ASA Adjudications Snapshot - November

INTRODUCTION

This summary provides a selection of the most interesting ASA adjudications in November and highlights the key issues considered in those adjudications. Of interest this month is the Cryton Ltd adjudication, Cryton engaged a third party marketer to send out marketing communications on its behalf. The ASA concluded in this instance that although Cryton might not have been directly responsible for the text messages sent, it did receive the benefit of having consumers directed to a website under its control, and it therefore had a duty to ensure that any party employed to promote that website did so in accordance with the CAP Code. This month the ASA also considered the use of “Lowest Price Guaranteed” claims in the Express Pharmacy Consultations Ltd adjudication and advised that in order to make such a claim promoters must use a price monitoring and adjustment policy to ensure that such claims can be supported. Further, a feature of this month’s adjudications was the early withdrawal of a promotion; Kokoba withdrew a promotion of discount codes as they discovered that orders were being made by individuals who were not intended recipients of the discount code. The ASA considered the possibility of the Kokoba discount code being published online and therefore being made available to a wider audience than intended was not unforeseeable and that the promoter could reasonably be expected to have made provision for that eventuality before the promotion went live. The ASA continues to maintain a strict application of the CAP Code to promotion periods, namely that closing dates should not be changed unless circumstances outside the reasonable control of the promoter made it unavoidable. Further, this month’s adjudications further focus attention to telecommunications companies who advertise “unlimited” broadband packages. This month sees BT fairly advertise their package as ‘unlimited’ as they do not apply a traffic management policy or any restrictions on data usage, unlike Virgin Media in last month’s snapshot.

ADJUDICATIONS

BUSINESS

1. Intellectual Property Agency Ltd, 6 November 2013 (an unsolicited direct mailing regarding a trademark renewal service was misleading because it was not obviously a marketing communication)

2. Bainbridge Simpson Ltd, 6 November 2013 (a direct mailing about a council tax reduction service misled consumers by not stating that a fee free route existed or that applying for a reclassification could result in an increase in council tax. The ASA considered both pieces of information material)

FOOD AND DRINK

3. Kentucky Fried Chicken (Great Britain) Ltd t/a KFC, 20 November 2013 (A TV ad for a KFC chicken meal included small print that “prices may vary” but it was unclear which prices this qualification applied to)

4. Channel 5 Broadcasting Ltd, 20 November 2013 (The ASA assessed whether an alcohol ad was inappropriately scheduled around programmes which may have a ‘particular appeal’ to under 18s)

5. Magicfly Ltd t/a Taking Liberties, 27 November 2013 (a flyer dispatched in a student residential hall advertising a student event encouraged excessive drinking and breached the Code)

6. Beverage Services Ltd t/a Schweppes, 27 November 2013 (a promotion for a ‘free’ jug when consumers purchased 3 promotional packs of Schweppes did not state clearly that postage must be paid by the consumer.

FINANCIAL

7. Cryton Ltd t/a urquickcash.com, 13 November 2013 (Although a third party marketed on Cryton’s behalf, it received the benefit of having consumers directed to a website under its control so had a duty to ensure that the marketing communications were in accordance with the Code)

8. Cash On Go Ltd t/a Peachy.co.uk, 27 November 2013 (An ad for payday loans implied that it was the only company with which multiple repayments could be made which was misleading and the ASA noted that the Representative APR was not stated sufficiently clearly in the ad to be compliant with the Consumer Credit (Advertisements) Regulations 2010)

HEALTH AND BEAUTY

9. Procter & Gamble (Health and Beauty Care) Ltd, 6 November 2013 (Claims made in an ad for Oral B Pro Expert toothpaste that one in two people have gum problems were substantiated and, as the statements were in fact accurate, the ad was not misleading.)

10. Coty UK Ltd, 13 November 2013 (The ASA assessed audience indexing data to conclude that ads for Cavalli perfume, which included moderately sexual content, were inappropriately scheduled by ITV around programmes which appeal to children)

11. Procter & Gamble (Health and Beauty Care) Ltd, 20 November 2013 (Claims made in a TV ad for Oral-B 3D White Brilliance toothpaste testifying to the whitening effect of the product was substantiated by evidence from clinical trials)

12. Express Pharmacy Consultations Ltd t/a Express Pharmacy, 27 November 2013 (Advertisers should only use a “Lowest Price Guaranteed” statement if they should use a price monitoring and adjustment policy to ensure the claims could be supported)

HOUSEHOLD

13. Procter & Gamble UK, 20 November 2013 (An ad for Ariel stain remover was assessed and found not to be misleading as the basis of the claims made, namely that it had 3 x stain removal power, were clearly made in the ad)

LEISURE

14. Discovery Communications Europe Ltd, 13 November 2013 (A promotion for a holiday to Mallorca for four people was administered unfairly as it targeted families but effectively restricted the winning family from taking the holiday unless they removed their children from school during term time)

RETAIL

15. Charles Tyrwhitt LLP, 6 November 2013 (a brochure for Charles Tyrwhitt clothing advertised “new” ranges for summer when in fact the items had been sold previously online at a higher price)

16. Kokoba Ltd, 27 November 2013 (An offer for discount codes was withdrawn once the company realised that many orders were being made by individuals who were not intended recipients of the ‘unique’ discount codes. This was not an unforeseeable event and so the withdrawal breached the Code)

TELECOMMUNICATIONS

17. MTV Networks Europe, Starbucks Coffee Company UK Ltd, 6 November 2013 (The ASA decided that a competition run by this company was administered fairly and that in this instance discounting votes was consistent with the competition terms and conditions)

