This summary provides a selection of the most interesting ASA adjudications in May, highlighting the key issues considered in those adjudications. Of particular note in this month’s adjudications is the rare decision to refer a company, sit up Ltd, to Ofcom. The ASA have taken this step in light of the fact that sit up Ltd has amassed 22 complaints so far in 2013. The ASA are concerned that the number of misleading ads creates an ongoing and cumulative risk of financial detriment to consumers. Two complaints this month targeted over-sexualised, offensive and sexist adverts in both the Health & Beauty and fashion sectors with the ASA siding with the advertisers in both cases. The common complaints regarding Health & Beauty products and whether their efficacy is misleading are also highlighted in this update. Additionally, the ASA looked at a complaint in relation to a “number one” claim against Doorknobs Ltd, as well as confirming their strict approach in relation to ads that are seen to encourage reckless road safety. Other complaints this month relate to promotion of excessive drinking, whether a payday loan advert featuring Kerry Katona was socially irresponsible and misleading gym adverts.
Concerns about payday loans are a particular hot topic in the press recently. The ASA had decided on five payday loan ad complaints so far this year; this month’s snapshot highlights the most recent decision against PDB UK Ltd. There are limitations to what action the ASA can take when a product is legally allowed to be on the market, and legally allowed to be advertised. The ASA occasionally receive calls to ban entire sectors from advertising altogether. However, this sort of action requires legislation and a decision from Government; the role of the ASA is to make sure that legally permitted ads are prepared in a responsible way and don’t contain anything harmful or likely to mislead.
ADJUDICATIONS
RETAIL
1. sit up Ltd t/a bid tv, 29 May 2013 (A viewer complained about a claim made by a presenter of the teleshopping channel that a camera was being sold for the “lowest price ever”)
COMPUTERS AND TELECOMS
2. TalkTalk Telecom Ltd t/a TalkTalk, 8 May 2013 (Sky complained about a TalkTalk ad that featured the claim “Britain’s best value unlimited TV, broadband and phone… compared to Sky, Virgin and BT”)
3. Electronic Arts Ltd, 29 May 2013 (A member of the public challenged whether the use of a pre-launch video game review on the website for the video game was misleading)
FASHION
4. J D Williams & Company Ltd t/a Figleaves.com, 22 May 2013 (The ASA decided that posters for lingerie posted solely on London Underground billboards were not unsuitable for viewing by children, nor were they degrading to women)
FOOD & DRINK
5. Hi Spirits Ltd, 1 May 2013 (The ASA considered whether Fireball Whiskey’s Facebook page, which displayed various ads featuring young people drinking and encouraged students to apply for Fireball freebies during exams and coursework, were socially irresponsible because they promoted excessive drinking, and featured people who appeared to be under 25)
6. Nature Delivered Ltd t/a graze.com, 15 May 2013 (The ASA decided that an ad was not misleading as to the quantity of the product received upon delivery)
7. Yakult UK Ltd, 15 May 2013 (The ASA decided that scientific claims of bacteria staying in the gut were acceptable based on extensive studies as evidence, however, the general presentation of sports activities and connecting Yakult to a healthy lifestyle was an unauthorised general health claim)
8. Agriculture and Horticulture Development Board t/a lovepork.co.uk, 22 May 2013 (The ASA considered whether the phrase “Give a fork about your pork” was offensive because of the play on words)
HEALTH & BEAUTY
9. Unilever UK Ltd, 1 May 2013 (The ASA rejected complaints that a number of interactive ads on the internet for shower gel were offensive, as they were sexist and objectified women or portrayed men as sexually obsessed, manipulative and devious)
10. DS Marketing Ltd t/a Dead Sea Kit, 8 May 2013 (The ASA considered whether efficacy claims for a beauty product were misleading, and whether testimonials and before and after photographs where genuine)
11. Indeed Laboratories Inc, 15 May 2013 (The ASA concluded that a photo for a cosmetic product was not misleading and the effect of the product could be substantiated, by supporting photo evidence and assurances that the images were not digitally altered)
FINANCE
12. PDB UK Ltd t/a Cash Lady, 8 May 2013 (The ASA decided that use of a celebrity endorser famous for her money problems to promote payday loans was socially irresponsible, as well as deciding that words used in an ad had overridden the fact that the APR was displayed prominently on screen)
13. Decidebloom Ltd t/a stoneacre.co.uk, 29 May 2013 (The ASA decided that an ad for a car dealership showing a driver and passenger in car with barely visible seat belts was irresponsible)
TRAVEL & TOURISM
14. Archant Life Ltd t/a Great British Life, 1 May 2013 (The ASA decided that an exclusion in a promotion contradicted the headline, and that the ad was misleading by offering a prize of a family holiday but then excluded school holidays as to when it could be redeemed)
15. Thomas Cook Tour Operations Ltd, 15 May 2013 (The ASA considered whether a TV ad featuring a man letting the air out of a coach tyre was irresponsible and caused harmful emulation among children)
LEISURE
16. LA Fitness Ltd, 1 May 2013 (The ASA considered whether ads that included price statements and discounts that applied to the first month of gym membership only were unclear and misleading)
17. LivingSocial Ltd, 15 May 2013 and MyCityDeal Ltd t/a Groupon, 29 May 2013 (More complaints regarding group buying website offers were considered by the ASA)
OTHER
18. Doorknobs Ltd, 15 May 2013 (“Number one” claims made by a lettings agency in Tunbridge Wells were complained about by a rival local lettings agency)
RETAIL
1. sit up Ltd t/a Bid TV, 29 May 2013
A teleshopping ad for a Cannon camera featured on-screen text advertising the camera’s decreasing price. The first presenter stated “this is the lowest price ever for a camera”, before passing over to the second presenter who stated “it certainly is… the lowest price you’ve ever seen… the lowest price ever…so, lowest price ever”.
