ASA Adjudications Snapshot – May 2014

ADJUDICATIONS

FINANCIAL

1. Insopop.com Ltd t/a confused.com, 7 May 2014 (a radio ad for a comparison website was held to be misleading for implying that home insurance available through confused.com would cover damage to home furnishings caused by pets)

2. SRC Transatlantic Ltd t/a Speedy Cash, 28 May 2014 (a leaflet promoting payday loan services was held to be irresponsible for targeting families with children)

FOOD AND DRINK

3. Cereal Partners UK, 7 May 2014 (an ad for a high sugar content children’s cereal shown during the screening of a U-rated film was found not to breach the CAP code for encouraging poor nutritional habits or an unhealthy lifestyle in children)

4. GlaxoSmithKline, 7 May 2014 (claims in relation to Vitamins A and C were held to breach the CAP Code for not being authorised health claims)

5. Kentucky Fried Chicken (Great Britain) Ltd, 21 May 2014 (an ad promoting a KFC bucket meal was held not to be misleading even though the price advertised was only offered at a selected number of stores)

HEALTH AND BEAUTY

6. Actegy Health Ltd t/a Aerosure Medic, 14 May 2014 (an ad promoting a medical device designed to reduce breathlessness was held to be irresponsible for discouraging those suffering from breathlessness from seeking medical advice)

LEISURE

7. Virgin Holidays Ltd, 7 May 2014 (a competition advertised on Facebook using the hashtag “Tanuary” was held to be irresponsible for encouraging consumers to tan their skin without raising awareness of sun safety)

8. Manchester Airport Group, 21 May 2014 (an ad claiming that parking at Stansted Airport was 53% cheaper than the previous year was held to be misleading because the claim only applied to an eight-day parking duration and such a condition should have been stated in the body of the ad)

9. Coral Interactive (Gibraltar) Ltd, 28 May 2014 (an ad featuring a woman acting seductively with a whip was held to breach the BCAP Code for linking gambling to seduction)

MOTORING

10. General Motors UK Ltd t/a Vauxhall, 21 May 2014 (a car advert was held to be misleading for implying that the car was purely electrically powered)

OTHER

11. The Save the Children Fund, 7 May 2014 (an ad for the charity’s campaign showing a live birth was considered unlikely to cause serious or widespread offence on the basis that the ad began with an advisory warning, was produced with the mother’s express consent, and a post 21:00 restriction had been applied to the ad to reduce the risk of younger children seeing it)

RETAIL

12. Kiddicare.com Ltd, 14 May 2014 (the product rating of a nursing chair was held not to be misleading even though the complainant’s negative review had not been published, as it had not yet been moderated by the advertiser)

13. Tesco Stores Ltd, 21 May 2014 (a Christmas ad comparing the price of a Christmas shop with other retailers was held not to be misleading in substance but was held to be misleading as the information verifying the claim in the ad was not readily accessible)

14. John Lewis Partnership plc, 28 May 2014 (a price-match offer against other high street retailers was held not to be misleading for not applying to an online retailer even though the online retailer traded on the high street under a different brand)

TELECOMMUNICATIONS

15. PC Pitstop LLC t/a PCMatic.com, 21 May 2014 (claims that a PC diagnosis service could improve internet and download speeds were held to be misleading)

FINANCIAL

1. Insopop.com Ltd t/a confused.com, 7 May 2014

A radio ad featured the sound of a doorbell ringing leading to a dog barking in response. A voice-over stated, “Greetings to you too, Rex. I am Brian of confused.com”. Brian continued, “Oh your master’s out? Well tell him he could save over £263 on his home insurance through confused.com…What do you mean he’s going to need it? You’ve done what? Oh not on the Persian rug, Rex!”.

Complaint / Decision

The complainant challenged whether the ad was misleading for implying that consumers using the home insurance would be able to claim for damage caused by pets, because they understood that most home insurance policies did not cover such incidents.

