UK: ASA Adjudications Snapshot - January 2011

This article provides a selection of the most interesting ASA adjudications from January and a summary of the key issues considered in the adjudications.

This month the ASA considered the advertising of medicinal products, highlighting the need for advertisers to comply with the terms of applicable regulatory licences and the need for robust evidence to substantiate medicinal claims.  There are also a number of adjudications relating to pricing issues in promotions, a "number one" claim, the importance of using small print appropriately, guns and religion, and the danger of intemperately language in a comparative advert.

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LEISURE

1. MyCityDeal Ltd t/a Groupon UK, 5 January 2011

(the ASA upheld three challenges against adverts for group buying offers)

2. LOVEFiLM UK Ltd, 12 January 2011

(significant exclusions to an offer must be made clear to consumers)

3. Living TV Group Ltd, 12 January 2011

(poster adverts featuring guns did not glamorise or condone gun crime, as they reflected the content of the advertised television programme and the guns were not shown in an aggressive manner)

4. Daybrook House Promotions Ltd (DHP Group) t/a Thekla Bristol BHP Concerts, 26 January 2011

(an advert featuring notions of confession and sin, together with religious imagery, was not offensive on religious grounds as readers would understand the "tongue-in-cheek" message)

HEALTH AND BEAUTY

5. Clinic of Integrated Medicine Limited, 19 January 2011

(advertisers must not make claims that imply medicinal properties unless they hold the relevant regulatory permissions)

6. Boehringer Ingelheim Ltd, 19 January 2011

(an advert making claims about the performance of a medicinal product conformed to the terms of its regulatory licence and therefore was acceptable)

7. Mentholatum Company Limited, 26 January 2011

(the ASA considered that a pun in an advert was not a call to action, but was a claim capable of substantiation)

RETAIL

8. ASDA Stores Ltd, 5 January 2011

(from the overall impression of the advert consumes would infer that a wider selection of products was included in a promotion)

9. Capital Shopping Centres plc, 19 January 2011

(evidence in substantiation of claims must be up to date, and consumers should be informed of the basis of objective claims)

10. Chums Ltd, 5 January 2011

(the advertiser was unable to demonstrate that the price of a product which was the subject of a "free" claim was genuine)

HOUSEHOLD

11. Telegraph Media Group Ltd t/a The Daily Telegraph, 12 January 2011

(advertisers must provide relevant, up to date test results and be able to demonstrate the methodology of their testing)

12. Rointe, 19 January 2011

(advertisers were unable to substantiate environmental claims with sufficient "cradle to grave" testing)

OTHER

13. Ryanair Ltd, 26 January 2011

(consumers were unable to take full advantage of features mentioned in the advert, due to closure on certain dates within the travel period)

14. General Motors UK Ltd, 5 January 2011

(the ASA examined the use of small print in four adverts for a warranty, as well as the claim that the advertiser was the "first" manufacturer to offer this type of product)

15. PlusNet plc, 26 January 2011

(small print on a bus poster was illegible to a normally sighted person at a reasonable distance)

16. Imagine Estate Agents, 12 January 2011

(the subject of the advert was identifiable from the advert, notwithstanding that they were not explicitly identified)

LEISURE

1. MyCityDeal Ltd t/a Groupon UK, 5 January 2011

This adjudication concerns three adverts for a group-buying website. The first advert, contained in an email, offered "£9.80 instead of £24.50 for two people to enjoy fantastic... food... Save 60%". The second advert, a sales promotion on the advertiser's website, offered consumers an outdoor experience for "£15.50 instead of £39...Save 60%". The advert referred to various terms of the offer, including the minimum age, and the need for advance booking. The third advert, also a sales promotion on the advertiser's website, was in respect of a three-course meal plus tea or coffee for "£29 instead of £83.50... Save 65%".

Complaint/Decision

The adverts attracted complaints from two members of the public. The first advert was considered misleading by one of the complainants, because one person had to pay the full price in order for the second diner to obtain the discounted price, and this was not made clear in the advert. The same complainant argued that the second advert was misleading because it failed to make clear that the deal was not available at weekends unless an extra £10 was paid. The other complainant challenged the third advert on the basis that it misleadingly exaggerated the saving; if two people were to purchase the most expensive menu choices and tea or coffee, the total cost of a three course meal would not amount to £83.50 and therefore the saving did not always amount to 65%.