18. British Telecommunications plc t/a BT, 13 November 2013 (an ad for BT broadband package was advertised as “unlimited”. Because BT did not operate a traffic management policy and as the data usage was not restricted the ASA concluded it was fair to call the service unlimited)

19. Telefonica UK Ltd t/a O2, 20 November 2013 (A promotion for a phone app gave away a free chocolate bar. The ASA concluded that Telefonica had estimated the likely response and stock levels well and that this promotion had been fairly administered)

BUSINESS

1. Intellectual Property Agency Ltd, 6 November 2013

An unsolicited direct mailing for a trade mark renewal service was headed “Reminder” and featured the company name “Intellectual Property Agency Ltd” and corresponding logo. The mailing included a form which stated “Your trade mark is about to expire, expiry date: 18/12/2014 Your trade mark registration is valid for ten years and may subsequently be renewed for ten years at a time. Sign and return this document in order to renew your trade mark”. The ad provided details of how to renew a trade mark (along with the inherent risks of not renewing it) and provided details of the renewal costs.

Complaint / Decision

Two complainants challenged whether the mailing was misleading because it was not clearly a marketing communication.

The ASA acknowledged that the mailing made clear that its purpose was to remind trade mark holders that their trade mark was due for renewal and that by signing and returning the document they were agreeing that Intellectual Property Agency Ltd (IPA) would carry out the renewal process. The ASA noted that the terms and conditions on the reverse of the document stated that it acted as a reminder and that recipients could renew their trade marks through their own representative. The document also stated that IPA was a private company and gave its address.

However the ASA considered: (i) the prominent use of the word “Reminder” and “Order” on the front of the document; (ii) alongside text “Your trade mark is valid for ten (10) years and may subsequently be renewed for ten years at a time. Sign and return this document in order to renew your trade mark”; and (iii) the layout of the form, to imply that there was an existing relationship between the recipient and the sender and that this “reminder” was a follow-up document to previous correspondence relating to the trade mark. No such ongoing relationship existed. The ASA also had concerns that the use of “agency” in the company title, the domain extension “org” in its web address and the abbreviation of the company name to “IPA” may have resulted in recipients who were unfamiliar with the trade mark renewal process assuming that the mailing was from an agency associated with the Intellectual Property Office (IPO), being the entity which is responsible for the registration and renewal of trade marks. In fact, relationship exists between the IPA and IPO.

The ASA upheld this complaint concluding that the ad was misleading because it was not clearly a marketing communication. As we saw with the two Damartex UK Ltd adjudications in the September snapshot the ASA will consider the overall impression created by a promotion in its assessment as to whether a consumer would understand the ad to be a marketing communication. The ASA will take a particularly strict view where an association with a government entity is implied and consumers are thereby misled as to the advertiser’s official status.

2. Bainbridge Simpson Ltd, 6 November 2013

A direct mailing from Bainbridge Simpson Ltd, for a council tax reduction service, stated, “We have identified that your property is likely to be in the incorrect council tax band. This would mean that the amount of Council Tax you currently pay is too high and should be reduced. Your property is currently in band C with a Council Tax bill for this year of approximately £xxx; however, we believe that the property should actually be in band B with a Council Tax bill of £xxxx. This means you are currently paying £163 too much every year. We are writing to you because one or more of your neighbours from [address] has already been reclassified from a band C to a band B meaning they now pay less than you. We believe we could lower your future Council Tax bills and secure you a refund”.

Further text stated, “We would be happy to look into this for you on a ‘fee only if successful’ basis…Should we be successful, our fees on this matter are calculated at 30% + VAT of your refund (equal to 36% of your refund overall based on the current VAT rate)”.

Complaint / Decision

A Trading Standards Office challenged whether the mailing was misleading because:

1. it omitted to explain that Council Tax bills could increase as a result of applying for reclassification; and

2. consumers could challenge Council Tax classification themselves without paying a fee.

1. The ASA upheld this complaint. It acknowledged that no fee would be payable if Bainbridge Simpson (BS) could not in fact reduce a Council Tax bill. Nevertheless it considered that the wording of the mailing created an overall impression that BS had carried out an initial investigation prior to contacting a consumer, when in fact BS only investigated a consumer’s case once it received a completed questionnaire. The ASA considered consumers would understand that BS would only have contacted them if a Council Tax reduction was very likely, and would not envisage that their Council Tax could rise or that their case would not be taken forward due to the possibility of their Council Tax rising. The ASA concluded that informing a consumer that their Council Tax could rise was material information required for consumers to make an informed decision. As the mailing omitted this information the ASA concluded that it was misleading.

2. The ASA acknowledged that BS provided contact information for the Valuation Office Agency (VOA) in the mailing and that additional information was provided to consumers who contacted BS, including as to contacting the VOA themselves. It also noted that BS imposed fees if an investigation was successful, which would mean that the value of any Council Tax refund would be reduced. The ASA considered consumers were unlikely to be familiar with challenging Council Tax Banding or be aware that it could be done without a fee. Therefore, the ASA concluded that a fee-free route was material information which should have been included in the mailing to ensure consumers could make an informed decision. The omission of this information led the ASA to conclude that the mailing was misleading and to uphold the complaint.
Advertisers who charge a fee for a service should be careful to inform consumers of a fee-free alternative if one exists, to enable consumers to make an informed decision.

FOOD AND DRINK

3. Kentucky Fried Chicken (Great Britain) Ltd t/a KFC, 20 November 2013

A TV ad for a fried chicken meal included a voice-over which stated “The new KFC Family Burger Box – a choice of four fillet or zinger burgers, large popcorn chicken and fries. Feed the family and save a fiver – just £14.99”. On-screen text stated “Item shown £20.51 if bought individually. Prices may vary”.

