per month (usually £7.99) £100 borrowed for 211 days. Annual interest rate of 71.88% (fixed). Total amount repayable by one repayment is £141.52. 82.4% APR Representative …”. As Dickinson continued, “So don’t sell the treasures you own, use them to secure a pawn broking loan at only five pound ninety nine per month for every hundred quid borrowed …”, the text was shown in white against a yellow background.

Complaint/Decision

A viewer, who believed the on-screen text was not legible, challenged whether the ad was misleading.

The Money Shop argued BCAP Code rule 3.11 (Qualification) was irrelevant because the on-screen text was not included to qualify / make clear any restriction or limitation to the product. It stated that the text was included purely to detail the representative repayment. It also argued that viewers were given a significant length of time in which to digest the on-screen text (25 seconds out of a 40 second ad), the text was prominent and clearly legible at all times, was not detracted from by the moving background, and that guidance from Clearcast about the height and position of the text had been followed. Clearcast also believed the ad was acceptable.

The ASA agreed, though it considered rule 3.11 to be relevant because its requirement – that qualifying information must be sufficiently clear to enable an interested viewer, who made some positive effort, to read all text – was met. The ASA noted the text appeared for longer than was required by BCAP guidance and was, in its judgment, sufficiently legible to achieve the aim of enabling an interested viewer, who made some positive effort, to read all text. The ASA concluded that the ad did not breach the Code.

The case is useful in clarifying the scope of rule 3.11 and as a reminder of the value of Clearcast’s pre-clearance service. Clearcast had rejected a previous version of the ad on the basis the text was displayed for too short a period of time and the Money Shop accordingly changed the ad. A significant factor in the ASA’s decision was the fact that the text remained onscreen for a sufficient period of time.

13. WHG Trading & WHG (International) Ltd trading as William Hill

, 24 April 2013

A press ad for William Hill made various claims that it had offered the best prices on favourites in that football season compared to rival bookmakers Coral, Bet365 and Betfair. The ad showed statistics to demonstrate the number of occasions on which each of the four bookmakers mentioned had offered the best prices, of which William Hill had the highest.

Complaint/Decision

The complainant challenged whether the claims and comparisons with the other bookmakers were misleading and could be substantiated.

William Hill stated that the statistics used in the ad had been provided by an independent third-party source, TXOdds, which collated data on operators in the betting industry. William Hill highlighted that the ad clearly contained a reference to the website url which displayed the data. William Hill stated that the bookmakers named in the ad were large-scale operators in the UK market that it considered to be direct competitors. It stated that, whilst there were other gambling companies, it would have been unreasonable and impossible to have included them all in the comparison so had taken the major operators by market share and revenue. The comparison had actually included seven bookmakers but only three of these had been featured in the ad.

The ASA took the view that readers would interpret the claim to mean that William Hill had conducted a whole-market comparison, which had not been the case. The ASA also noted that William Hill’s comparison had omitted SkyBet despite it ranking above other bookmakers (in terms of gaming revenue) that had been included. The ASA therefore concluded that the ad was misleading and upheld the complaint.

The ASA will always require robust data to support any comparison claim. CAP and BCAP made two pricing rule changes to the UK Advertising Codes in February this year, the first of which related to price comparisons. The requirement for advertisers only to compare identical or substantially similar products has been removed, so advertisers may now compare products that are not identical but that meet the same need or intended purpose, provided the basis for the comparison is made clear. Read CAP’s full regulatory statement on the changes here.

LEISURE

14. A Shade Greener Ltd trading as Everlasting Boiler Ltd

, 3 April 2013

A website for boilers, www.everlastingboilers.co.uk, made several claims in relation to the quality and life expectancy of its boilers and made comparisons with other boilers. The website also featured a rolling banner at the top of the page that stated “[f]ree upgrade after 10 years”.

Complaint/Decision

The complainant challenged whether one of the claims made on the website that the boilers were “everlasting” could be substantiated. The complainant also questioned whether the offer of a “free upgrade after 10 years” contradicted the claim that the boilers were everlasting.

A Shade Greener stated that the claims that its boilers were everlasting referred an arrangement whereby a homeowner entered into an agreement with a Shade Greener under which a Shade Greener would install a gas central heating boiler and the homeowner would then pay it a monthly fee to cover the servicing and repair of the boiler for a term of 14 years. Under the agreement the boiler itself remained in the possession of a Shade Greener. After 10 years the homeowner would be given the option to upgrade to a new boiler, provided it entered into a new agreement with A Shade Greener. A Shade Greener suggested that it was clear that the life expectancy claim referred to the fact that the provision of heat to its customers’ homes would be everlasting whilst the customer had an agreement with it.

