ASA Adjudications Snapshot - July 2015

BUSINESS

1. TheAccountancyPartnership.com Ltd, t/a Pandle, 1 July 2015

Pandle operated a website offering reviews of accounting software. Various software providers were listed with star ratings for their products under seven review criteria including ease of use, speed, features, support, reporting, price, and VAT handling. Overall scores were given as well as detailed descriptions as to how each item of software performed within each category. In addition, Pandle featured its own accounting software product as a ‘Top Rated’ product on the home page on the website. Small print at the bottom of the page stated ‘This website is owned and operated by Pandle’.

Complaint / Decision

Crunch Accounting Ltd, a software provider reviewed on the website, challenged whether the website was misleading because it implied it was an independent website whereas it was operated by Pandle who were featured on the website. They also challenged whether the review of their product was misleading and in breach of the Code because it did not accurately compare their product or provide sufficient information for the basis of the descriptions of its features. For example, their product was described as being ‘slow’, the reporting capabilities as ‘small’ and the price as ‘high’.

The ASA upheld both complaints. The ASA considered that the overall impression created by the website was to provide impartial editorial content. For example, it featured claims such as ‘We review, so you don’t have to!’ and ‘We review, you decide what is best!’. Under the CAP Code, marketing communications must make clear the commercial intent. The ASA considered that because Pandle had included their own product on the website, particularly in such a prominent place, being a ‘Top Rated’ product, the purpose of the website was clearly a marketing communication. 　It did not matter that the review of Pandle’s product had been written by an independent third party, because it had been commissioned by Pandle. The mere inclusion of the qualifying text at the footer of the website indicating that Pandle operated the website was insufficient to make the commercial intent clear, and contradicted the overall impression. As a result the ad was misleading.　

The ASA agreed with the complainant that the terms used to compare the products were subjective and ambiguous and therefore likely to mislead traders about the features of the complainant’s products. The Code states that comparative ads must compare material, relevant, verifiable and representative features of the products. As such features were not used in this review, the advert was in breach of the Code.　

It is important to establish clearly the purpose of any website content. Advertisers should clearly separate reviews of third party products from marketing communications about their own products. Any blurring of the lines could be seen as misleading to the public. The inclusion of qualifying text did not help; the ASA repeatedly makes it clear that qualifying text should be used for the purposes of clarification only and care should be taken that such wording does not contradict the main message of the communication. Care should always be taken with any comparative advertising, and to ensure that the basis for any comparison is clear and that "material, relevant, verifiable and representative" features are being objectively compared, and that there is no denigration. Competitors making a complaint about another advertiser are required to provide evidence that they have tried to resolve their complaint directly with their competitor, before the ASA will agree to take on the complaint.

HOUSEHOLD

2. HPAS Ltd t/a Safestyle UK, 22 July 2015

A TV ad included a character stating "… we got 55% off" as onscreen text stated the same. The voice-over explained "Get your free 55% off quote today" as onscreen text stated "55% OFF NEW WINDOWS AND DOORS".

Complaint / Decision

The complaint questioned whether the percentage discount claim was misleading. The ASA considered that it was and upheld the complaint.

The advertiser explained that it had a rolling schedule of offer and non-offer prices, and that during the previous six months there had been 86 offer days and 86 non-offer days. It also provided a sample of contracts from the promotional period in question and examples of sales made during non-offer periods.

The example contracts provided by the advertiser demonstrated that the quotations represented a discount of 55% of the list prices during the promotional period. However, the ASA noted that during the period between the beginning of 2015 and the complainant seeing the promotion in early March there had been only one three-day period in January during which no promotional price was offered. Further, while there had been a non-promotional period for 35 days at the end of 2014, the products had been offered at either a 55% discount or on a buy-one-get-one-free promotion for the majority of the preceding three months.

The ASA therefore considered that the 55% savings claim was not based on the usual sales price for the products. It concluded that the ads were likely to mislead consumers and were in breach of the Code.

Savings claims can be difficult to substantiate. Where a business offers several promotional prices in a short space of time, the ASA will look to determine the true usual sales price of the goods to ensure the promotion is genuine. Advertisers should pay particular attention to the BIS Pricing Practices Guide, which states the basis for the comparison should always be given and sets out detailed provisions for comparisons with previous trading prices.