Complaint / Decision

The complainant challenged whether the ad was misleading, because she had not been able to purchase the product for the stated price.

The ASA was satisfied that most Kentucky Fried Chicken (KFC) restaurants sold the Family Burger Box for the price quoted in the ad, and that the saving was over £5. The ASA acknowledged that KFC had used on-screen text “prices may vary” (in the plural) in order to indicate that this referred to all prices quoted in the ad. However, the ad did not make it clear whether “prices may vary” referred to the items totalling £20.51, the Family Burger Box price of £14.99, or both. As the text stating “Item shown £20.51 if bought individually” and “prices may vary” appeared on-screen at the same time, the ASA were concerned that this might lead viewers to believe that the phrase “prices may vary” referred only to the items totalling £20.51. The ASA therefore concluded that it was not sufficiently clear that “prices may vary” referred to all prices quoted in the ad.

Advertisers must make clear to consumers which part of an offer a limitation relates to particularly when the advertiser can vary the price of the product on offer.

4. Channel 5 Broadcasting Ltd, 20 November 2013

A TV ad for an alcoholic drink was broadcast on Channel 5 on Sunday 30 June 2013 at approximately 11.25 am, during a broadcast of ‘Monkey Life’. The ad had been cleared by Clearcast with an 18 scheduling restriction.

Complaint / Decision

One viewer challenged whether the ad had been inappropriately scheduled, because it had been shown during a programme likely to appeal to an audience below the age of 18.

The ASA did not uphold this complaint. As Channel 5 was not a channel devoted to children’s programmes, the ASA considered whether Monkey Life was a programme with ‘particular appeal’ to an audience below the age of 18. The ASA noted that Channel 5 described the programme as being “a heart-warming series set in Dorset’s Monkey World Ape Rescue Centre which follows the day-to-day dramas and personalities of over 240 monkeys, chimps, orang-utans and lesser apes …”. From this description, the ASA considered that Monkey Life was a programme that could appeal to under 18’s and forecasting using audience indexing was the appropriate means to determine whether this was the case. The ASA therefore considered that a programme will have ‘particular appeal’ to an audience below the age of 18 if the audience aged between 10 and 15 years old, indexed against the total audience of all individuals over four years old, produced an index of 120 or more.

Adopting this approach of audience indexing, using the average index of previous transmissions of the programme in similar time-slots, with particular regard to the most recent transmissions, the ASA calculated that the average index was 42 and that all broadcasts with only one exception indexed below 120. The ASA therefore concluded that the data demonstrated that the programme did not have ‘particular appeal’ to an audience below the age of 18 and concluded that the ad had not been scheduled in breach of the Code.

The ASA takes particular notice of, and has a strict approach to, ads which connect alcohol and young people. However, in this instance the ASA was satisfied that children were unlikely to be exposed to the alcohol ad. This adjudication provides a useful summary of the approach broadcasters should take in determining whether a programme is likely to appeal to a certain age bracket. In May 2013, Ofcom published research on the exposure of children and young people to alcohol advertising, taking into account changes in viewing habits and concerns about the impact on children of exposure to alcohol advertising. BCAP was asked to set out recommendations in October 2013, which it did in correspondence with Ofcom, and published new guidance on 17 December 2013.

5. Magicfly Ltd t/a Taking Liberties, 27 November 2013

A flyer for a student event at a bar featured a cartoon of a man in a top hat holding up what appeared to be a tankard of beer. A speech bubble beside the man stated “SOMETIMES TOO MUCH DRINK IS BARELY ENOUGH!”. The reverse of the flyer stated “VODKA + MIXER £2 JAEGER/SAMBUCA 32 SAN MIGUEL (CANS) £2.20 RUM + GINGER £2.80 REDSTRIPE (CANS) £3.20”. The flyer was distributed in a student’s hall of residence.

Complaint / Decision

The complainant challenged whether the ad encouraged irresponsible alcohol consumption amongst students.

Particularly in the context of an ad that promoted a student event at which alcoholic drinks were for sale, the ASA considered the presentation of this ad implied that an excessive amount of alcohol may not be sufficient. The ASA therefore, and unsurprisingly, concluded that the ad encouraged irresponsible alcohol consumption amongst students and therefore breached the Code.

The ASA always take a strict view in relation to alcohol ads, particularly those in association with young people and those which encourage irresponsible alcohol consumption. As seen previously with Hi Spirits, e.g. in the October snapshot, the ASA is strict with promotions which target students and encourage them to drink excessively. Also, in February 2011 the ASA reviewed a Bargain Booze Ltd ad which was a poster to university students promoting a year’s supply of drink, where the ASA did not uphold the complaint.

6. Beverage Services Ltd t/a Schweppes, 27 November 2013

A promotion on bottles of Schweppes drinks stated “FREE JUG * WHEN YOU BUY 3 PACKS”. Text featured prominently within an image of a jug stated “CLAIM YOUT FREE JUG* & mix in the taste of summers when you buy 3 packs of Schweppes”. Further text beneath the image stated “How to Claim: Collect 3 codes from promotional packs only, go to Scweppes.co.uk/freejug and enter your codes. We will then send you a FREE jug”. Small print stated “*From 01/06/2013 until 22/09/2013l, additional terms and conditions apply”. Smaller text located within a silver box listed terms and conditions for the promotion, including “Postage not included. Contribution of £1.40 required”.