The ASA upheld the complaint. The ASA acknowledged confused.com’s argument that the ad principally promoted the possible savings from obtaining home insurance through their website. However, the ASA considered that listeners would view the exchange between Brian and Rex regarding the damage Rex had caused to the Persian rug as an example of a situation in which the home insurance could potentially be used, thus suggesting that the home insurance available through confused.com would cover damage to home furnishings caused by pets. Given that most home insurance policies do not cover this type of damage, the ASA concluded that the ad was misleading.

The ASA’s decision here is not surprising and in line with their previous decisions in this sector.

2. SRC Transatlantic Ltd t/a Speedy Cash, 28 May 2014

A leaflet for Speedy Cash stated “FREE PHOTOS WITH Santa FRIDAY DECEMBER 13TH 12-4pm EVERY CHILD GETS A Christmas Treat!”

Complaint / Decision

MoneySavingExpert.com challenged whether the ad was irresponsible, arguing that it trivialised Speedy Cash’s service and was targeted at families and children.

The ASA upheld the complaint. The ASA noted that the ad did not make any reference to the range of services offered by Speedy Cash, nor did it make reference to how any cash that was obtained might be spent. The ASA therefore concluded that the ad did not trivialise Speedy Cash’s services and was not irresponsible on this basis. However, the ASA considered that the nature of the event promoted in the ad encouraged children accompanied by parents to attend. The ad displayed no age restriction and as the event would take place in-store where other services such as payday loans may be offered, the ASA held that it was socially irresponsible.

The adjudication exemplifies the ASA’s crackdown on payday loan advertising. Most payday loan ads are usually investigated for providing misleading information about the loans (see previous month’s adjudication against Wonga). As demonstrated by this adjudication, the ASA is also looking at generally irresponsible advertising in the sector; promoting an event that encourages children to be around payday loan ads, especially during the Christmas period where families are likely to spend more, is evidently going to be considered as irresponsible by the ASA.

FOOD AND DRINK

3. Cereal Partners UK, 7 May 2014

An animated cinema ad, shown before the U-rated film 'Monster's University' at 4:30 pm, featured a cartoon wolf at a waterpark pursuing a box of Cookie Crisp cereal who is enthused by the fact that the cereal now contains ‘even more chips’. The ad features scenes of children eating the cereal with milk and also catching the cereal in a bowl as it falls from above them as a result of the wolf’s antics. Large on-screen text stated "COOKIE CRISP NOW WITH MORE CHIPS". Small on-screen text said "More than 35% increase in chip content".

Complaints / Decisions

The complainant challenged whether the ad:

1. condoned or encouraged poor nutritional habits or an unhealthy lifestyle in children; and

2. disparaged good dietary practice.

Neither of the complaints was upheld.

The ASA was provided with information relating to the expected audience profile for the ad and noted that the CAP Code defined children as persons aged under 16 years of age, but that the audience profile information did not provide data relating to children aged 12 to 15. While Cereal Partners had anticipated that under-12s would make up only 18% of the audience, the ASA noted that the ad had been specifically targeted to U-rated films which would have the highest percentage of young children in the audience compared to films with higher age-ratings. The choice of film and timing of the screening on a school holiday, considered along with the cartoon-style and comic storyline of the advert and descriptions of the product as ‘delicious’ and containing ‘even more chips’, meant that the ad would be of particular appeal to children.

The ASA acknowledged that the documentation provided by the advertiser demonstrated that health experts highlighted the importance of eating breakfast for a healthy diet, and that fortified and wholegrain cereals provided a range of nutrients and fibre which contributed to a healthy diet. However, they also noted that the cereal would be considered to have a high sugar content in accordance with guidance produced by the British Dietetic Association.

Notwithstanding the fact that the ASA considered the ad and the product to be likely to appeal to children and noting that the product had a high sugar content, they found that the ad itself did not contain any content which condoned or encouraged poor nutritional habits or an unhealthy lifestyle, or disparaged good dietary practice. There was no portrayal of frequent or excessive consumption nor suggestions that an inactive lifestyle was better than physical activity. As such, the ASA held that the ad did not breach the CAP Code.

A similar adjudication against Kellogg’s Marketing this month was also not upheld. At first glance, this decision is somewhat surprising given that the ASA is focusing on advertising food to children; the key here however was that the advertiser did not encourage frequent or excessive consumption even though there was some evidence to suggest that the product had a high sugar content.