HEALTH AND BEAUTY

3. L’Oréal (UK) Ltd, t/a L’Oreal Paris, 22 July 2015

A TV and press ad for L’Oreal Paris Age Perfect moisturising cream featured Helen Mirren.

Complaint / Decision

The complainant believed that post-production techniques had been used to alter Helen Mirren’s appearance, particularly by reducing the lines around her mouth. As a result, they claimed that the ad was misleading as it exaggerated the potential effect of the product. The ASA did not uphold the complaint.

The advertiser provided images of the actress at recent public events and noted that the lines around her mouth in the ads were consistent with these images. Further, it provided a list of post-production techniques used in the press ad, none of which related to wrinkles, and confirmed that no techniques were used on her face in the TV ad. L’Oreal Paris gave the ASA signed affidavits from production agencies who had worked on the ads to this effect and results of instrumental and consumer perception testing regarding the claims made in the ads.

The ASA considered that consumers would expect Helen Mirren to have been professionally styled and made-up for the ads, and to have been photographed and filmed in a flattering way. With regard to the press ad, it considered that, while some retouching had taken place, the changes were minor and did not relate to the claims made. As the result was not misleadingly to exaggerate the effect the product was capable of achieving, the ASA concluded this was an acceptable approach. It also considered that wrinkles were clearly visible on the actress’ face in both ads and that the press images provided were comparable to her image in the ads. As a result, the ASA did not consider the ads to have altered Helen Mirren’s appearance in a way to mislead consumers as to the effect of the product.

Cosmetic and beauty product companies have long been scrutinised for their product claims. The ASA still can take a strict approach over the photographs used, but also does recognise that post-production techniques are widely used in advertising to ensure the product or model is presented in the best way possible. Where this becomes an issue is if they exaggerate or potentially mislead as to the effect of the product. Advertisers should retain any appropriate material, as L’Oreal Paris did in this case, to demonstrate what techniques have been used.

4. Protein World Ltd, 1 July 2015

Prior to investigating the issue, the ASA informed the advertiser that the ads could not appear in their current form due to its concerns about a range of claims regarding health and weight loss. It then undertook a separate investigation into whether the ad was in breach of the Code, considering harm, offence and social responsibility.

Posters for the advertiser’s slimming product stated "ARE YOU BEACH BODY READY?" and featured a woman wearing a bikini.

Complaint / Decision

The 378 complaints questioned whether the ads were offensive and caused harm as:

1. they implied a body shape differing from the ‘idealised’ one presented was inferior; and
2. the combination of the slim woman and the headline was socially irresponsible in the context of an ad for a slimming product.

The ASA did not uphold the challenges, despite the high level of complaints.

The advertiser responded to state that the phrase "beach body" was commonly used to describe looking one’s best and that the question in the ad was intended to therefore invite the public to consider if they were in the shape they wanted to be. Protein World considered that the model had a healthy figure and did not intend the ad to imply everyone should look like the model.

In addition, the advertiser explained that the CAP Copy Advice team had provided pre-publication advice on the ad’s responsibility and possible offence caused.

The ASA considered that "beach body" was understood to mean a toned, athletic physique similar to that of the model. It also made note of the broader meaning of having confidence in one’s physical appearance in swimwear while in public. It did not consider that the model’s image implied that a different body shape was inferior, nor that it would shame women with different shapes into believing they needed to take a slimming supplement to make them feel confident in wearing swimwear in public. The ASA therefore concluded that the headline and image were unlikely to cause serious or widespread offence and were not irresponsible.

The ASA’s initial response prior to investigating the ad was clearly a reaction to the controversy surrounding it. The petitions, complaints and public debate may, however, have been amplified by the advertiser’s response to challenges, rather than a consequence of the offensiveness of the ad itself. This would explain the ASA’s ultimate decision that the ad was not in breach of the Code, despite 378 complaints against it. Media publicity and the use of social media can also help to increase numbers of complaints. The simple fact of a seemingly large number of complaints will not necessarily mean that an ad is considered likely to cause serious or widespread offence.

