ASA Adjudications Snapshot – June 2015

RETAIL

1. Yves Saint Laurent SAS t/a Saint Laurent Paris, 3 June 2015

A black and white ad in Elle magazine featured a woman lying on the floor with her hands on her head. She had her eyes closed and was wearing a short black dress, a leather jacket and high heels.

Complaint/ Decision

The complainant considered the model appeared unhealthily thin and challenged whether the ad was irresponsible. The ASA upheld the complaint.

The advertiser stated that they did not agree with the complainant, but did not provide a detailed response. Elle had no comment to make on the complaint.

The ASA considered that the lighting effect and model’s pose drew particular emphasis to the her chest and her legs. As her ribcage was prominent and her thighs and knees seemed to be a similar width, the ASA concluded the model appeared very thin. As a result, it considered that the ad was irresponsible as the model appeared unhealthily underweight.

The weight of models and promotion of unhealthy body image have consistently been controversial in UK advertising, with H&M and Drop Dead Clothing’s ads coming under a great deal of scrutiny. To avoid being deemed irresponsible, advertisers should use models that do not appear unhealthily thin, but also be watchful of the styling, lighting and makeup used in ads, all of which can contribute to the model’s underweight appearance.

TELECOMMUNICATIONS

2. TalkTalk Telecom Ltd t/a TalkTalk, 3 June 2015

A regional press ad was headlined “Britain’s Best Deals on totally unlimited broadband packages” and featured three broadband packages offered by the advertiser with prices for the first 12 months. Each included pricing details and a savings claim on a price tag. The price tags explained the basis for the savings claims was a comparison with another broadband provider over 18 months and referred customers to the small print at the bottom of the ad.

Toward the bottom of the ad text stated “BestDealsOnline” and immediately beneath this “18 mth min term.*†‡ … Britain’s best deal comparisons based over 18 mths.”

Small print explained the basis of the comparison, providing current online prices and promotions, including as offered by other broadband providers for each of the advertised packages.

Complaint/ Decision

Sky questioned whether the claim “Britain’s Best Deals” was misleading and could be substantiated as Sky’s 12-month minimum contract term package was cheaper than TalkTalk over the same time period. The ASA upheld the complaint.

The advertiser responded to say that, while the prices quoted in the ad were available only for the first 12 months of a new customer’s minimum 18-month contract, the comparisons were based on its 18-month minimum term contract because all of its fixed line packages had this minimum term. As a result, it believed this was the best comparison it could give to consumers. Though Sky did offer some 12-month packages, TalkTalk considered that the over 18-month fibre packages were comparable to its offers, and that to compare the 12-month packages would be disingenuous.

The minimum term was repeatedly stated in the ad and TalkTalk considered that the qualifications to the claims were made clear throughout the ad in a way that ensured consumers would give them an appropriate level of attention.

The ASA concluded that the ad repeatedly made prominent references to the cost of the packages over 12 months and therefore created the impression that TalkTalk provided the cheapest package over 12 months. The small text and qualifications explaining that comparisons were based on 18-month periods were not enough to counteract this impression as they were insufficiently prominent. The ASA suggested that the qualification should have been placed in a location allowing it to be read in conjunction with the headline claim, for example, within the body copy detailing the prices.

This adjudication shows how care needs to be taken in crafting claims to ensure that they are not misleading and that any supporting text appropriately substantiates, rather than contradicts, the headline claim. Broadband packages are always subject to scrutiny as the different packages require a consumer’s careful consideration. Here had TalkTalk simply made the explanatory text more prominent the complaint would probably not have been upheld.

MOTORING

3. Volkswagen Group UK Ltd t/a Audi, 3 June 2015

A radio ad featured various broadcasters introducing weather reports. Before the report could start, the ad imitated the station being switched to another radio station. At the end of the ad a voice stated “Quattro, Audi’s legendary all-wheel-drive system gives you confidence in all conditions, so you’ll never have to listen to a weather forecaster again. Audi, Vorsprung Durch Technik.”

Complaint / Decision

The complainant considered the ad encouraged drivers to ignore safety advice in the Highway Code and challenged whether it was, as a result, irresponsible. The ASA did not uphold the complaint.

The advertiser considered that the ad was obviously humorous and would not be taken seriously, with the main aim being to highlight that the car would give drivers confidence in all weather conditions. The choice of exaggerated characters, clearly forced dialogue between broadcasters, and old-fashioned language, implied that the driver would be relieved to turn off the dialogue. As there was no indication that the reports were being turned off in adverse weather condition and none of the broadcasters implied that a severe weather warning was going to be given, the advertiser considered that the ad was light-hearted and would be understood as such.