4. GlaxoSmithKline, 7 May 2014

The Ribena website stated: “The tasty new Ribena Plus range includes Ribena Plus with Vitamin A and Vitamin C to help support immunity, and Ribena Plus with calcium for healthy bones…Did you know that Vitamin A not only helps keep your vision in tip-top condition, it’s important for skin health and immunity too?... Vitamin C is one of our favourites: It does so much good stuff! It helps immunity, healthy bones AND it’s an antioxidant…”

Complaints / Decisions

A complainant challenged whether the following claims were authorised health claims on the EU Register of Nutrition and Health Claims:

1. Vitamin A… helps keep your vision in tip top condition;

2. Vitamin A… is important for… immunity too;

3. Vitamin C… it helps immunity; and

4. Vitamin C… it’s an antioxidant.

The ASA upheld all 4 complaints. In general terms, the health benefits described on the web page had all been endorsed by the European Food Standards Authority (EFSA), but GlaxoSmithKline (GSK) had reworded some authorised claims in order to keep the language understandable and more consumer-friendly.

1. The ASA acknowledged that marketers could exercise some flexibility in rewording authorised claims, as long as the reworded claim retained the same meaning as the authorised claim. The ASA considered that the substitution of ‘helps keep’ for ‘contributes to’ was acceptable. However, ‘keep your vision in tip top condition’ was considered an exaggeration and implied the maintenance of an optimal level as opposed to normal level of health.

2. The ASA commented that the words “important for” in the phrase “Vitamin A… is important… for immunity too” placed extra emphasis on the role of Vitamin A, thus altering the meaning of the authorised claim (which related to the normal functioning of the body). Removal of the word “normal” with reference to the functioning of the body was considered to change the meaning of the claim to suggest that Vitamin A optimises rather than maintains immune function.

3. “Helps” as a substitute for “contributes” was considered acceptable rewording. However, the ASA considered that the replacement of “normal function of the immune system” with “immunity” was considered to over emphasise the role of Vitamin C, suggesting that it improved general immunity rather than help the normal workings of the immune system. The claim therefore breached the Code.

4. The ASA considered that the claim “Vitamin C… it’s an antioxidant” was thought not to convey to customers the full meaning of the authorised health claim, which was “Vitamin C contributes to the protection of cells from oxidative stress”, and therefore breached the Code.

The decision here demonstrates just how narrowly health claims are being interpreted. Although rewording is allowed, it is clear from the ruling that there are considerable limitations on this. Advertisers should therefore be careful when rewording health claims and should attempt to make sure that the rewording is as close to the original health claim as possible.

5. Kentucky Fried Chicken (Great Britain) Ltd, 21 May 2014

A TV ad for a KFC chicken bucket meal claimed to offer a chicken bucket with fries for £9.99. The ad featured a woman gesturing towards a KFC bucket meal and stating “This was a bargain, a bucket of chicken and fries for under a tenner”. The ad finished with on-screen text stating “Prices may vary”, accompanied by a voice-over shouting “bargain bucket” and graphics stating “Bargain Bucket 9.99”.

Complaint / Decision

Two complainants challenged whether the ad was misleading as they considered that the on-screen text contradicted the advertised price claim.

The ASA did not uphold the complaint. KFC confirmed that the bargain bucket was priced at £9.99 but that a select number of stores – specifically two out of 850 stores nationally – sold the bucket at a higher price. They did not consider the advert to be misleading given that over 99% of restaurants charged £9.99, with the remaining 0.2% of restaurants covered by the on-screen “Prices may vary” text.

They ASA considered that the on-screen text “Prices may vary” text was sufficiently prominent and qualified the ad’s price claim. Concluding that the ad was not misleading, the ASA noted that as over 99% of restaurants sold the product at the price advertised, the qualification text was sufficiently clear so as not to contradict the price claim.

As only two of KFC’s restaurants did not run the offer, the ASA considered the ad not to be misleading. However, the ASA is likely to have found differently if a significantly higher number of restaurants had not run the offer. The adjudication did not explain why those two restaurants did not run the offer but this may have influenced the ASA’s decision.