Complaint/Decision
A complainant challenged the claim that the camera was being sold for the lowest price ever, as he understood Bid TV to have previously sold it for less.
Bid TV stated that £125 was the lowest price the camera had been sold for on the Bid TV channel. It had previously been offered for £1 during a ‘megadrop’ feature on the Price Drop TV channel, but that the two channels, although both part of the sit up group, were separate channels with independent branding, teams, schedules, pricing, stock allocation, identity and websites. Bid TV therefore suggested that the presenter had been referring to the lowest price on ‘their’ channel, and not across the other channels related to sit up.
The ASA upheld the complaint, as it considered that the presenter’s references to ‘the lowest price’ did not explain adequately that this meant the lowest price on Bid TV, rather than the lowest price anywhere, including other channels. The comments were therefore found to be misleading, and in breach of the Code.
There were three other complaints made about sit up Ltd/Bid TV this month, which were upheld by the ASA on a similar basis: in relation to misleading price or product specification statements. The ASA told sit up Ltd/Bid TV to ensure it held robust substantiation for claims and to avoid misleading claims through inclusion or omission.
Sit up Ltd continues to clock up upheld complaints and these latest four adjudications bring its 2013 tally to 22. Influenced by this record, the ASA has therefore taken the unusual decision to refer sit-up Ltd to Ofcom for repeated breaches of the BCAP Code. The ASA stated that its main issues with sit-up Ltd have been misleading pricing claims and misleading product descriptions. It stated that it was concerned that the number of misleading ads created an ongoing and cumulative risk of financial detriment to consumers and, despite repeated warnings and attempts to work with sit-up Ltd to improve its advertising, the ASA has not seen an improvement. Ofcom has accepted the referral. The ASA has previously referred Ryanair to the OFT in April 2008 and Groupon in December 2011. There has also been speculation that the ASA is also considering making a referral in relation to American Apparel, which has also been the subject of several upheld adjudications recently.
COMPUTERS AND TELECOMS
2. TalkTalk Telecom Ltd t/a TalkTalk, 8 May 2013
A national press ad for TalkTalk, stating in large print “Britain’s best value unlimited TV, broadband and phone”, and underneath in smaller print: “compared to Sky, Virgin and BT”. Small print at the bottom of the page gave more details.
Complaint/Decision
British Sky Broadcasting Ltd (Sky) challenged whether the claim “Britain’s best value unlimited TV, broadband and phone… compared to Sky, Virgin and BT” was misleading.
TalkTalk argued that the claim would be viewed as relating only to the price of the various packages compared, regardless of the existence of any accompanying price claim regarding the service. TalkTalk stated that the comparison made in the ad was based on the premise that a customer wanting a TV, broadband and phone service would choose a “triple play” package bundled by a single provider. TalkTalk also pointed out that its reputation was built on its low prices and viewers of the ad would therefore understand that by “best value” the offer was referring to it being the “cheapest”, and that if in doubt the details of the comparison were set out in the small print.
The ASA upheld Sky’s complaint that the claim was misleading because, in the context in which it was used, it implied that TalkTalk offered a product of comparable quality to the named competitors, but at a lower price – particularly concerning “unlimited TV”, as this was in larger print than the rest of the ad. Sky asserted this was not the case as their TV package included channels not available with the TalkTalk package and were therefore arguably of better all around value. ASA considered TalkTalk’s argument of the interpretation of the words “best value” meaning “cheapest”, but decided the words were not interchangeable, particularly in the context of the main body of the ad which placed emphasis on “unlimited TV”.
TalkTalk was also on the wrong side of ASA adjudications in April and January this year in relation to pricing claims in relation to YouView boxes. This adjudication highlights the ongoing competitiveness between broadband service providers and comparative claims such as in this ad are frequently challenged by rival providers. Claims such as “best value” should be qualified appropriately to make clear whether the comparison is based on price alone, or on other factors.
3. Electronic Arts Ltd, 29 May 2013
An online ad for the new SimCity videogame stated “10/10 EUROGAMER.SE.”