Complaint / Decision

Four complainants challenged whether the promotion was misleading, because it did not make sufficiently clear that consumers would have to pay for postage of the jug.

The CAP Code allows for “free” claims to be used where a charge reflecting the unavoidable cost of paying for delivery of an item applies. The ASA understood that the £1.40 charge here was reflective of postage only and that it was therefore not inconsistent with the on-pack references to a “FREE” jug.

However, the Code stipulates that marketing communications must make clear the extent of the commitment consumers must make in order to take advantage of a “free” offer.

The ASA acknowledged that most consumers would understand that any given promotion is likely to carry terms and conditions and would expect the most significant of these to be communicated in the ad itself (including as in this case, on the packaging). The ASA considered that in this case there would not be a time pressure on consumers picking up the products in a store and that, although given in very small writing, the terms and conditions given in the silver box was a suitable method of communication if clearly signposted to consumers. The asterix after the claims in this instance linked only to the dates of the promotion and “additional terms and conditions apply”. However, the ASA decided that this text detracted from the prominence of the information in the silver box because customers were likely to understand that no other conditions beyond the promotion start and end dates were significant enough to warrant inclusion on the pack itself. The ASA therefore concluded that the promotion did not make sufficiently clear that consumers would have to pay postage costs in order to obtain the free jug and that the promotion was therefore misleading.

Advertisers must be careful to prominently state significant terms and conditions and even where included on the packaging, as in this case, ensure that they are not detracted from by other promotional statements.

FINANCIAL

7. Cryton Ltd t/a urquickcash.com, 13 November 2013

Two text messages promoted a loans service:

The first stated “Your money is waiting to be transferred you have passed the credit check just complete the form at http://urquickcash.com to get up to £1000 transferred ASAP”.

The second stated “Hi, you have been accepted for £1000 to be transferred to your account ASAP just fill out the form at http://urquickcash.com you have passed the credit check”.

Complaint / Decision

Two recipients of the text messages challenged whether they breached the Code because (i) they were unsolicited and (ii) they were misleading as the complainants believed that the advertiser did not hold any records about them.

The ASA upheld the complaints. It understood from Cryton Ltd’s (Cryton) response that the website www.urquickcash.com was controlled by Cryton, but that it had employed a third party company to send marketing messages on its behalf. The ASA did acknowledge that whilst Cryton might not have been directly responsible for the text message, it did receive the benefit of having consumers directed to a website under its control. Therefore the ASA considered that Cryton had a duty to ensure that any party employed to promote that website did so in accordance with the CAP Code. The ASA considered Cryton ultimately accountable for the content of the text messages. No evidence was supplied to demonstrate that appropriate consent to receive the text messages had been given by the complainants, or to support the claims made. The ASA concluded that the ads breached the Code.

Employing a third party to undertake marketing on an advertiser’s behalf will not remove responsibility for the communication, particularly when its benefit is traced to the advertiser. Further, as demonstrated in this case, the ASA will take a strict approach to a situation such as an advertiser implying that they hold personal information about recipients where this is not the case. Advertisers must have appropriate consent from consumers before sending marketing communications via text message to be compliant with UK and EU data protection regulation.

8. Cash On Go Ltd t/a Peachy.co.uk, 27 November 2013

A TV ad for a short-term loan company featured a voice-over which stated, “Payday loan companies expect you to repay your loan in one big payment. However, Peachy.co.uk offers multiple repayments, that’s right, multiple repayments.” Images of different payment amounts appeared before on-screen text stated “MULTIPLE REPAYMENTS. Over 18s, subject to status. Representative APR 1058%. Terms and conditions apply”.

Complaint / Decision

One complainant challenged whether the claim “payday loan companies expect you to repay your loan in one big payment” was misleading because they understood most companies allowed payments in instalments. The ASA challenged whether the APR was sufficiently prominent.

The ASA understood that the term “payday loan” encompassed a variety of short-term loan types, including those with multiple repayments. Although the ASA understood that flexible repayment options were likely to be in the minority, it considered the claims made implied that all payday loan companies required the entire sum to be repaid in a single repayment, when this was not the case. The ASA concluded that the ad was misleading and upheld this complaint.

The ASA noted that the Consumer Credit (Advertisements) Regulations 2010 required a Representative APR, when supplied in an ad, to be more prominent than the information that triggered it. The ASA therefore understood that the Representative APR in the Peachy.co.uk ad needed to be more prominent in the ad than the multiple repayment incentive. The Representative APR information appeared only once at the end of the sentence and was therefore less prominent. The ASA upheld the complaint, concluding that the ad breached the Code.

Advertisers of loans must ensure that where they include a Representative APR it must be stated more prominently than the information that triggers this, the ASA will consider the size of font, use of upper/lower case, and positioning in a sentence in its assessment of this point.

HEALTH AND BEAUTY

9. Procter & Gamble (Health and Beauty Care) Ltd, 6 November 2013

A TV ad for Oral B Pro Expert Toothpaste featured a woman standing alongside a screen, which contained the text “Dr Uchenna Okoye, Dentist”. Ms Okoye stated, “I’ve seen a lot of teeth that look great, until I look at the gum line. The problem is if you have plaque along the gum line, it can lead to gum problems, in fact one in two adults might have gum problems and not even know it”. On screen text stated “1 in 2 has gum problems”. Ms Okoye further stated, “That’s why I recommend Oral B Pro-Expert Premium Gum Protection toothpaste. It helps reduce plaque at the gum line and its even been clinically proven to reduce it in just four weeks. It also protects these areas dentists check most. New Oral B Pro Expert Premium Gum Protection toothpaste”.