The ASA upheld both the complaint about the claims that the boilers were everlasting and also in relation to the offer of a free upgrade after 10 years. The ASA acknowledged the fact that the claims actually referred to an agreement under which A Shade Greener would offer repair and servicing of a boiler over a term of 14 years. The ASA considered the references to the boilers being “everlasting” to be “puffery” and unlikely to actually be interpreted as “lasting forever”. It considered that the claims did, however, imply that the boilers had exceptionally long life expectancy when compared with other boilers. As A Shade Greener had provided no evidence proving that its boilers did have an exceptionally long life expectancy when compared with other boilers the ASA found the claims that its boilers were “everlasting” to have been misleading. The ASA took the view that the claim “free upgrade after 10 years” suggested that customers might need to upgrade the boilers after 10 years and it deemed this to contradict the implication that he boilers provided were everlasting.

15. MyCityDeal Ltd trading as Groupon

, 3 April 2013

A promotion on www.groupon.co.uk stated “Afternoon Tea with Sparkling Wine for Two for £25 at Danubius Hotel, Regents Park (53% off)”.

Complaint/Decision

The complainant challenged whether the advertised saving was genuine after discovering that the hotel was promoting the same offer itself for £24.95.

Groupon stated that it had procedures in place to ensure that its partners did not run conflicting simultaneous offers, including checking for the existence of conflicting offers on a number of occasions throughout the deal’s lifecycle and having contractual obligations on its offer partners to not run conflicting offers. Groupon stated that the hotel had only promoted its own offer after the Groupon offer had gone live and blamed the incident on a miscommunication. Groupon stated that the offer had been removed from the hotel’s website as soon as the mistake had been realised. Groupon also submitted various evidence that purported to confirm that the advertised price reduction was accurate, although it was dated two months following the offer going live on the Groupon website.

The ASA acknowledged that Groupon had certain procedures in place to try to ensure that its partners did not promote conflicting offers, but stated that despite these procedures the hotel had run its own offer that had actually been 5p cheaper than Groupon’s offer. The ASA considered that Groupon had not provided sufficient evidence in relation to the original price of the afternoon tea and concluded that the claim as to a saving of 53% had not been substantiated. The ASA therefore upheld the complaint.

Groupon have historically been a common subject of ASA adjudications, having been subject to 22 rulings and having informally resolved 51 potential complaints. This has not been the case recently, however, this being only the third adjudication involving Groupon in 2013 and the previous two complaints, one of which was also made this month not having been upheld. For a company such as Groupon, whose primary means of advertising is through demonstrating savings and price reductions, it is of utmost importance that the savings that it advertises are accurate. It seems that Groupon has put in place procedures in order to avoid complaints in relation to its pricing advertisements and such steps are necessary considering the ASA’s strict approach to pricing.

16. BMW (UK) Ltd

, 17 April 2013

Two ads for BMW’s xDrive system featured pictures of BMWs driving around corners on snowy mountain roads with snow coming off the cars’ wheels. The text of the ads included claims such as “Handle every twist in the road and turn in the weather” and “although you can’t predict the weather, you can be confident of handling it with ease”.

Complaint/Decision

Two complainants challenged whether the ads encouraged unsafe and irresponsible driving; implied that driving fast around corners in poor conditions was safe; and implied that those driving vehicles with the xDrive system could drive as normal in hazardous conditions.

BMW stated that the ads were designed to show the benefits of its xDrive system in adverse weather conditions. It stated that the images were intended to depict normal movement and the snow coming off the cars’ wheels accurately represented the effect of those conditions even at very low speed. The ASA agreed with this argument and did not uphold this complaint.

BMW stated that the claims in the ads were meant to highlight that there was a major difference of traction in driving an all-wheel-drive car compared to a non all-wheel-drive car in snowy conditions and to inform customers that, with xDrive, customers could be more confident in the car’s ability. The ASA took the view that readers would not get the impression that vehicles with the xDrive system could be driven as normal in hazardous conditions and did not uphold this element of the complaint either.

This decision is in stark contrast to the ASA’s widely reported decisionNovember 2012 to ban Toyota’s multimillion pound TV ad campaign in . That ad, by contrast, featured scenes of high-speed driving that Toyota argued were pure fantasy and did not therefore encourage dangerous driving. It is welcome to see the ASA taking a pragmatic approach to BMW’s ad campaign, the genuine aim of which appears to be to simply demonstrate the capabilities of its cars’ xDrive feature.