Complaint/Decision
The complainant argued that the ad was misleading as the “10/10” score was based on the reviewer playing the video game pre-launch on an internal network and that the actual experience of the game would be significantly different.
Electronic Arts Ltd (EA) said that the ad was not misleading and they pointed to the Eurogamer.se website, which still referred to the “10/10” score. EA also asserted that they did not score the game itself, and that any member of the public could verify the score by using the relevant source that was provided on the website.
The ASA did not uphold the complaint.
The ASA found that that review score on Eurogame.se was accurate. Further, it noted that the same website indicated that the game was tried on an internal network. The ASA accepted that the game required the use of the internet and that the review on the internal network may not reflect a gamer’s experience post-launch. Nonetheless, the ASA held that the average consumer would expect a review to be based on the game when functioning properly, despite any occasional network problems that they may encounter. In light of this conclusion, the ASA held that the ad was not misleading.
FASHION
4. J D Williams & Company Ltd t/a Figleaves.com, 22 May 2013
This complaint related to two outdoor posters on the London Underground. The first featured a blonde woman wearing a red bra and knickers with the phrase “LIKE ME?” in large letters across the poster, with “VOTE FOR ME” in smaller letters. The second featured a man in red boxer shorts with the same wording as the first poster printed across it.
Complaint/Decision
The ads received three complaints.
(i) Three complainants challenged whether the ad containing the image of the woman was unsuitable for display where children could see it, and one of these complainants also challenged whether the ad containing the image of the man was unsuitable for display where children could see it;
(ii) Two complainants challenged whether the ad containing the image of the woman was offensive because they believed it degraded women by portraying them as sexual objects.
In relation to the first complaint, J D Williams & Company Ltd (Figleaves) argued that the ads were subject to a placement restriction which kept them 100m away from schools. The ads only appeared alongside escalators on the Tube or opposite Tube train platforms.
Figleaves also believe that the ads were tasteful and not salacious or suggestive, therefore they did not believe that the ads were irresponsible or offensive.
The ASA did not uphold these complaints in relation to unsuitability for display. They said that the ads were for an underwear company and as such the ads would feature a model wearing underwear. The ads did not show nudity and the images were relevant to Figleaves.
The ASA decided that the strap line “LIKE ME?” was obviously linked to Facebook, and that most adults would be familiar with the concept of “liking” brands on Facebook. Facebook requires account holders to be over 13 years of age and they perhaps would not understand the connection, however, this strap line was unlikely to be seen in the eyes of children as sexual in nature.
Further, the placement away from schools meant that the placement of the ads was not socially irresponsible.
With regards to the second complaint, The ASA again did not uphold the complaint. They did not consider the adverts to be overtly sexual. The ASA considered that the image alongside the recognisable strap line “LIKE ME?” was unlikely to be seen as portraying women as sexual objects to be desired. The ASA concluded that the ad was unlikely to cause serious or widespread offence.
This decision shows that the ASA will consider steps taken by advertisers to ensure their ads do not fall within breach of the CAP code when looking at complaints.
This is the latest in a range of adjudications for lingerie. The ASA accepts that these ads will feature models in underwear, but care still needs to be taken with the portrayal of women in the ads. See, for example, Marks and Spencer 30 November 2011.
The ASA have used this as a basis to make the decision that the ads are not unsuitable for display to children and are not offensive in nature.
FOOD & DRINK
5. Hi Spirits Ltd, 1 May 2013
A Facebook page for Fireball Whiskey, contained various images including a young woman pouring alcohol from two bottles, a young man lying facedown on a bed, four teddy bears with the advertiser’s logo, three young women drinking alcohol, and a poster with the text: “TAKE A SHOT AND IGNITE THE NIGHT”. The final ads were in the form of a Facebook status update; the first encouraging people to share their Fireball stories to win freebies and the second encouraging students to apply for Fireball freebies during exams and coursework.
Complaint/Decision
The Youth Alcohol Advertising Council (YAAC) challenged whether the advertisements were socially irresponsible because they promoted excessive drinking, and featured people who appeared to be under 25. The YAAC also complained that the ads were likely to appeal to people under 18 and suggested that the product was capable of changing moods and enhancing mental capabilities.
Fireball responded that the ads did not promote excessive drinking due to the singular shot referred to in “TAKE A SHOT”, which constituted less than one unit of alcohol. Fireball also referred to the fact that the encouragement to share Fireball stories did not specify that they had to be ‘drunken’ stories. Fireball stated that users had to be at least 18 years old to follow its Facebook page and added that it continually monitored and removed followers whom it doubted fulfilled the age criteria. Fireball also said that removing responses uploaded by its Facebook followers would be tantamount to censorship.
Not surprisingly in view of the images in question, the ASA upheld the complaint in relation to the images promoting excessive drinking due to the depiction of the young woman handling alcohol irresponsibly by pouring large quantities (thereby not implying simply ‘a shot’) and the young man who appeared to have passed out from his intoxication. Whilst the Facebook status asking for ‘Fireball stories’ did not ask for ‘drunken’ stories, the responses it solicited involved instances of heavy drinking, thereby glorifying intoxication. The complaint in relation to the second Facebook status relating to students drinking Fireball was also upheld as a breach of the Code, as the ASA took the view that it insinuated that the drink could have a positive effect on the consumer’s mental abilities. Additionally Fireball had supplied no evidence of the young people in the advertisement being over the age of 25.