Complaint / Decision

The on-screen text “1 in 2 has gum problems” was challenged as being misleading because it contradicted the voice over “one in two adults might have gum problems and not even know it”.

The complaint was not upheld. The ASA noted that the ad stated that plaque was one of the major causes of gum disease and considered that viewers would understand that the prevalence of gum problems referenced in the ad was a direct result of plaque. The ASA understood that “gum problems” would be understood by viewers as gum disease ranging from very mild to serious and considered that this was indicated in the ad with reference to the fact that some people may not know they had a gum problem.

Procter & Gamble (P&G) provided a number of surveys to verify their claims. The ASA noted that when considered collectively, the evidence demonstrated that it was fair to conclude that one in two adults are likely to have some form of gum problem. The ASA concluded that, in the context of the ad as a whole, the claims would be understood by viewers to mean that statistically speaking one in two adults had some form of gum problem, and that some of those who did have a problem may not even be aware of it. The ASA concluded that as both statements complained of were in fact accurate, the ad was unlikely to mislead.

P&G were able to provide substantiation for both claims made in the ad. Although one of the clinical studies relied upon was from 1998, this was accepted by the ASA because the conclusions were also supported by a more recent survey. Clearly care needs to be taken not solely to rely on any early study considered without being able to support the findings by a more recent study.

10. Coty UK Ltd, 13 November 2013

Four TV ads and a VOD ad, for Just Cavalli, a perfume for women, featured a woman being pursued by a man. The woman made a number of statements, which were accompanied by on-screen text which repeated the wording.

The first TV ad showed a woman removing her coat and stating “Just Now”. The woman, whilst facing the camera, unbuttoned her top and then stated, “Just Fun”. The woman then threw her top at the man and was shown wearing a bra. The man was shown with a naked torso chasing the woman. The woman then stated “Just Me”. The couple then ran into the bedroom and began to kiss. The ad showed an image of the advertised product and the women stated “Just Cavalli. The new fragrance, just for her”. The other three ads and the VOD were of a similar nature to this ad.

Complaint / Decision

1. Viewers objected that the ads were offensive because of the sexualised behaviour.
2. A number of viewers objected that ads were inappropriately scheduled.
3. One viewer challenged whether one of the ads was appropriate to be seen by children, because they viewed the ad before the programme ‘Wild at Heart’, which they considered a family programme.
4. One viewer challenged whether one of the ads was appropriate to be seen by children, because they viewed the ad during the programme ‘New You’ve Been Framed’, which they considered a family programme.

The ASA did not uphold the complaints 1 or 2. It considered the content of the ad to be at most, moderately sexual. Therefore the ads were unlikely to cause widespread offence. The ASA noted that the ads were scheduled with an ex-kids restriction and concluded that despite their moderately sexual nature they were appropriately scheduled after 19.30.

In relation to complaint 3 the ASA sought audience indexing data for transmissions of ‘Wild at Heart’ in the four weeks prior to the transmission of the ad, which had been challenged by the complainant. The data for the transmissions during that period showed that the programme did not hold strong appeal to children. The ASA considered the measures implemented were responsible and appropriate to minimise the risk of children seeing the ad. These measures were: ITV placed a time restriction on the ad and did not play the ad during programmes which held particular appeal to children. As a result the ASA did not uphold this complaint.

The ASA upheld complaint 4. The Code requires broadcasters to exercise responsible judgement on the scheduling of ads and to operate internal systems to avoid unsuitable juxtapositions between ads and programmes. The ASA sought audience indexing data transmissions of ‘New You’ve Been Framed’ and similar programmes, ‘You’ve Been Framed’ and ‘Funniest Ever You’ve Been Framed’. The ASA considered it appropriate to review transmissions of those programmes between 15.00 and 21.00 on weekdays because this was a time when children would be out of school and would have the opportunity to view the programmes. The data showed that in 26% of the transmissions during those times, the programmes were viewed by a significant number of children. When scheduling the ad ITV considered a previous transmission of the same programme, during the same time slot, for the previous week. The data gathered by the ASA for the four weeks prior indicated a significant number of instances where the programme was watched by a significant number of children; the ASA was concerned that ITV had not taken steps to prevent the ad appearing around such programmes. The ASA concluded that the ad breached the Code

The ASA rely on audience indexing data to show the appeal of a programme to children. The ASA appear to have taken a particularly thorough approach to the gathering of their data in assessing four weeks compared with ITV’s one week assessment, and by assessing both the programme ‘New You’ve Been Framed’ and related programmes. Advertisers and broadcasters need to take care in their assessment of when an ad can be broadcast so as to avoid inadvertently exposing the advertiser to complaints and a potential breach of the Code.

11. Procter & Gamble (Health and Beauty Care) Ltd, 20 November 2013

A TV ad for Oral-B 3D White Brilliance toothpaste featured a woman and a man sitting on a bus. The voice-over stated. “When you smile, the world smiles back. Introducing new Oral-B 3D White Brilliance toothpaste. It helps whiten the front, back, and visible gaps between teeth, for whiter teeth in 2 weeks”. The ad ended with an image of the product accompanied by on-screen text which stated “whiter teeth in two weeks”.

Complaint / Decision

The ASA considered consumers would understand the ad to mean that the advertised product could achieve whiter teeth in two weeks. It sought expert advice on the substantiation provided by Procter & Gamble (P&G); this expert highlighted that the clinical trial provided by P&G was not a full publication and had therefore not been subject to peer review. Nevertheless, the ASA noted that the formula tested was identical in all conceivable and relevant ways with regard to the whitening efficacy of Oral-B 3D. The expert considered any differences and concluded that they were unlikely to affect the staining capacity of the two products. The ASA did not uphold this complaint finding the claims not to be misleading and that P&G substantiated the claims made.