HEALTH AND BEAUTY

6. Actegy Health Ltd t/a Aerosure Medic, 14 May 2014

A TV ad for the AeroSure Medic featured a woman sitting alone on her sofa talking about her medical condition, while appearing to be short of breath. People appeared beside her and made comments such as “you’re always too out of puff to come for a walk”, “your coughing keeps me awake” and “you never take me to the playground”. The ad describes AeroSure Medic as a clinically-tested medical device that could reduce breathlessness and help clear mucus. The woman was shown using the device before blowing out candles on a birthday cake, surrounded by family members. The ad had onscreen text at the beginning that stated “For best results always follow the instructions” and at the end showed logos for Boots and Lloyds Pharmacy.

Complaint / Decision

A complainant challenged whether the ad was irresponsible and potentially harmful because it could discourage viewers from seeking medical advice for breathlessness.

The ASA upheld the complaint. The ASA considered that the woman in the ad was likely to be interpreted by viewers as having symptoms that were more than mild in nature and not solely related to her level of fitness. In the ad she appeared short of breath while sitting on the sofa, and details were given about her still having symptoms, such as coughing, while resting at night. Other comments were indicative of a longer-term problem, such as the comment “You’re always too out of puff”. Overall, the ASA were of the opinion that viewers were generally more likely to interpret the character’s breathlessness as more than a mild symptom relating to a minor medical condition or general lack of fitness, and as such, there was a risk that they would believe that it was possible for long-term breathlessness to be treated successfully with the AeroSure device. As long-term breathlessness could be a symptom of serious conditions, the ad should not encourage those suffering from the symptom from seeking medical advice.

Actegy Health sought to rely on the fact that the ad advised viewers to read the instructions, which contained information about visiting a doctor and contra-indications. However, the ASA noted that potential purchasers would only be able to access this information after buying the product and that, rather than encouraging them to seek medical advice, the logos of the pharmacies displayed at the end of the ad instead provided viewers with information as to where they could buy the device.

When advertising medical devices, advertisers should ensure that such ads where appropriate encourage consumers to seek medical advice prior to making any purchases. Another issue here was that the product was aimed at relieving breathlessness. Breathlessness is a symptom of such a wide variety of illnesses that seeking medical advice is necessary for a consumer to understand what the cause might be.

LEISURE

7. Virgin Holidays Ltd, 7 May 2014

A website, www.virginholidays.co.uk, and Virgin Holiday’s Facebook page, featured a competition for a holiday. The website was headed “WIN 4 Weeks of Holiday” and featured an image of a female’s tanned stomach and arm. The text “THE #Tanuary SALE” was stated on the woman’s torso in an area that had not been tanned. Beneath the image, text stated “Got a tan line Pic? Show us your white bits and you could win 4 weeks of holiday. Upload to Twitter or Instagram using #Tanuary to enter and you will be entered into our BIG PRIZE DRAW.”

The ad on the advertiser’s Facebook page was similar, featuring a female’s tanned hip with the “#Tanuary” logo.

Complaint / Decision

Two complainants challenged whether the ads were irresponsible for encouraging consumers to tan their skin without raising awareness of sun safety.

The ASA upheld the complaint. The ASA considered that the ads could encourage recipients to tan their skin without giving sufficient prominence to information about sun safety. The ASA acknowledged that there was an icon that stated “Please tan responsibly” which clicked through to a website dedicated to sun safety, but the information did not have sufficient prominence. In particular the icon was significantly smaller than the headline claims which promoted the opportunity to win a holiday. Moreover, the large prizes on offer were significant incentives for entrants to acquire a tan.

The ASA could be considered as having taken an overly cautious approach with this decision especially given that advice over tanning responsibly was in fact included in the ad.

8. Manchester Airport Group, 21 May 2014

Stansted Airport Ltd, part of the Manchester Airports Group Plc, distributed an email ad stating “PARKING AT STANSTED 53% CHEAPER THAN LAST YEAR! * Take advantage of an 8-day stay in Long Stay for only £39.99. BOOK NOW…”. The asterisk led to the following small print at the foot of the page: “*Prices quoted are for a standard 8 day stay in our Long Stay car park arriving in March 2014. 53% discount calculated based on the same 8 day period in 2013 costing £85.99 a reduction of £46”.