In relation to the complaint that the ad was likely to appeal to under-aged people, the ASA acknowledged that whilst the teddy bears may be appealing to children, when considered in conjunction with the overall context of the ad and the age-gate mechanism, it was unlikely to appeal to those under 18.
This decision follows the ASA’s decision to complain itself about an ad for a drinks promotion run by NoCurfew Events last month that was also aimed at students. Both adjudications demonstrate the strict approach that the ASA adopts to the sensitive issue of encouraging excessive alcohol consumption by young people and highlights the importance of being able to provide evidence that individuals featuring in alcohol ads are over the age of 25.
6. Nature Delivered Ltd t/a graze.com, 15 May 2013
A TV ad for a mail order snack service showed an open box with four compartments and each was shown being filled repeatedly with various types of snacks to customers.
Complaint/decision
One complainant who had ordered the product challenged whether the ad was misleading as it significantly exaggerated the quantity of snacks that were sent.
Graze said that they had filled each compartment with the actual quantity of product that consumers receive in reality. Graze also highlighted that the ad had been broadcast since December 2011 and that they had received no prior complaints.
The ASA decided not to uphold the decision. It based this decision on the fact that Graze had measured the quantities to ensure that they were representative of what consumers receive. The ASA considered that, when they examined a Graze box as it was received, it did not consider that the ad significantly exaggerated the quantity of snacks it contained. Therefore the ad was not misleading.
Although complaints are often received about ads featuring products that look significantly bigger than the product being sold, in this case Graze were able to show that the same quantities were used for the ad as are shipped, which rightly led to the ASA not upholding complaints of the ad being misleading in nature.
7. Yakult UK Ltd, 15 May 2013
A TV ad for Yakult showed an animation bottle performing various exercises. The voiceover stated “Yakult had been enjoyed for 75 years. At Yakult, we appreciate the importance of regular exercise routines…” and “…Yakult’s unique bacteria that are significantly proven to reach the gut alive.”
Complaint/Decision
There were two complaints.
(i) The first challenged whether the claim that “Yakult’s unique bacteria are scientifically proven to reach the gut alive” could be substantiated; and
(ii) the second was that the presentation of the ad implied a general health claim, which is not compliant with the BCAP Code.
(i) In relation to the first complaint:
Yakult argued that the claim relating to bacteria reaching the gut alive is a statement of fact and a product characteristic. They had submitted a dossier of evidence to Clearcast, who approved the claim. Clearcast had also sought advice from a nutritional consultant who assessed the information provided by Yakult and then agreed that it showed that the bacteria reached the gut whilst still alive.
The ASA decided not to uphold the complaint. They placed an emphasis on the studies that Yakult had submitted. The ASA decided that the body of evidence submitted indicated that significant numbers of viable bacteria survived the transit to the gut after the consumption of products such as Yakult. Therefore the ASA concluded that the claim had been substantiated.
(ii)Yakult argued that the ad was designed and approved on the basis that it did not convey any health claims, and that the intention was to convey generic comments about lifestyle, alongside specific information about the product. Yakult further argued that the images of the bottle performing various sports were reflective of general public interest in sports at the time of airing the ad, and did not convey any health claims.
Yakult argued that the overall presentation of the ad did not imply that the product had any effect on health. The scenes of exercise merely suggested that an active lifestyle was conducive to keeping healthy.
The ASA pointed out that non-specific health claims for food products must be accompanied with a specific health claim authorised on the EU Register of health and nutrition claims for foods.
The ASA came to the conclusion that, considering the references to sport, regular exercise and keeping a balanced life, alongside the claim about bacteria reaching the gut alive, the ad gave the general impression that there was a heath advantage to drinking Yakult. Therefore, as the ad did not contain a relevant authorised health claim, it had breached the Code.
On 25 May 2012, Commission Regulation (EU) No 432/21012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children's development and health, was published in the Official Journal of the European Union (EU). The Regulation entered into force on 14 June 2012. Now the Regulation has entered into force, it is anticipated that more complaints will arise in relation to general health claims made in ads and whether they are on the EU Register.
This decision emphasises the importance when making general health claims in an ad and the need to also show a specific health claim alongside it. This decision also reflects that the ASA will look at the general presentation of the ad as a whole and assess whether it makes such a general claim rather than placing weight on circumstances surrounding that ad, such as references to the Olympics in this case.
8. Agriculture and Horticulture Development Board t/a lovepork.co.uk, 22 May 2013
A national press ad promoting Red Tractor approved pork headlined “Give a fork about your pork”. Text below the heading described Red Tractor pork and featured an image of two workers pushing a giant fork.