FINANCIAL

5. TTT Moneycorp Ltd t/a Moneycorp, 1 July 2015

A poster at Heathrow Airport stated "Best rates … Exchange now with moneycorp for the best exchange rates in Heathrow". Small text at the bottom of the poster explained "Moneycorp surveys rates across the airport three times a day to ensure its [sic] offering the best rates on all major currencies. Moneycorp offered better exchange rates than Travelex on all major currencies everyday [sic] in October 2014. This offer applies to buy and sell rates"

Complaint / Decision

A competitor challenged the claims as it understood that they were based on outdated information. The ASA upheld the complaints.

Moneycorp stated that the bureau de change did not use live pricing but that it had implemented a rate monitoring and adjustment policy in response to frequent daily rate changes. By doing so, it aimed to offer the best exchange rates for a large majority of the day. The small text made clear that the claims were based on research conducted in 2014 but that this was not outdated as Moneycorp constantly monitored and adjusted rates to continuously offer the best rates. Moneycorp also provided data for November and December 2014 showing that the competitor had only had a better rate at one instance.

The ASA considered that consumers would regard the claims as stating that Moneycorp had the best rates in Heathrow Airport at all times. As the data provided covered a relatively short period in 2014 and did not state at what specific time the daily monitoring occurred, nor the turnover time for amending the rates accordingly, the ASA considered that the ads were misleading and were not adequately substantiated.

Given the continuously changing nature of exchange rates, a superiority claim by Moneycorp was a bold statement that was highly likely to be challenged. Clarification text should have been included in anticipation of such a complaint in order to explain the true position.

6. Elevate Credit International Ltd t/a Sunny, 1 July 2015　

A TV ad for short term loans featured the claims ‘...they give him the flexibility to repay early, without penalties’ and ‘Discover Sunny.co.uk today. The flexible way to borrow…’ The qualifying text on-screen did not include the Representative Annual Percentage Rate of interest (‘RAPR’). 　

Complaint / Decision

Three complainants challenged whether the failure to include the RAPR was in breach of the advertising rules for financial products. In addition, the ASA challenged whether the claims ‘flexibility to repay early, without penalties’ was in breach of the Code as it presented rights given to consumers in law as a distinctive feature of the advertiser’s offer.

The first complaint was upheld. The rules set out by Financial Conduct Authority (‘FCA’) require that the RAPR be included in advertisements for financial products if certain triggering information is present. This includes where the ad includes an incentive to apply for credit. The ASA considered that the references to flexibility to repay early and without penalties constituted incentives to apply for credit and as such, the RAPR should have been included. This adjudication demonstrates the broad interpretation the ASA takes to the meaning of ‘incentive’ and advertisers should carefully consider whether the RAPR should be included in each advertisement.

As regards the second complaint, despite Clearcast’s finding that the ad was compliant with the Code, the ASA upheld the complaint. Under the Consumer Credit Act, consumers have the right to repay a loan early without additional charge. Sunny put forward the argument that the claim ‘without penalties’ was merely a reference to a feature of their product that consumers could make a saving on the interest they would otherwise have paid, which was not a saving that they were required to offer under law. However, the ASA considered that the claim ‘without penalties’ went further than this, suggesting that consumers would avoid having to pay a penalty fee that they would have to pay elsewhere (i.e. with another lender). Pursuant to this interpretation, the claim was merely a statement of a right under consumer law and not a distinctive feature of the product and as a result was a clear breach of the Code on exaggeration and misleading to consumers. This is also one of the always banned practices under the Consumer Protection from Unfair Trading Regulations and, as such, is a serious breach.

This adjudication demonstrates that the ASA continues to closely scrutinise payday loan ads to ensure that they are socially responsible to ensure the maximum protection for consumers. 　Also, although on the ASA’s interpretation of the ad, there was a clear breach on exaggeration, presenting something in an ad suggesting it is a special feature, whereas it is something generally available to consumers is always likely to be in breach of the Code as exaggerating the benefits of the product or service. This case also shows that the ASA is willing to use its own powers to challenge advertisements where necessary, to protect the interests of consumers.