12. Express Pharmacy Consultations Ltd t/a Express Pharmacy, 27 November 2013

Three sponsored search ads for the website www.expresspharmacy.co.uk, an online pharmacy. Each ad included the claims “Lowest Price Guaranteed” and “free consultation and prescription”.

Complaint / Decision

One complainant challenged whether the claim “Lowest Price Guaranteed” in all three ads was misleading and could be substantiated because he understood that the products were available cheaper elsewhere.

The ads stated “Lowest Price Guaranteed”, which the ASA considered was likely to be interpreted as being a lowest price claim, rather than as relating only to a price promise. The ASA went on to explain that where marketers claim that lowest prices are “guaranteed” they should use a price monitoring and adjustment policy to ensure the claims could be supported. The ASA added that a price promise did not justify a lowest price claim in the absence of adequate monitoring and adjustment policies. The ASA noted that advertisers should be in a position to substantiate lowest price claims. The ASA upheld this complaint concluding that the ad breached the CAP Code.

There is an important distinction between “lowest price guaranteed”, which will be taken as a lowest price claim, and “lowest price guarantee”, which will be treated as a promise to match the lowest price. Advertisers must always be particularly careful of stating a lowest price guarantee unless they can substantiate it and unless they have procedures and policies to justify such a claim.

HOUSEHOLD

13. Procter & Gamble UK, 20 November 2013

A TV ad and a magazine ad for Ariel liquid detergent and Stain Remover each showed an item of clothing being washed and included text “Ariel detergent, plus Ariel stain remover, triple your power against stains. 3x Stain Remover power at 30 degrees C…Tested on bleachable stains vs 3 x dose Ariel Compact/Ariel Liquid Detergent”.

Complaint / Decision

Unilever UK Ltd challenged whether the claim “3x Stain Removal Power at 30 degrees C” in combination with the qualification in the ads was ambiguous and misleading.

The ASA acknowledged that the claims in both ads were accompanied with text that explained the basis of the comparison: using stain remover and detergent rather than just using detergent. The ASA noted that both ads showed a visual of the two products together. The ASA therefore considered consumers would understand the “three times stain removal power” claims to be based on one dose of each of the two advertised products compared with three doses of Ariel Liquid detergent.

Whether or not a comparison with three doses of detergent was reflective of consumers’ normal laundry washing habits, the basis of the claim was made clear. The ASA therefore concluded that the ad was not misleading and did not uphold the complaints.

This adjudication shows the importance of a very clear indication of the basis of the claim being made.

LEISURE

14. Discovery Communications Europe Ltd, 13 November 2013

An ad on www.uk.tlc.com offered entrants the opportunity to “Win a holiday for 4 to Mallorca!”.

Complaint / Decision

The complainant complained via the Institute of Promotional Marketing and challenged whether the competition had been administered fairly because, although the prize included “Return flights for 4 people (2 adults and 2 children (under 18))”, the terms and conditions stated that the holiday could not be taken during any school holidays.

Discovery Communications Europe Ltd (Discovery) (possibly somewhat boldly) responded that the competition was not directed at families. The ASA noted that although there was no reference to families in the competition wording, there was in the competition terms and conditions. The ASA considered that most readers of the ad would interpret the claims made in the competition wording to mean that the prize was intended, and suitable, for families with children of all ages. Such claims included: “Here at TLC we’re celebrating summer…with its super wide bay edged with soft golden sand shelving gently into clear water, making it the perfect haven for children to play safely”. The ASA noted that the competition terms and conditions explicitly referred to “TLC Family Summer Holiday Competition” and specified that the prize included flights for two adults and two children under the age of 18. Although the ASA acknowledged that the prize could legitimately be won by a group of young people who were no longer within compulsory education, it considered that most readers would interpret the competition as targeted at families; in which case such readers would also expect to be able to take the prize during school holidays. As the ASA considered that the competition was targeted at families, and the terms and conditions prohibited the winning family from taking the holiday unless they removed their children from school during term time, it concluded that the promotion was administered unfairly and in breach of the Code.

This is the second complaint this month regarding the administration of competitions. Although the limitation was clearly stated, in the circumstances the ASA had no difficulty in concluding that it was an unfair limitation. Unlike MTV Networks Europe however, Discovery placed an unfair limitation on the prize which was inconsistent with the expectations of the competition’s target audience.

RETAIL

15. Charles Tyrwhitt LLP, 6 November 2013

A brochure for men’s clothing stated “The BRITISH LOOK Summer 2013…NEW RANGES FOR SUMMER” and featured a number of products, for example: “Extra Slim Fit Chinos £100/£49.95” and “Blue & Pink Check Long Sleeve Shirt £80/£34.95”.

Complaint / Decision

The complainant challenged whether the claim “NEW RANGES FOR SUMMER” was misleading and could be substantiated, because he noted that all the items in the brochure were advertised at a discounted price.

The ASA understood that certain items in the catalogue had been promoted as “new” because they had not been included in a Charles Tyrwhitt catalogue before. The “new” items had been offered online for at least 28 days between December 2012 and April 2013 on the company website at the stated higher prices.