Complaint/Decision
Three complaints challenged whether the use of the word “fork” was offensive because it was a word play of the word “f*ck”.
Lovepork.co.uk stated that it had received Clearcast’s approval to air the campaign phrase as a VOD ad on Channel 4’s On Demand service. It added that the ad had been displayed on banners during a football World Cup qualifying match and had been published in several national newspapers. Lovepork.co.uk stated that the phrase was intended to persuade consumers to put “thought” into their pork purchases and the word play on “fork” referred to the word “thought”, not “f*ck”.
The ASA did not uphold the complaint and noted that Clearcast had provided a view on the ad, although this view was advice only. Whilst many readers would read “fork” as a word play on “f*ck”, the ad did not expressly use explicit language, and therefore did not cause serious or widespread offence, and did not breach the Code.
The past few months have seen different complaints in relation to ads featuring expletives and the ASA last month found Urban Outfitters’ use of the word “sh!t” in an email unlikely to cause serious or widespread offence as the email had been targeted. The ASA acknowledged that the use of the word “fork” in lovepork.co.uk’s ad could be interpreted as a reference to either “thought” or “f*ck” but still did not uphold the complaint. This is in contrast to a similar double-meaning issue in an adjudication also last month in relation to Pussy Drinks Limited. The ads attracted 156 complaints and the ASA determined the double meaning of the word Pussy as likely to cause widespread offence.
HEALTH & BEAUTY
9. Unilever UK Ltd, 1 May 2013
17 complaints were filed in relation to various ads on Video on Demand (VOD), on Facebook and YouTube, and cinema screens for Lynx shower gel. The ads were similar in fashion and their scenarios were based on the premise that people have certain “types” to whom they are attracted and that people tend to adjust their behaviour to some extent in order to impress their partner. The ads identified different “types” of women, such as the “party girl” or the “brainy girl”, whose partners would need to impress and/or satisfy; it was implied that the Lynx gel could play a role to this end.
Complaint/Decision
In total, 17 members of the public who watched the ads filed complaints with the ASA, arguing that:
(i) The ads were offensive in light of the fact that they were sexist, they objectified women and were demeaning.
(ii) Four out of the 17 complainants considered the ads offensive, as they portrayed men as sexually obsessed, manipulative and devious.
In response to the first complaint, Unilever said that the public would expect to watch and be comfortable with ads of this style and theme as the company has successfully used this kind of advertising for a long time. The company also said that the ads were widely acceptable by the audience, as only 17 complaints were received, although there had been more than 29 million views of them. In addition, Unilever argued that the ads were appropriate for their target group, that is young people, who would understand that the depiction of the various “types” of women is an oversimplified representation of women with particular interests, rather than a realistic representation. They also said that the overall feel of the videos was rather cartoonish and thereby unlikely to cause serious or widespread offence. In response to the second complaint, Unilever argued that men were depicted in a highly exaggerated and humorous way and that they were not shown as being sexually obsessed, manipulative or devious.
The ASA did not uphold any of the complaints.
The ASA found that the “typology” of women was based on their interests and that in the context of dating, their prospective partners may sometimes adjust their behaviour in order to impress them. Therefore, the ads, according to the ASA, however distasteful they may be, reflect reality and that it is unlikely that they would cause serious or widespread offence to the audience. The ASA also found that the ads commented on the dynamic of a couple’s relationship and contained several sexual innuendos, yet in a humorous way. Thus, the ASA found no breach of the CAP Code and did not uphold the complaint.
As for the second complaint, the ASA held that the ads did not portray men in a negative light. The ASA said that despite the fact that men were portrayed as trying to impress their partners with the expectation of getting sexual rewards, the overall feel was humorous. Thus, the ads were found not to be likely to cause serious or widespread offense and the second complaint was also not upheld.
This is the fifth complaint made to the ASA against a Lynx ad. Of note is that three of these complaints have not been upheld and the other two have only been partly upheld. The ASA in making these decisions, has taken note of the light-hearted, humorous and unrealistic nature of the ads in question, therefore concluding that they are unlikely to cause widespread offence.
10. Indeed Laboratories Inc, 15 May 2013
A press ad for “nanoblur” was headed “nanoblur GET FLAWLESS SKIN FOR THE HOLIDAYS! WITHOUT ADDITIONAL MAKEUP WITHOUT PROCEDURES WITHOUT PHOTO RETOUCHING”. This was accompanied by a picture of a woman’s face, half of which was labelled “TREATED”, and the other half labelled “UNTREATED”.
Complaint/Decision
The complainant challenged whether the image was misleading and whether the implied effect of the product could be substantiated.
Indeed Laboratories Inc said that the image had been running in their advertisement since 2009 and the effects of the product could be substantiated. They said that the photo had been taken in real time following the application of “nanoblur” to one half of the model’s face. They also supplied signed assurance from the production company stating that the image had not been digitally manipulated. They did concede that the model was wearing lip gloss, lip liner and eye shadow, but no foundation or facial skin product. They also provided photos of the product on another model’s face.