Complaint / Decision

The complainant challenged whether the claim “Parking at Stansted 53% cheaper than last year” was misleading and could be substantiated.

The ASA upheld the complaint. Stansted Airport Ltd submitted that the ad’s terms and conditions made clear that the percentage savings were based on an eight-day stay in their long stay car park. They provided a spreadsheet to substantiate the comparative price claim, which they said was based on an eight-day stay in March 2014 compared to the same car park, month and duration in 2013.

However, the ASA considered that the headline claim “Parking at Stansted 53% cheaper than last year!*” would be understood by the email’s recipients to be an absolute statement that all parking at Stansted in 2014 was 53% cheaper than in 2013. They considered that the asterisk-linked small print “take advantage of an 8-day stay in Long Stay for only £39.99” would be understood as an illustrative example, and accordingly that the small print contradicted the absolute headline claim rather than qualifying it, which made the ad misleading. The ASA noted the evidence demonstrating that eight days’ parking in March 2014 was 53% cheaper than the same duration and period in 2013; however they considered that this information was a significant condition and should have been stated with greater prominence - in the body copy of the ad, not towards the bottom of the page beneath three other ads, as was the case.

The ASA took a pragmatic approach in this decision. The advertiser had cherry-picked an example but the claim was likely to be interpreted by consumers as applying to all parking.

9. Coral Interactive (Gibraltar) Ltd, 28 May 2014

A TV ad showed two men in a barber’s shop discussing betting on racing before a woman wearing a jockey’s outfit walked in. All of the men in the barbers were shown to be distracted by the woman and the woman lent forward to close the gaping mouth of one of the men using a whip. The woman was then shown holding a sign bearing the odds for a horse and bending towards a man touching his mobile phone with her whip. The man then placed a bet on the horse using the Coral app. As the woman left the shop, she tapped the TV with her whip which then turned on to show a horse race. A voice-over stated, “Go on, stick one on it”. The final shot showed a phone and tablet being hit with the whip.

Complaint / Decision

The complainant challenged whether the ad breached the BCAP Code because it linked gambling to seduction.

The ASA upheld the complaint. Coral sought to rely on the fact that the men were shown as intending to place a bet even before the entrance of the female jockey suggesting that her presence did not influence their gambling behaviour. However the ASA noted the manner in which the female jockey entered the shop which they considered placed an emphasis on her sexual attractiveness, as the camera focused on her knee-high boots and then cut to showing an outfit that also featured tight jodhpurs, a whip and a jersey cut to show her midriff.

Rather than limiting the woman’s role to drawing attention to the interactive betting offer, the ASA considered that the ad emphasised her sexual attractiveness and there was a strong focus on her behaving in a flirtatious manner. The ASA was of the opinion that viewers were likely to perceive the men’s reactions as being excited about the woman’s presence rather than the odds she was holding up on a card. The ASA concluded that the woman represented Coral’s brand and, as she was portrayed seductively in the scenario, the ad breached the BCAP Code.

Gambling ads are another area of focus for the ASA. At the end of April, the ASA announced that it was reviewing enforcement of gambling advertising rules. The Gambling Act 2005 allows gambling operators to advertise more widely; the evolution of technology, mobile phone apps and social media means that there are new ways for operators to reach their audiences. As such, the ASA has been concerned about the increasing number of complaints received about gambling ads.

MOTORING

10. General Motors UK Ltd t/a Vauxhall, 21 May 2014

A regional press ad, for a plug-in electric range extender car stated “Ampera the extended-range electric vehicle… The first ever Extended-Range Electric Vehicle, the Ampera offers uncompromised everyday usability ... Compared to other electric cars the Ampera, with up to 360-mile range, top speed of 100mph and charge time of just 6 hours does it all ...".