The ASA noted the claim on the catalogue cover “New ranges for summer” and considered most consumers reading this would expect items which were “new” for the summer season to be included in the catalogue. The ASA concluded that a statement that all the “new” items had been available at a higher price previously would be contrary to most consumers’ understanding of the claim “new”. Charles Tyrwhitt did highlight in its response to the ASA that the catalogue contained a disclaimer printed on the inside cover and on the order form, explaining that “strike-through prices” referred to original selling prices on its website. The ASA acknowledged this disclaimer but considered the text very small and likely to be missed by a number of consumers. Further, the ASA considered that the disclaimer contradicted rather than clarified the headline claim “New ranges for summer”. The ASA upheld this complaint concluding that the ad was misleading.

The ASA disregarded Charles Tyrwhitt’s comment that many retailers class items as “new” for many weeks or months post their launch; the ASA is unlikely to tolerate misleading practices simply because they are common industry traits. In addition to demonstrating compliance with BIS Pricing Practices Guide by ensuring that items are sold for 28 days at the comparative price, this adjudication shows that advertisers must also take care not to advertise something as “new” if it has in fact been sold previously at a higher price.

16. Kokoba Ltd t/a MedicAnimal, 27 November 2013

An email sent by a pet food supplier, received at 7.02 am on 30 August 2013, stated “WE MISS YOU – Save 50% off your next order* When you spend over £60 enter your unique discount code”. Text in a blue circle stated “24 HOURS ONLY!”. Small print at the bottom of the email stated “*Discount will be applied automatically when you spend £60 and enter the code at the checkout…Offer can be withdrawn or revoked at any time without notice – Offer expires midnight 30/08/2013”.

Complaint / Decision

The complainant, who had attempted to place an order using the promotional code at 4pm on 30 August had found that the offer was no longer valid, challenged whether the promotion was conducted fairly.

The ASA understood that MedicAnimal took the decision to withdraw the offer at 1.53pm, at the point at which approximately a third of the orders being placed using the discount code were in fact made by customers who were not intended recipients of the promotional email. MedicAnimal took certain steps to ensure as far as possible recipients of the email were not disappointed, including revising the presentation of the email for those recipients who had not yet opened it and advising the customers who complained directly to MedicAnimal that they would be likely to receive further offers in future. The CAP Code clearly states that closing dates should not be changed unless circumstances outside the reasonable control of the promoter made it unavoidable. The ASA appreciated that the potential impact of a larger-than-expected take-up of the offer would impact on profit margins. However, it considered the possibility of the discount code being published online and therefore being made available to a wider audience than intended not unforeseeable and that MedicAnimal could reasonably be expected to have made provision for that eventuality before the promotion went live. The ASA further noted that the email described the offer code as being unique, when it was not, and limited to one use per customer, when MedicAnimal did not actually have the facility to implement that condition. The ASA suggested that the problems experienced during the promotion would likely have been avoided had MedicAnimal ensured that their systems were capable of administering it in the way described in the email.

The ASA considered that once the decision to withdraw the offer had been made, MedicAnimal could have taken steps to ensure as far as possible that recipients of the email who had not yet placed an order using the discount code were not disadvantaged – for example, by issuing them a replacement code. The ASA considered the steps which were taken by MedicAnimal to be insufficient to ensure that potential participants had been dealt with fairly and were not unnecessarily disappointed. The ASA concluded that this promotion was unfairly administered and breached the Code.

Promotions are often susceptible to problems. Not only are the requirements for promotions in the CAP Code relatively complex, and generally strictly applied, but the consequences of getting them wrong can be significant. The provisions in relation to changes to the closing date of promotions and seeking to ensure potential participants are not disappointed can be particularly problematic. Unsuccessful participants in promotions are also often likely to complain. This adjudication also highlights the problems which can be caused by using promotional codes and the now relatively common practice of these codes being passed on online. Even if unique codes are used by advertisers (which they were not in this case), the online passing on of codes can result in a much greater take-up of promotions. This can make calculations as to availability much more difficult.

TELECOMMUNICATIONS

17. MTV Networks Europe, Starbucks Coffee Company UK Ltd, 6 November 2013

A competition for festival tickets, advertised on MTV UK’s Facebook page, stated “Gutted about missing out on festival tickets? Here’s your change to win three-day VIP tickets to one of the biggest events of the summer with MTV and Starbucks UK! All you have to do is show your #SipFace. Don’t pretend you don’t know what that means. Just upload a photo of yourself supping a Starbuck’s Frappucino!”.

Complaint / Decision

The complainant challenged whether the competition had been administered fairly because he understood he had a winning entry, but had not been contacted to receive his prize and understood that no other winners had been announced.

The competition allowed entrants and other members of the public to vote for their favourite photo. At the end of the voting phase, prizes were awarded to three entrants who received the most votes. MTV administered the competition and Starbucks was involved in the branding. The ASA understood that the complainant had entered the competition and, at the time voting closed, was in the top three entrants who had received the most votes, but that he had not been contacted about receiving his prize.

The ASA noted that the competition terms and conditions stated that voters may vote for as many entries as they liked, but could only vote for any single entry once. MTV had discounted a large number of votes from the complainant’s total because several of the voting entries had the same postcode, incomplete email addresses and email addresses in a noticeably similar format. The votes were considered likely to have been made by one individual and therefore breached the terms and conditions. There was also evidence that the complainant had colluded with another entrant to vote multiple times for each other. The ASA considered MTV’s action in discounting such votes in line with the terms and conditions and confirmed that after such discounting, the complainant had significantly fewer votes than the three winners.

The ASA suggested that it would have been preferable for the entrant terms and conditions to have clearly stated the circumstances under which votes for entries would not count, but it did acknowledge that the voter terms and conditions did make those circumstances clear. Given that voting data showed that the complainant had voted for another entrant the ASA considered the complainant did have the opportunity to familiarise himself with the circumstance under which votes would be discounted. The ASA considered MTV’s decision to discount the complainant’s votes to be reasonable and noted that the entrant terms and conditions stated that a list of winners could be obtained on request. The ASA concluded that the company had not breached the terms and conditions of its competition and that the competition had been administered fairly.