The ASA did not uphold the complaint. After examining the photo evidence, it concluded that the model in the photo did not appear to have any large blemishes on the “untreated” side of the face, and the overall impression was that the product gave a more even skin tone. Other photos provided also showed that this was a principal effect of the product.
The ASA based their decision on the fact that the production company had provided a signed assurance. Therefore the ASA was satisfied that the images were not digitally altered and in line with what a cosmetic cream could achieve. They concluded that the image was not misleading and claims surrounding the effect of the product could be substantiated.
This is another decision for a health and beauty product where the ASA has not upheld a complaint on the basis of a product’s advertised efficacy. The ASA placed emphasis here on the assurance that the photos provided as evidence had not been altered digitally. This decision shows that where the effects of a cosmetic product are not overly drastic, photo evidence and proof that the images are a true reflection of the reality, then claims that an ad is misleading will not be upheld.
FINANCE
11. PDB UK Ltd t/a Cash Lady, 8 May 2013
A TV ad for www.cashlady.co.uk, a payday loan provider, featured Kerry Katona describing the payday loan service as “an easier way to get a loan”. She explained how it is fast and instantaneous. On screen text stated that terms and conditions apply and that the loan was subject to approval, along with details of the APR. This adjudication attracted a considerable amount of media attention.
Complaint/Decision
There were four complaints:
(i) 29 complainants complained whether the ad was irresponsible as it focused on Kerry Katona’s well known financial troubles and encouraged people in a similar situations to borrow money;
(ii) one complainant challenged whether some of the on-screen text was blurred and unclear;
(iii) the ASA challenged whether the APR was sufficiently prominent; and
(iv) the ASA also challenged whether the ad was misleading and irresponsible because it promoted itself as an alternative to banks, whilst offering an APR in excess of 2000%.
(i) In relation to the first complaint:
PDB UK Ltd t/a Cash Lady (the Cash Lady) argued that the ad made no reference to bankruptcy or other financial crisis. They said their loans were not meant for long-term financial indebtedness and were limited to £300, and therefore the ad did not imply that the loans would be suitable for addressing issues such as bankruptcy.
Clearcast disagreed that the ad focused on Kerry Katona’s financial issues or that it encouraged people in similar situations to take out a payday loan and that the ad made no judgement as to the sorts of people who should or should not take out payday loans.
However, the ASA upheld the complaints. They considered that viewers would understand from the ad that Kerry Katona had sufficient personal experience to be able to offer financial advice to those who were in financial difficulties. The ASA held that Kerry Katona’s bankruptcy was common knowledge and thus those in a similar financial position may have inferred from the advice given, that the Cash Lady loan was advisable for those already having financial difficulties.
No caveats were added to the dialogue used in the advert to state that the loans were intended for short-term stop gaps between pay days, nor that they were not intended as a more immediate solution for severe financial problems. Further, the description used to portray the slow and time consuming procedures used in banks served to signify to viewers that the Cash Lady was a more desirable way to solve financial problems.
Additionally, the ASA thought the use of a celebrity endorsing the product would cause some viewers to believe that the payday loan would help fund a celebrity lifestyle.
The ASA concluded that the ad breached the BCAP Code in relation to social responsibility.
(ii) Clearcast concluded that the text was checked and complied with all of the requirements for size, duration of hold and legibility. In support of this, the ASA did not uphold the complaint that the text was too small and blurry; they found that the information was presented in white on a dark background and for a sufficient period of time.
(iii) The Cash Lady stated that OFT guidance confirmed that the APR information is said to be shown more prominently if the viewers’ attention is drawn to it more than other items of information on screen. The Cash Lady went on to say that the representative APR in the ad was larger than the other wording on screen and that further, it was on screen longer for longer than the recommended guidance stated. Clearcast supported the Cash Lady as the APR information was twice as big as other information in the ad.
The ASA however disagreed and upheld the complaints. They consulted the OFT who confirmed that the ad contained trigger information – credit being made available to those who might otherwise have a restricted access to credit – and therefore the ad must contain a representative APR. Although the ASA noted that the APR was in a larger font compared to other written information, they also noted that Kerry Katona did not mention the APR, and therefore concluded that the APR was not more prominent that the words she was stating.
(iv) The Cash Lady argued that the comparison they were making in this case was to the length of time it could take to get a loan and that the ad did not imply that the APR was comparative to bank loans.
The ASA upheld the complaint based on the voiceover in the ad which juxtaposed the reference to filling in forms against the ease of applying for a Cash Lady loan. The ASA said that this made the product a more desirable method of obtaining credit. The ASA said that in this way the ad was irresponsible for sending out the message that it was more convenient to use Cash Lady than a bank.
Payday loans are under constant scrutiny by the ASA; this is the fifth decision in relation to a payday loan company in 2013. The ASA decision in last month’s Snapshot did not uphold a complaint that the onscreen text was unclear and not displayed for a long enough period of time. The ASA did not uphold the complaint. In this decision there was also no issue with the display of graphics. However advertisers should also take note not only of the size and clarity of their graphics when highlighting terms and conditions, but also not to invalidate this by using a conflicting voiceover message.