MOTORING

7. Fiat Group Automobiles UK Ltd t/a Alfa Romeo, 22 July 2015

A TV ad featured a classic Alfa Romeo and new Alfa Romeo Giulietta driving on a public road. The Giulietta approached the classic Alfa Romeo from behind and overtook it.

Complaint / Decision

A complainant challenged whether the ad depicted a car overtaking on a blind bend and therefore condoned dangerous driving. The ASA did not uphold the complaint.

The advertiser explained that the cars were shown driving separately on a single carriageway road with clear road markings, including signs regulating overtaking. It clarified that the bend was not a blind bend and that the road markings allowed for the manoeuvre. Further, the Giulietta indicated while overtaking.

The ASA considered these factors and the fact that the road ahead of the drivers could not be seen in the ad. It concluded that there was no reason to believe the driver of the Giulietta did not have a full view of the road ahead. As a result, it did not consider the ad irresponsible or in breach of the Code.

Vehicle advertising is often subject to complaints regarding potentially irresponsible driving. However, the ASA will generally consider each ad holistically and determine whether the demonstration of performance in the ad amounts to recklessness. It is therefore important for advertisers to consider carefully how an ad may be interpreted and, if demonstrating driving on what appears to be a public road, to take appropriate steps to show responsible driving.

LEISURE

8. Highland Titles Ltd, 22 July 2015

Two sponsored search engine results for the advertiser included the claims:

1. "Buy a Plot in Glencoe – Help Conserve Scottish Landscape"; and
2. "Buy a Plot in Glencoe – Surprise & Impress Your Friends".

Complaint / Decision

A complainant questioned whether "Buy a Plot in Glencoe" was misleading as the plots were located in Glencoe Wood, which was not in the village of Glencoe, nor in the vicinity of the area known as Glencoe. The ASA agreed and upheld the complaint.

The advertiser responded that the plots were in an area of land which it owned and had named "Glencoe Wood", and that it had removed sponsored advertising on Google and Bing, the two channels through which it advertised. However, they became aware, following the complaint, that the founder of the company had opened a private advertising account with Yahoo!, which they believed the ads resulted from.

Unsurprisingly, the ASA considered that consumers would understand the claims to offer plots located in Glencoe village or the area widely known as Glencoe. As the location of the plots was not sufficiently clear, it concluded that simple references to Glencoe were ambiguous and would cause confusion. The ASA determined that the ads breached the Code and that the advertiser should have taken greater care to ensure all ads referring only to Glencoe without further information were withdrawn.

The outcome of this complaint was to be expected. Referring simply to "Glencoe", for a one square foot plot of land a number of miles away from Glencoe itself of was clearly misleading to consumers. However, the company still attracts a certain degree of criticism and current website searches still show references to "Lords & Ladies of Glencoe", so this may not be the end of this story.

HOLIDAYS AND TRAVEL

9. Israeli Government Tourist Office, 1 July 2015

A brochure in a national newspaper advertising Israel and its sites included text stating "OLD CITY, JERUSALEM BY DAY" and a photograph with the caption "… Dramatic sky over Jerusalem…"

Complaint / Decision

The complainant understood the Old City of Jerusalem to be in the Occupied Palestinian Territories and therefore challenged whether the ad misleadingly implied that it was internationally recognised as part of Israel. The ASA originally upheld the complaint in March but then replaced the ruling and changed its verdict.

The Israeli Government Tourist Office (IGTO) explained that the brochure made a clear distinction between Israel and the Occupied Territories, and that references to the Old City did not imply that East Jerusalem and the Old City of Jerusalem formed part of the State of Israel. It considered that the issue of Jerusalem’s sovereignty was widely known to the British public and that the brochure provided practical information on how to visit the Old City, which could be visited via Israel.

The ASA noted that the brochure included text such as "Israel has it all" accompanied with photographs of Jerusalem and considered that in this context the public would understand the ad to mean that the Old City was internationally recognised as part of Israel. However, it understood that the territories were still the subject of much international dispute and considered that, while it would have been preferable for the IGTO to have made this explicit, the ad was placed in a national broadsheet newspaper. The ASA therefore concluded that the average consumer to whom the ad was directed would understand that the territories’ status was subject to dispute.