The ASA concluded that listeners would understand the ad’s humorous tone, reinforced by the exaggerated voices and dialogue, and noted that there were no direct references to severe weather conditions in the ad. Therefore, it considered that it was unlikely that listeners would take the statement “you’ll never have to listen to a weather forecaster again” literally. As a result, the ASA did not uphold the complaint.

This is the second Volkswagen ad for the Quattro challenged in recent months where the ASA has not upheld the complaint. As in the previous adjudication, the ASA has understood that the ad’s aim was to demonstrate the capability of the car in adverse weather conditions, rather than encourage reckless driving. Advertising for vehicles tends to focus on performance, but it must not cross into demonstrating speed or irresponsible driving.

LEISURE

4. Betway Ltd, 17 June 2015

Text on the advertiser’s home page stated “£50 Free Bet*”. The asterisk linked to a tab at the bottom of the page which stated “Bonus Terms”.

Complaint / Decision

A complainant challenged whether, because it did not make significant conditions sufficiently clear, the ad was misleading. The ASA agreed and upheld the complaint.

Betway Ltd acknowledged receipt of the complaint but did not respond substantively to the ASA’s enquiries.

The ASA noted that the offer operated by matching a new customer’s first deposit, and that this was stated in the terms and conditions. It was subject to a maximum deposit of £50 and minimum deposit of £10 and would expire seven days after the first deposit. The customer then needed to place bets amounting to the value of their first deposit. The ASA considered these conditions to be significant and likely to affect consumers’ understanding of the nature of the offer. As such, this should either have been made clear in the ad or, if it was significantly limited in space, the ad should have clearly indicated the offer was subject to significant conditions and directed consumers to these conditions. As the ad took up a full page on the advertiser’s website, the ASA did not consider it to be significantly limited in space. Thus, the conditions, which were on a website one click away from the ad, were not sufficiently clear to consumers. The ASA concluded that the ad was a breach of the code.

Free bet ads will always be a particular focus of attention for the ASA and the ASA is likely to take a strict line. Where space is limited the ASA has allowed relevant terms and conditions to be one click away, but generally provided they are clearly signposted, and space is genuinely limited – and provided they do not contradict earlier claims.

5. WHG (International) Ltd t/a WillHillBet, 17 June 2015

The advertiser’s twitter feed included the following tweets:

(a) an image of a child holding a golf ball and club and jumping in the air. The tweet stated “#TheMasters has started! #yippee”;

(b) two large teddy bears wearing crowns, one with a blue rosette and the other with a pink rosette. The tweet stated “Seen our teddy bears around London today? Send us your pics with #BOYorGIRL & you could win a Grand National Free bet”; and

(c) teddy bears similar to those above in front of the Houses of Parliament with the text “Definitely wearing crowns #BOYorGIRL”.

Complaint / Decision

A complainant questioned whether the ads were irresponsible as they were likely to be of particular appeal to children. The ASA considered they were and therefore upheld the complaint.

Interestingly, the advertiser also agreed that the use of the image of a child and teddy bears was not acceptable and implemented procedures to ensure it was not repeated.

The ASA welcomed the advertiser’s procedural changes. Nevertheless, it pointed to the CAP Code which states that advertising for gambling must not include images of children. The ASA also considered that the large teddy bears, which formed the central focus of the second and third ads, would be seen as children’s toys and would therefore likely be of particular appeal to children. As a result, the ads were found to be in breach of the Code.

The in-the-moment nature of Twitter and other methods of social media may make it more likely for advertisers or their marketing teams to launch promotions or marketing communications which stretch the limits of the Code in the interest of being seen as current. It is clearly important that advertisers take steps to ensure their ads posted on such forums are reviewed with the same level of scrutiny as more conventional advertising.

6. Charlton Athletic Football Company Ltd, 3 June 2015

An online video ad in the style of candid CCTV footage featured on the advertiser’s YouTube channel advertised the opportunity to hire the pitch. It featured a man and woman running onto the pitch at night. The couple appeared to begin to engage in sexual intercourse, at which point the floodlights turned on in the pitch. The woman, whose chest was pixelated, wrapped her jacket around her and the camera moved to the stands which displayed the stadium name, “The Valley”. A voice-over then stated “Fancy scoring at The Valley in May? Contact the sales team now to book the pitch for your team.”

Complaint / Decision

The complainant challenged the ad as being:

1) offensive as it was sexist and derogatory toward women; and

2) harmful and irresponsibly targeted.

The ASA did not uphold the first issue but upheld the second.