12. Decidebloom Ltd t/a stoneacre.co.uk, 29 May 2013
A TV ad for a car dealership showed four teenage girls moving to music in their seats of a moving car.
Complaint/Decision
The complainant challenged whether the ad was harmful and irresponsible as they believed that it encouraged young people not to wear seat belts.
Clearcast stated in support of Decidebloom Ltd that it would never have approved the ad in question if it had not complied with section 20 of the BCAP and the Highway Code. It said that the driver was clearly wearing a three-point seatbelt that was firmly in place, although it was slightly obscured by hair and the fact the ad was shot at night so it was dark. The passenger in the back was also clearly wearing a seat belt, although it may have slipped down her shoulder due to movement. However, Clearcast said that this did not signify a “casual” attitude to wearing seatbelts. Clearcast also submitted a document from an advertising agency which included stills that they believed demonstrated that the ad was neither harmful nor irresponsible.
The ASA however, decided to uphold the complaint. It did note that the stills provided showed that the driver was wearing a seat belt. However, it concluded that as the belt was mostly obscured by hair that it was not obviously visible that the girl was wearing one. It was noted that the passenger was wearing a seat belt that had slipped off her shoulder. The ASA felt that both images were likely to been seen as encouraging or condoning young people not to wear seat belts or to wear them in a way which was harmful, particularly as the ad was for a car dealership.
This decision is in line with the ASA’s very strict policy and lack of tolerance for motoring ads which might encourage dangerous behaviour.
It is similar to a decision of the ASA in June 2008 against Unilever Ireland Ltd, which showed people in a car not actually wearing any seat belts and where the vehicle was in fact stationary but it appeared like the vehicle was in motion. The ASA also upheld complaints in this case.
In both cases, although there were arguments from the advertisers that the ads were not irresponsible, in the current case seat belts were in use and in the Unilever Ireland case the vehicle was stationary, both decisions reflect that it is the appearance of the ad that the ASA will take into account when deciding if there is any possibility that the ad will encourage careless behaviour, even where the car is not an integral part of the ad or is not specifically relevant to the ad in question.
TRAVEL & TOURISM
13. Archant Life Ltd t/a Great British Life, 1 May 2013
This complaint related to a sales promotion on
www.greatbritishlife.co.uk headlined “WIN A WEEKS LUXURY FAMILY HOLIDAY”. The terms and conditions below stated that the holiday could be taken anytime, excluding school and bank holidays.
Complaint/Decision
The complainant complained via the Institute of Promotional Marketing and challenged whether the promotion had been conducted fairly because the family holiday could not be taken during school holidays.
Archant Life Ltd argued that the terms and conditions of the competition were displayed clearly and in good proximity to the competition question. They said they made it clear that the prize excluded school and bank holidays. However, they did say that in the future they would not use the term “family” with reference to anything which excludes school holidays.
The ASA upheld the complaint, based on the fact that consumers would infer from the claim “family holiday” that the holiday would be available to families and therefore available to take during school holidays. The ASA concluded that the promotion was misleading in that the terms and conditions contradicted the headline claim.
This provides an example of where even though wording included made the exclusion clear, this was still held to be a contradiction of the headline in a promotion rather than providing clarification.
14. Thomas Cook Tour Operations Ltd, 15 May 2013
A TV advertisement for the holiday provider set in a sunny location depicted an adult man letting the air out of a coach tyre whilst several holiday makers on the coach, both adults and children, looked on and expressed concern, with a voice-over stating “Holidays you won’t want to return from”. The advertisement had been cleared by Clearcast with an ex-kids restriction.
Complaint/Decision
The advertisement received a total of 118 complaints, the majority of which where focused on the irresponsible nature of the ad in encouraging criminal behaviour which could lead to a road traffic accident, and possibly cause harmful emulation among children.
Thomas Cook defended the ad as being ‘light-hearted’ and it stated that the comical context of the scene was clear to viewers. Clearcast agreed that the concern expressed by the other holiday-makers at the act of letting the air out of the tyre indicated that the actions were improper and therefore any wider interpretation of the action would not be reasonable. Thomas Cook also stated that the physical strength and equipment that would be required to copy the act rendered it highly unlikely to be copied by a child. In addition Thomas Cook suggested that the coach’s stationary position and the attention paid by the driver to the act ensured there was no possibility of a traffic accident. As around 87% of adults in the UK had viewed the ad, Thomas Cook argued that 118 complaints was a relatively small amount and therefore represented a very small minority of viewers.
The majority of the complaints were not upheld. The ASA found that the shock of the fellow holiday makers indicated that the ad did not encourage criminal behaviour. It also took the view that the act of removing the tyre’s valve with just a pair of pliers was unlikely to be effective in deflating a highly pressurised bus tyre and therefore unlikely to be successfully replicated. The ASA also took the view that there was no chance of a road traffic accident due to the coach’s stationary position. The final scene featuring the same man jumping into a swimming pool indicated that the bus had clearly remained where he was. The ASA, however, upheld the complaint in relation to child safety due to the ad’s focus on behaviour which could be dangerous for children, particularly teenagers with access to pliers and who were more readily able to emulate the behaviour.