It considered that the ad was not likely to mislead consumers into taking a transactional decision in relation to visiting the Old City of Jerusalem as, for those to whom it was a significant issue, the disputed status of the Territories would be known and thus the ad would not mislead them into a decision which they would otherwise not have taken. As a result, the ASA did not find the ad in breach of the Code.

It is rare that the ASA reverses its decision on an ad, but in this case, on the basis of a consideration of the public at which the ad was aimed, it has now concluded that the ad would not mislead consumers into taking a different transactional decision. The original decision attracted a fair amount of publicity and so it is not surprising that the Israeli Tourist Office took steps challenge this. However, the revised adjudication does not appear to have attracted anything like the same amount of publicity. Advertisements regarding a political issue are very likely to come under scrutiny, as was recently seen with ads for the expansion of Heathrow and Gatwick, but advertisers should ensure that they comply with the Code in order to avoid upheld complaints.

TELECOMMUNICATIONS

10. Virgin Media Ltd, 22 July 2015

Website for the advertiser promoted two broadband packages stating "…Just £4 a month for 6 months then £17.50 a month + Virgin Phone line (£16.99 a month)… 12 month contract" and "…£25 a month for 12 months then £32 a month … + Virgin Phone line for £16.99 a month".

Complaint / Decision

Two complainants challenged whether the price claims were misleading as they had been told during the minimum term of the contract that their monthly charges would be increased. The ASA upheld the complaint.

In Ofcom’s guidance on mid-contract price rises (January 2014), it was made clear that if a communications provider wanted to increase the monthly core subscription price agreed by the customer, Ofcom would likely regard it as a materially detrimental contract change which required the customer to be given at least one month’s written notice of the price increase and the right to terminate their contract without penalty. The customer should also be made aware of the offered and agreed price before entering into a contract.

The advertiser responded that they had made the promotional price and the subsequent standard price clear. They explained that they advertised the increased prices two months before they were implemented and that the price rise only affected the standard prices, not the promotional prices. The advertiser believed that the Ofcom guidance did not prevent them from implementing a price rise during the minimum term of the contract by an amount that had not been pre-determined.

The ASA noted that consumers consider the monthly price of telecommunication packages as a material factor when comparing them and they therefore understand these prices to be fixed during the minimum term unless told otherwise. It concluded that consumers should have been made aware, through qualifying text, that the price could rise during the minimum term as the contract was a variable one. As a result, it considered the ad was misleading and in breach of the Code.

This adjudication demonstrates the importance of clearly and prominently stating the type of contract being offered and not suggesting prices as fixed for certain periods of time where that is not the case. The ASA have made comments in previous adjudications regarding the placement of qualifying text within the telecommunications sector.

NON-COMMERCIAL

11. Mead Johnson Nutrition (UK) Ltd, 8 July 2015

A TV ad for the advertiser included the following claims:

1. "Cow’s milk allergy affect tens of thousands of babies in the UK"; and
2. "If your baby has been suffering two or more of these symptoms, for several weeks and particularly after feeding, it could be an indicator of … cow’s milk allergy".

Complaint / Decision

A complainant challenged whether the two claims were misleading and could be substantiated, particularly as the basis for the claims was not included in the ad. The ASA did not uphold the complaint.

The advertiser noted that the term "tens of thousands of babies in the UK" more accurately reflected the number range of babies affected by CMA rather than using a definitive number. It supported this claim with studies and articles including statistical bulletins for birth rates. The advertiser explained that the possible symptoms and signs listed in the ad were indicative of CMA and were supported by a wide body of evidence including an article in the British Medical Journal as well as guidance from the National Institution of Clinical Excellence, the World Allergy Organisation and the NHS.

The ASA found that the advertiser’s evidence supported the claims. The ASA made the point in its decision that the information in the supporting evidence was not required to be referenced in the ad itself; the Code requires the advertiser to hold the relevant evidence by way of substantiation. The ASA therefore considered the ad was not misleading and was not in breach of the Code.

This adjudication provides a reminder that although the ASA clearly expects advertisers to hold appropriate evidence to substantiate their claims, this does not need to be referenced in the ad itself. Nevertheless, advertisers should consider whether to include reference to substantiation, for example by footnote, in relation to potentially controversial claims, which should help to reduce the likelihood of complaints.