The advertiser stated that its target audience was males between the ages of 20 and 30 who would be interested in hiring the stadium for their football teams during the off-season. It considered that the ad would engage with this very specific target audience following an analysis of media and social media channels.

Charlton Athletic Football Company disagreed that the ad was sexist or derogatory and stated that it was not targeted toward children or released onto any children’s platforms. It explained that it had used a PR agency to engage target audience media partners such as FHM and The Lad Bible.

The ASA noted that the woman was seen initiating the break-in to the stadium and did not appear to be a passive or unwilling participant. Further, it considered the euphemism ‘score’ could relate to sexual success by either gender. The woman’s unintentional nudity, while the main source of the humour in the ad, was likely to be understood as embarrassing rather than derogatory as it was a result of her decision to break into the stadium. Therefore, the ASA concluded that woman’s role in the ad was not gratuitous and she was not objectified, and that while some may consider the ad distasteful, it was unlikely to cause serious or widespread offence on the grounds of sexism.

With regards to the second issue, the ASA considered that the ad was unsuitable for children and that therefore care needed to be taken to avoid children viewing the ad. As it appeared on the advertiser’s YouTube channel, which predominantly featured match footage and interviews with fans (including children) and players, the ASA concluded that the ad would potentially be viewed by children and was therefore irresponsibly targeted. As a result it breached the Code on this point.

This response is unsurprising. It stands as a lesson that advertisers need to take steps to ensure ads are properly targeted. Risks are more likely to be taken on ads in media such as YouTube, but there is still a need for careful targeting.

7. Hubbly Bubbly Ltd, 10 June 2015

Claims on the advertiser’s website, Twitter page and in a video on its YouTube channel promoted e-cigarettes:

(a) the website included a “social” page which featured the text “FAMOUS E-CIGARETTE FANS…Robert Pattinson does it. So do Alexa Chung and One Direction’s Zayn Malik. It seems all kinds of celebrities from both sides of the pond are getting in on the electronic cigarette action” and listed celebrities including Cheryl Cole;

(b) a banner image on the advertiser’s Twitter page showed two young women using e-cigarettes;

(c) a Tweet posted by the advertiser showed two young people using e-cigarettes;

(d) a Tweet posted by the advertiser showed a black and white image of a young woman holding an e-cigarette; and

(e) a YouTube video included scenes in bars, clubs and a music concert with shots of Hubbly Bubbly-branded products interspersed with crowd scenes and young people dancing, drinking and using e-cigarettes. The ad used cutting techniques and sequences were re-played, shown in slow motion or played backwards in time to accompanying music.

Complaint / Decision

The Medicines & Healthcare products Regulatory Authority (MHRA) and the ASA challenged whether:

1. ads (a) and (b) breached the Code as they did not make clear that the product contained nicotine;

Hubbly Bubbly responded that the “social” page in ad (a) included blog posts on issues relevant to e-cigarettes, and that the post in question listed celebrities reported as using them. As no specific product had been mentioned, the advertiser did not feel it necessary to mention the nicotine content of their range of e-cigarettes. The ASA considered that the post appeared on a separate section of the website from product promotion and that where products were mentioned in an adjacent blog post, the nicotine content was given. It concluded that the general nature of the blog post, which did not identify any product or product range, as well as the wider context in which it appeared, meant that ad (a) complied with the Code.

In ad (b), Hubbly Bubbly explained that the product displayed was from its nicotine-free range. It considered it would have been confusing to label the products as nicotine-free as they normally sold products containing nicotine. The ASA, however, considered that the ad appeared as a banner on the advertiser’s Twitter page, and therefore served to promote the range of products Hubbly Bubbly offered, some of which contain nicotine. As a result, this information should have been presented either within the image or as part of the surrounding messaging on the Twitter page. Therefore, the ad was in breach of the Code.

2. ads (a) and (b) were irresponsible as they reflected youth culture and were therefore likely to appeal to those less than 18 years old;

Hubbly Bubbly stated that the celebrities listed in ad (a) were adults, and mostly middle-aged men. It considered that Cheryl Cole and Zayn Malik’s music was enjoyed by people of all ages. Hubbly Bubbly also explained that, as the ad was general and did not identify any product, it did not consider it to be in breach of the Code. The ASA acknowledged that the celebrities would have general appeal, but considered that Cheryl Cole and Zayn Malik in particular were likely to appeal to those less than 18 years of age. Therefore, ad (a) reflected youth culture and was irresponsible, regardless of the general content of the ad.