Whilst not upholding the majority of the complaints and acknowledging that the ad showed a fantastical situation unlikely to lead to emulation, the ASA adopted a very strict approach to the issue of potential harm to children. This decision can be contrasted with two ASA decisions in March 2013 in relation to children potentially emulating behaviour seen in ads, both of which were not upheld, at least in part, on the basis that the ads were unlikely to be witnessed by children. The Thomas Cook ad was given an ex-kids restriction so it is therefore somewhat surprising that the ASA took such a different view in this instance. This decision nevertheless serves as a reminder that the issue of children emulating scenes from ads is extremely sensitive and should be approached with great caution.
LEISURE
15. LA Fitness Ltd, 1 May 2013
An ad via text message stated that gym membership was available “from only £16.00 per month” and a different ad on company’s website stated that a 50% discount applied to membership.
Complaint/Decision
With respect to the text message, two complainants challenged whether the ad was misleading as it did not indicate that the “from” price only applied to the first month of a 12-month contract. Further, it did not make clear that an initiation fee was also payable. As for the second ad, four complaints were filed, challenging whether the ad was misleading, as it did not make clear that the discounted price only applied to the first month of a 15-month contract.
In relation to the complaints about the first ad LA Fitness Ltd stated that due to space limitations in text messages it was unable to communicate terms of the offer to the recipients. LA Fitness also emphasised that the ad contained a link to the landing page which it suggested made all terms of the offer clear. In relation to the ad on the website, LA Fitness argued that the offer applied to a specific type of membership which was discounted by 50% for 12 months and that relevant information could be found in its leaflets and on its website.
The ASA upheld both of the complaints. The ASA held that the text message ad was misleading as consumers would be unable to make an informed decision about whether to purchase membership. The ad did not make it clear that the discounted price only applied to the first month of a 12-month contract or that a joining fee was also payable. Similarly, the ASA concluded that the ad on the website was also misleading as the discounted price only applied to a specific membership type but the ad did not make it clear that other membership types were not eligible for the same discounts.
This outcome demonstrates the ASA’s strict approach to the qualification of price claims. The ASA has recently upheld complaints where important information was contained in terms and conditions, for example in February 2013 in relation to Phones4U and Vodafone. It is therefore not surprising that the ASA upheld this complaint where the price claim in the text message ad was not qualified at all.
16. LivingSocial Ltd, 15 May 2013 and MyCityDeal Ltd t/a Groupon, 29 May 2013
Online offer services LivingSocial and Groupon both featured in this month’s adjudications. A complaint in relation to a LivingSocial hotel savings offer was not upheld as the ASA took the view that the savings advertised had been substantiated. The ASA upheld a complaint that was made about a Groupon offer that included a “Burger lunch” but did not state that the lunch would only be provided at 2pm. Groupon features relatively frequently in the ASA’s adjudications and is often subject to complaints that the savings advertised in its offers are misleading and exaggerated. The ASA’s decision to not uphold the complaint against LivingSocial highlights the importance of being able to substantiate such saving claims and demonstrates that where the advertiser is able to do so, the ASA will find in its favour and not uphold complaints.
OTHER
17. Doorknobs Ltd, 15 May 2013
A directory ad for a letting agency claimed that the agency was the “No 1 Lettings Agent in the Tunbridge Wells area” and “No 1 for taking the most Landlord Instructions and No 1 for Letting the most Properties every month”.
Complaint/Decision
TW Property challenged whether the claims were misleading and could be substantiated. Doorknobs Ltd provided evidence from Rightmoveplus, a facility that allowed performance comparisons to be made against other agencies, which indicated that Doorknobs Ltd had consistently been ranked first in the TN1 TN2 TN3 and TN4 postcodes over the previous three years, which it argued substantiated its ‘No 1’ claim.
The ASA upheld the complaints due to the lack of robust evidence. The ASA took the view that data provided was not sufficient to substantiate the ‘No 1’ claims as Rightmoveplus was not used by all agencies and did not necessarily accurately represent all the properties available in the area. Additionally, Rightmoveplus’s small print stated it made no warranty as to the suitability of its data for any purpose.
The ASA always looks very closely at “number one” type claims and on this occasion took the view that the evidence Doorkobs Ltd had provided was not sufficiently robust. Supporting documentation must always back up specific claims being made and advertisers should ensure that data relied on to substantiate such claims fulfils ASA requirements. The ASA’s decision in March 2013 in relation to a “number one” type claim by M&S provides useful guidance on the level of evidence expected by the ASA: the comparison methods should be seen to be comparatively fair in the eyes of the consumer and the information provided to the consumer should include all information necessary for the consumer to make their own comparison.
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