The ASA took a pragmatic approach in this adjudication and recognised MTV’s actions as reasonable and within the terms of the competition. This adjudication again highlights the need to carefully draft terms and conditions for online promotions and in particular, to anticipate problematic issues which may arise.

18. British Telecommunications plc t/a BT, 13 November 2013

A BT website which promoted BT broadband packages included a table comparing the various packages. For the “Unlimited Broadband” package, text under the table heading “Speed” stated “Up to 16 Mb download speed”; when a consumer rested the mouse over this claim, additional text appeared which stated “ ‘Up to’ speeds are based on the technology used to deliver broadband to your home and are slower at peak times”. In the column headed “Monthly usage limit” text stated “TOTALLY UNLIMITED USAGE” and the link “What’s Totally Unlimited?” appeared below. Clicking on this link caused a pop-up to appear and further text stated “Some internet service providers put restrictions on certain types of internet traffic, or limit how much you can download or upload which means at peak times of the day, customers may experience slower speeds. We don’t think that’s a good enough experience for BT customers so we have made all of our unlimited products ‘Totally Unlimited’. ‘Totally Unlimited’ means that you will be able to enjoy catch-up TV, streamed files, online gaming and other bandwidth-eating applications and we’ll never slow you down”. The page also included a table that detailed the traffic management policies used by other providers.

Complaint / Decision

Virgin Media Ltd (Virgin) challenged whether the claims “Unlimited Broadband” and “Totally Unlimited” when placed next to the maximum headline speed of the service were misleading.

The ASA noted that Virgin objected to these ‘unlimited’ claims alongside the maximum headline speed claim as they considered consumers reading the claims together would expect to be able to use BT’s service at all times of the day at the headline speed without significant reduction in speed. However, the ASA considered that the speed claim and the usage claims in the ad were clearly presented as independent parts of the package. The ASA noted that the “Totally Unlimited” claim appeared in a column under the heading “Monthly usage limit” and appeared next to the claim “Up to 16Mb download speed” under the column headed “Speed”. Additional pop-up text explained that the speed a BT customer could expect to achieve if they bought the relevant “Unlimited Broadband” package would vary according to factors such as their location, home wiring and the time of day. The ASA therefore considered that the average consumer reading the ad would understand that if they bought the package, the speed they achieved might be less than the headline speed stated, and might vary depending on the time of day, but that the amount of data they could use was unlimited, regardless of whether they engaged in data sensitive activities and that they would not be slowed down or restricted by BT.

The ASA acknowledged that most consumers would understand that speed and data usage were separate aspects of a broadband package, but that there was a relationship between the two. In the ASA’s opinion the ad clearly explained both aspects of the package and the appearance of the speed claim alongside the “Unlimited” and “Totally Unlimited Usage” claims would not change a consumer’s understanding of those features. The ASA therefore concluded that the claims, when placed next to the maximum headline speed, were not misleading.

Telecommunications promotions remain a regular feature of ASA adjudications. As we saw in the Virgin Media adjudication in last month’s snapshot, an advertiser cannot market a product as ‘unlimited’ where it imposes traffic management policies which are not ‘moderate’ by the Code’s standards. Here BT did not impose any restrictions on consumers’ usage so could fairly call its service ‘unlimited’.

19. Telefonica UK Ltd t/a O2, 20 November 2013

A phone app ad stated “Get your free Cadbury chocolate bar … 2 weeks left … Out of Stock”.

Complaint / Decision

The complainant challenged whether the advertiser had made a reasonable estimate of the likely response to the promotion, and whether they were capable of meeting that response, because the complainant believed the offer, which had only recently started, was out of stock.

The ASA acknowledged that Telefonica and WH Smith had agreed in advance to honour a maximum number of redemption codes. The ASA noted that the promoters had made a reasonable estimate of the likely response to the promotion and the agreed number of redemption codes was based on this estimation. Telefonica provided details of two similar promotions, which showed that the total in-store redemptions for those offers were significantly less than the maximum redemption code limit set for this promotion. The ASA noted that both historic promotions offered free chocolate and one was for a free Cadbury bar, and that one promotion was held over a 21-day period, while the other was held over a 19-day period. The ASA considered that the comparative offers had used the same or a very similar product, offer and time-period to the complained about promotion.

During this promotion the daily cap had been increased by the promoters towards the end of the offer to reduce causing unnecessary consumer disappointment. Telefonica provided stock reports and correspondence with WH Smith to demonstrate that they had regularly monitored and responded to stock levels. The ASA noted that there were a significant number of redemption codes remaining at the end of the promotion period. According to the stock report provided by Telefonica the daily code cap was only exceeded on the first day of the promotion and was not exceeded on any other day during the three week period. Correspondence showed that WH Smith had suggested changing the “out of stock” message on the app and Telefonica had explained that, due to technical reasons, the display text could not be changed at that point. The ASA noted that the number of weeks remaining was displayed on the app and Telefonica had provided evidence to show that the number of remaining vouchers was also shown. The ASA therefore considered that Telefonica and WH Smith had estimated the likely consumer response and monitored stock levels throughout the promotion period. The ASA concluded that the ad was not misleading.

Telefonica was able to provide detailed evidence of fair administration of their promotion. The ASA took particular notice of Telefonica’s monitoring of stock levels throughout the promotional period.