The advertiser explained that the two women featured in ad (b) were adults and pointed to the statement on its Twitter profile explaining that visitors needed to be 18 years old or older to follow their feed. The ASA concluded that the two women were young in appearance and wearing what it characterised as young urban fashion. As a result, it determined that this ad was also likely to appeal to those under 18 and breached the Code.

3. ads (b), (c) and (d) breached the Code as they showed people who appeared under the age of 25 using e-cigarettes;

Hubbly Bubbly stated that the individuals depicted in these ads were all adults in their twenties. However, the advertiser acknowledged that the lighting and make-up used may have affected their perceived age. It therefore removed the ads and stated its intention to use fewer models in future advertising. The ASA explained that the Code specifies that individuals shown in e-cigarette advertising using e-cigarettes or playing a significant role in the ad must look and be over the age of 25. It considered that the women in ads (b), (c) and (d) did not appear 25 years old. Therefore, these ads breached the Code.

4. ad (e) was irresponsible because it was likely to appeal to those under 18 years of age by reflecting youth culture and showed people using e-cigarettes that appeared to be under the age of 25.

Hubbly Bubbly stated that ad (e) had been shot in venues that adults who fell into their target demographic of 21 to 35 year old adults frequented. It explained that the ad only featured individuals over the age of 18 and those who were depicted using e-cigarettes were all over 25. Hubbly Bubbly considered the behaviour shown demonstrated that the people were enjoying themselves and was not juvenile. However, the advertiser also explained that the ad had been published in 2013, prior to specific rules on e-cigarettes were introduced to the CAP Code.

As the ad was still in place in 2015, the ASA concluded that it needed to comply with the rules that had been implemented since its publication. Therefore, the youthful combination of the music, venues, cutting technique and general rave-like context, which included individuals who appeared to be under the age of 25, breached the Code.

This result is unsurprising given the ASA’s strict interpretation of e-cigarette advertising. The adjudication on ad (a) demonstrates that, if using images of celebrities, care needs to be taken with advertising any controversial products to make sure the particular celebrities are not seen as appealing to a young audience. It also serves as a reminder that ads published on social media are still accessible well into the future and will continue to be at risk of falling foul of the Codes.

PROPERTY

8. Henderson Connellan Ltd, 10 June 2015

A leaflet distributed in Leicestershire promoted an estate agent with the claim “#1 MOST SALES AGREED THROUGHOUT 2014 ON RIGHTMOVE.CO.UK IN OUR AREA” and smaller print directly beneath stated “LE16 0, LE16 7, LE16 8, LE16 9, LE8 0, NN14 1, NN14 2, NN6 6, NN6 7 01/01/14 to 31/12/14 - According to Rightmove reports 16/01/2015.” This claim was repeated in the leaflet with three pie charts featuring Rightmove’s branding entitled “MOST NEW INSTRUCTIONS IN OUR AREA THROUGHOUT 2014” and “MOST SALES AGREED IN OUR AREA THROUGHOUT 2014” with small print stating “Data is derived purely from rightmove.co.uk’s internal statistics and advertisers on 26/01/2015, may be subject to specific geography or search criteria and is provided ‘as is’ for general interest only. Rightmove makes no warranty as to the data’s suitability for any purpose and accepts no liability for any action or inaction taken as a consequence of its use.”

Complaint / Decision

A competitor challenged the ad, stating that the data was insufficiently robust to support the claim and that the difference in geographical areas covered by estate agents made a like-for-like comparison misleading. The ASA disagreed and did not uphold the complaint.

The advertiser responded that it had compiled information available through Rightmove, which had authorised the use of the data for external marketing purposes, and reviewed and approved the ad. Henderson Connellan also provided a fuller copy of the data identifying each agent included in the analysis. It also was confident that all agents selling properties in the area registered them on Rightmove and used software that would automatically add properties to the website. Further, it considered that it was clear in the ad that the claim focused on specific postcode areas.

The ASA acknowledged that the advertiser had made the claim based only on the data provided by Rightmove. It considered that there were limitations to the applicability of such data. However, the ASA concluded that the leaflet had identified that the claim was based on Rightmove’s data clearly and prominently as part of the claim itself, as well as the date and area parameters applicable. The additional information in the leaflet provided sufficient context from which to draw an accurate understanding of the claim, and, as a result, the ASA did not consider this claim to breach the Code.

Where an ad involves bold claims care must be taken to identify the relevant substantiated needed. While in this case the ASA did not uphold the complaint, it also made clear that advertisers should avoid making claims that imply a broader body of evidence than is the case. Further, where general market-share claims are made, data from online-only sources could not be used to support the claim.