17. Dennis Publishing Ltd trading as Auto Express

, 24 April 2013

Two emails sent to subscribers of car magazine Auto Express, who had received a free trial of the magazine’s iPad edition, included various claims in relation to extending the iPad subscription. The first email stated “You now only have 2 FREE issues remaining. Why not upgrade your print subscription today and get continued free digital access for the remainder of your subscription contract?” This claim was followed by hyperlinks including the wording “free upgrade”. The second email stated “As a loyal subscriber to Auto Express print magazine, you are entitled to a free extension on your access to the Auto Express iPad edition for the remainder of your current subscription contract”. It went on to state “if you choose to continue at your next renewal, you'll pay just 23p more per issue to continue receiving the iPad edition. Upgrade now. To find out more about this special offer and to upgrade your current subscription FREE today, click here”.

Complaint/Decision

The complainant challenged whether the ad misleadingly implied that a full subscription to the iPad edition could be obtained free when the complainant understood that it actually carried a charge.

Auto Express believed that the complaint was unfounded and stated that the ad made it clear that the free upgrade was on a limited basis and further payment would be required at a later date to continue the upgraded subscription. The ASA agreed with Auto Express and did not uphold the complaint. It took the view that the ads had made it explicitly clear that the “free” upgrade only applied to the remaining editions of the subscriber’s existing subscription and did not imply that renewing the subscription would automatically upgrade it to the iPad edition for free.

18. Fred Olsen Cruise Lines Ltd

, 24 April 2013

A brochure for Fred Olsen cruises stated “Book now and get the best deal – guaranteed!*”. There was a link to a footnote on another page which stated that terms and conditions applied and also stated that the price pledge in relation to early bookings excluded offers that required full payment at the time of booking.

Complaint/Decision

Two complainants challenged whether the claim “Book now and get the best deal – guaranteed!” was misleading because the cruises they had booked had subsequently become available at a cheaper price in a 2 for 1 offer.

Fred Olsen stated that the price pledge had a number of restrictions that were set out in the terms and conditions on page 3 and at the back of the brochure. Fred Olsen stated that one of the limitations of the price pledge was that it excluded offers that required payment in full at the time of booking and highlighted that the 2 for 1 offer referred to by the complainants was such an offer.

The ASA upheld the complaints. Whilst it acknowledged that the exclusions to the price pledge had been stated in the small print several pages further on in the brochure, the ASA considered that consumers would interpret the claim to mean that the price they paid for the cruise could not be bettered. As the cruise could be booked more cheaply on the 2 for 1 offer the ASA considered the claim to be misleading.

Complaints in relation to insufficient qualification of headline price offers are common and advertisers should always take care to qualify any price offers such as this properly and obviously. Including important qualifications in small print will often be looked at unfavourably by the ASA, as was the case in February 2013 when complaints were made about Vodafone’s failure to qualify headline prices properly.

19. Trump International Golf Club Scotland Ltd

, 24 April 2013

A press ad opposing wind turbines featured an image of wind turbines overlooking a motorway in California and text that read “Tourism will suffer and the beauty of your country is in jeopardy!”

Complaint/Decision

Twenty-one complainants, including Patrick Harvie, a Member of Scottish Parliament, and Yes2Wind.com, in addition to making another complaint that was not upheld, challenged whether the claim that tourism would suffer could be substantiated and whether the image was unrepresentative of any wind farms in Scotland.

Trump International stated that it had obtained clearance from CAP for the ad prior to its publication and argued that the ASA were therefore prevented, by law, from considering or ruling adversely against it. In response to this argument the ASA stated that CAP had provided advice in good faith that was binding on neither CAP nor the ASA, both of which might require the advertiser to provide evidence to substantiate the ad’s claims at a later date.

Trump International submitted a report that was published in May 2008 that it stated made clear that wind farms located close to tourist resorts would inevitably deter tourists and harm the tourism industry. It also submitted a series of slides that had been produced by Communities Against Turbines Scotland for a speech given to a tourism seminar hosted by the Scottish Tourism Alliance. The ASA considered the contents of both but concluded that neither supported the claim “tourism will suffer” and it upheld the complaints that related to this. In particular it highlighted the report’s conclusion, which stated that the impact of wind farms on Scottish tourism was very small.

This is the second time that one of US business tycoon Donald Trump’s companies has been subject to an upheld ASA adjudication in relation to plans to build wind farms in Scotland. Complaints made about a similar ad run by The Trump Organization LLC were upheld in September 2012. It remains to be seen whether this second upheld complaint will deter Donald Trump, who opened the Trump International Golf Links in Aberdeenshire in July 2012, from running more ads on this issue as part of his outspoken opposition to the Scottish Government’s, and in particular the First Minister Alex Salmond’s, plans to build more wind farms in Scotland.