The small print in the ad stated "The ‘Combined/weighted’ fuel consumption/CO2 figures calculated from two test results: one when the battery is fully charged from mains electricity and the other where the battery is discharged. The two test results are a weighted average, taking into account mileage range on battery power only, providing a figure in a variety of charge conditions. Extended range achieved by a 1.4 litre 16-valve VVT ECOTEC petrol engine generating electricity".

Complaint / Decision

A reader challenged whether the claim "Compared to other electric cars the Ampera, with up to 360-mile range ..." misleadingly implied that the car was purely electrically powered and could achieve that range without any additional power source.

The ASA upheld the complaint. General Motors said the Society of Motor Manufacturers and Traders' Electric Car Guide explained that ‘electric vehicle' was an umbrella term for any vehicle that was powered, in part or in full, by a battery and since they launched the Ampera in 2012, the electric car market had become more mainstream and they believed that the average consumer was aware that there were different types of electric vehicles available.

Nevertheless, the ASA noted the headline stated that the Ampera was an "Extended Range Electric Vehicle", but considered that, because the electric car market was still relatively new, the average consumer was unlikely to be familiar with the term or understand that it referred to the type of vehicle and was not simply a reference to the distance that it was able to travel. For that reason, they considered that consumers were likely to understand that the car was a pure battery electric vehicle and that the small print was not sufficiently prominent to remove the overall impression of the ad that the Ampera was a pure battery electric vehicle. It concluded that the claim "Compared to other electric cars the Ampera, with up to 360-mile range" was ambiguous and gave a misleading impression of the car's capabilities.

This adjudication demonstrates how much importance the ASA places on consumer interpretation. Even though there was evidence to suggest that the claim might not be misleading, the ASA looked at the average consumer’s perception.

OTHER

11. The Save the Children Fund, 7 May 2014

A TV ad and a couple of video-on-demand (VOD) ads began with a warning message that read “ADVISORY The following advertisement features a real birth scene which viewers may find distressing”. The ad featured a woman giving birth to a baby. The baby was then placed in a cot and a midwife was seen to wipe the baby with a towel. On-screen text read, “For a million newborns every year, their first day is also their last.” The midwife was then shown administering care to the baby after which the baby began to cry. Further on-screen text stated, “Basic training for midwives can help end first day deaths…”.

The ad had a post 21:00 restriction.

Complaint / Decision

The ASA received 614 complaints. The complainants considered the ads to be offensive, distressing, inappropriately scheduled and unsuitable for broadcast on television. Some complainants found images of what appeared to be a dead baby distressing and shocking whilst others complained that the ad would cause undue distress to pregnant women and those who had suffered miscarriages and stillbirths. A significant amount of complainants also considered that the warning message was not sufficiently displayed and that the post 21:00 restriction was not sufficient.

The ASA did not uphold the complaint. The ASA noted that the birth was filmed with the mother’s express consent and knowledge that the material would be used in advertising. Moreover, the ASA considered that the issue of death during childbirth was presented in a way that respected the mother’s dignity whilst raising awareness of the issue.

The ASA considered that the post 21:00 restriction was sufficient to prevent young children from seeing the ads and noted that the scheduling had been adhered to. The ASA was also of the opinion that the warning message at the beginning of the ad was enough to alert viewers and for them to decide not to watch the ads.

Notwithstanding complaints that the depiction of a dead baby caused widespread offence, the ASA concluded that the ads made sufficiently clear that the baby was alive as it was shown crying at the end. For that reason and the reasons outlined above, the ASA concluded that the ads were unlikely to cause serious or widespread offence.

Despite receiving a large number of complaints, the ASA followed its own guidelines pragmatically to rule that the ads were unlikely to cause serious or widespread offence. Particularly with “offensiveness” complaints, the number of complaints received is in no way indicative of the likely outcome.

RETAIL

12. Kiddicare.com Ltd, 14 May 2014

Kiddicare.com featured a page advertising a nursing chair for sale from their website. The page showed a rating graphic next to the product, indicating a five-star review and stating: “(963 Reviews)” “Read 963 Reviews” “Write a Review”. Half-way down the page was an information tab called “Reviews”. This tab included the text “Average Customer Rating: [star graphic] (4.5 out of 5) – based on 963 reviews”. 15 four- or five-star reviews then followed, with the option to read all reviews.

Complaint / Decision

The complainant challenged whether the product rating was misleading as their negative review had not been published.

The ASA did not uphold the complaint. Kiddicare had a moderation system whereby reviews of 2 stars or less were held back before publication on the live site, to be approved by Kiddicare. This was to ensure that Kiddicare was aware of all issues of product dissatisfaction, could allow the reviews to focus on the product rather than customer service and to ensure that no offensive language was used.

The ASA considered that the moderation system being used by Kiddicare was satisfactory. Kiddicare provided evidence of the most recent 2- or 1-star reviews submitted to them for moderation, which were made some time before the complaint was submitted. The ASA concluded that the complainant’s review had not appeared on the live site because it had not been submitted to the moderation system at all; not because of Kiddicare’s moderation of the review.

The ASA further noted that negative reviews did feature on the product page (albeit it from some time ago) and other products on the site featured negative reviews that had been approved for publication. Therefore the ASA considered that there was no evidence to suggest that Kiddicare was “moderating out” negative reviews for invalid reasons, so the star rating was not misleading.

It is surprising that no questions were asked as to why the review was not submitted to the moderation system in the first place; it is unclear as to whether this was due to a technical error or for another reason.

13. Tesco Stores Ltd, 21 May 2014

A press ad published in various publications on 20 December 2013 read, “No one is cheaper for your big Christmas shop. We’re delighted to have won ‘The Grocer’ magazine’s Christmas G33 pricing survey”. Small print stated, “Tesco was found to be the best for price, service and availability in an independent survey published by The Grocer magazine on 14th December 2013. Survey was undertaken...on 10th December 2013 and compared 33 goods purchased from ASDA, Morrisons, Sainsbury’s Waitrose and Tesco. For full article and survey results, see The Grocer print edition published on 14th December 2013 or online at thegrocer.co.uk/grocer-33/prices”.

There were images in the ad of various products typically bought during the Christmas period such as Brussels sprouts, Christmas pudding and champagne.

Complaints / Decisions

ASDA challenged whether the claim “No one is cheaper for your big Christmas shop” was misleading and could be substantiated for the following reasons:

1. they considered that as the claim was based on 33 Christmas products when purchased on 10 December, it was not representative of consumers’ big Christmas shop;

2. they were of the opinion that it was a future lowest price claim;

3. the comparison only included five retailers; and

4. consumers had to purchase The Grocer to verify the substantiation of the claim.

The ASA upheld two complaints and did not uphold the other two complaints.

1. Not upheld. ASDA considered that the wording “your big Christmas shop” as opposed to “the big Christmas shop” suggested that Tesco’s prices were lower than their competitors for all products that a consumer might buy for their Christmas shop, not just the 33 selected items used in the survey. The ASA considered that as the footnote in the ad clarified that the survey was based on 33 products and that these products traditionally associated with Christmas, consumers would interpret “your big Christmas shop” to relate to the 33 products. The fact that images of some of these products were included in the ad further supported this interpretation.

The ASA concluded that consumers would understand the 33 products to illustrate an example of a typical Christmas shop rather than suggest that Tesco’s prices for all products that might be purchased at Christmas were lower than their competitors.

2. Not upheld. As the main body of the ad and the footnote included text which stated that the survey took place on 10 December 2013, the ASA considered that consumers would understand that the claim “No one is cheaper than your big Christmas shop” was based on the prices in the survey which took place on that date. The ASA acknowledged that prices of Tesco and its competitors could change since the data had been collected but held that the ad did not mislead consumers into thinking that the survey results referred to other days or weeks in December.

3. Upheld. Tesco argued that, as ASDA, Morrisons, Sainsbury’s, Waitrose and Tesco together held more than 80% of the market share of grocers, the claim had been sufficiently substantiated. However, the ASA noted that Tesco used the wording “No one” which was an absolute claim as it suggested that no other food retailers or grocers were cheaper in the comparison. The ASA therefore considered that the footnote text listing the five big supermarkets contradicted rather than substantiated the claim. As no evidence was provided to show that Tesco was cheaper than every other grocer or retailer, the ASA held the ad to be misleading.

4. Upheld. The ASA considered that information in The Grocer was important for understanding the basis of the comparison as it included information on the 33 products, whether they were own label or branded and their price. As consumers had to buy the magazine or an online subscription to view this information, the ASA held that the information was not sufficiently accessible. The ASA therefore concluded that the comparison was not verifiable, holding for that reason that the claim was misleading.

Advertisers should ensure that any information used to substantiate comparative claims that they are making are readily and freely accessible so that consumers can verify the basis of such claims.

14. John Lewis Partnership plc, 28 May 2014

On the John Lewis website, a price-match claim was set out. Text stated “If we find a national high street competitor offering a better nationwide price for the same individual product, sold with the same service conditions, we’ll lower our price to match in all our shops and on our website...some high street competitors have a different nationwide shop price to their online price; in that instance we’ll match whichever is the lower of the two across our shops and on our website...”

Complaint / Decision

A complainant, who believed their price match claim met the criteria, challenged whether the ad was misleading as their claim was rejected.

The ASA did not uphold the complaint. John Lewis explained that the complainant’s claim related to a price offered by an online retailer and although the relevant online retailer had a high street store, it traded under a different name from the online store. They highlighted that their conditions for price matching mentioned that “websites need to trade under the same brand and on the same basis as their high street shops.” The ASA noted that the conditions to the price match promise were one click away from the ad and the condition referred to here was clearly and prominently outlined in the text. The ASA therefore considered that the condition was made sufficiently clear and so the ad was not misleading.

The key here was that the retailer in question traded under different brands online and in store and that John Lewis had highlighted the terms of their offer in a clear and comprehensible manner.

TELECOMMUNICATIONS

15. PC Pitstop LLC t/a PCMatic.com, 28 May 2014

A TV ad for a PC diagnosis service showed a woman sitting in front of her laptop and saying aloud “My computer is so slow...This computer is old”. A cartoon man appeared on her laptop’s keyboard and said “Go online at PCMatic.com”. The woman and the cartoon man then discussed some of the benefits of using PCMatic’s service. Boxes on-screen included text which stated, “PCMATIC could do ALL of this Makes your PC Safer Makes your PC Faster Prevents Lock-ups”. A voice-over stated, “PCMatic could improved download speeds too”. Another box appeared on-screen which included text stating, “Improves Internet Speed.”

Complaints / Decisions

1. Two viewers challenged whether the claim “Improved Internet Speed” was misleading and could be substantiated because they were of the impression that internet speed was dependent on a user’s internet connection.

2. Four viewers challenged whether the claim “PCMatic could improve download speeds” was misleading and could be substantiated because they believed that download speeds were affected by external factors as opposed to the PC itself.

The ASA upheld both complaints. The ASA was of the impression that the claim “Improves Internet Speed” was ambiguous and considered that some viewers might interpret it as meaning that the connection speed received from the ISP could be increased and that there may be a general improvement in internet browsing speed. Even though the ad used conditional language (i.e, using the word “could”) rather than guaranteeing such improvements, the ASA held that most consumers were likely to understand that, in most cases, using PCMatic’s service would lead to those improvements.

PCMatic submitted evidence to suggest that their service could give download speed improvements. However, the ASA noted that there was nothing to demonstrate that users could benefit from improved speeds in internet browsing or from their ISP. Furthermore, the ASA noted that no background information was provided in relation to the computers tested, such as what operating system and browser were used and the type of internet connection used.

From the data provided, the ASA gathered that PCMatic’s service would only affect PCs using older operating systems and that the browser optimisations applied in the service would only be relevant to older versions of one particular browser. Moreover, the download accelerator that PCMatic used as part of their service would only help PCs using old broadband connections that used a low bandwidth and high latency link. Because of these limitations in the service and because of the lack of background information showing the basis of the results of the evidence, the ASA concluded that the ad was misleading.

When using evidence to substantiate claims, advertisers should ensure that all contextual information surrounding the research or testing carried out is available and that such evidence is up-to-date.