The ASA upheld all of the complaints. With regard to the first advert, the ASA noted that a drafting error had occurred, which had resulted in the misleading claim. However, the ASA considered that the claim would be understood to mean that two people could take advantage of the advertised price, rather than one person taking advantage of the offer if another paid full price.

With regard to the second complaint, the ASA acknowledged that the advert stated "Fine Print", which listed five terms and conditions. The ASA considered that readers would assume that the conditions listed in the "Fine Print" were the only terms applying to the offer, but noted that the weekend surcharge was not mentioned. The ASA concluded that the £10 weekend surcharge was a significant term that should have been included in the advert, and the omission of this meant that the advert was misleading.

Finally, in respect of the third advert, the ASA considered that the claim implied that consumers would always save 65% when taking advantage of the offer. In fact, this was not the case, as the £83.50 price was based upon regular special dishes which were more expensive; the ASA acknowledged that not every diner would choose the most expensive items. The ASA therefore concluded that the claim was misleading and that the advert should have quoted a saving that was more readily achievable and not dependant upon special dishes being available. The ASA further concluded that the claim should have been qualified, for example with the words "up to", and should have made clear that the maximum saving was calculated using the most expensive menu choices available. If the claim was "Save up to £X or X%" this would have made clear to consumers that the maximum advertised saving would not be available in every case.

This adjudication, which attracted lots of press attention, follows an adjudication against the same advertiser in December 2010 in which three of the four complaints were upheld. There has been a recent rise in group-buying websites, which often promote special pricing offers, packages and discounts. Particular note should also be taken of the OFT's recent study on pricing practices which provides guidance as to situations in which the OFT is likely to take enforcement action. The ASA's decision to uphold the third complaint in respect of the three-course meal is also interesting because it indicates that advertisers should advertise "readily achievable" savings that are not necessarily measured against the most expensive options available and must appropriately qualify any claims for such savings.

2. LOVEFiLM UK Ltd, 12 January 2011

A television advert for LOVEFiLM contained details of one of the advertiser's packages and included the voice-over stating "Want an easy way to rent movies? ... You can have Blu-Rays and DVDs by post, you can watch movies online, and now you can even have movies streamed straight to your internet enabled TV. Did you know we rent games too?...You can even try it for free. Got o lovefilm.com". On screen text stated "FOR YOUR 2 WEEK FREE TRIAL LOVEFiLM.COM" and small print stated "... Subject to compatibility. Ts & Cs apply..."

Complaint/Decision

One person complained that the advert was misleading because he was charged for watching a film online during the trial period.

The ASA noted that the terms and conditions on the advertiser's website stated "Free trials are only available to new subscribers to the LOVEFiLM Rental Service (and not the Pay As You Go Service, the Watch Online Service or any other product or service)". However, the ASA considered that viewers would infer that full use of LOVEFiLM's services (including watching movies online) was included in the two-week free trial, in the absence of qualifying information to the contrary. The exclusion of certain content, such as pay-per-view online content was a significant condition that the ASA concluded should have been made clear in the advert. Accordingly, the ASA upheld the complaint and considered that the advert was misleading.

Advertisers must always ensure that significant terms and conditions of offers are made clear, so as to avoid misleading consumers. This is particularly relevant when packages are advertised, as the combination of features and products may be subject to more complex terms and conditions which may cause confusion.

3. Living TV Group Ltd, 12 January 2011

This adjudication concerns two poster adverts for a television programme. Each poster showed a young woman holding a gun (in one advert, a hand gun and in the other, a rifle). Both adverts featured large red text reading "I KILL FOR LOVE."

Complaint/Decision

The ASA received three complaints that the adverts were offensive, irresponsible and harmful on the basis that they glamorised the use of guns and violence.

The ASA noted that the CAP Copy Advice team had advised the advertiser that the inclusion of the text in conjunction with the images might be problematic, but that the adverts "presented a borderline case". The ASA noted that the adverts were clearly in respect of a new TV series and that, although guns were featured, the adverts did not show violence and the guns were not shown in an aggressive manner. The ASA considered that the text and image reflected the content of the television show being advertised and therefore that the adverts were unlikely to be seen as glamorising guns; the ASA did not uphold the complaints.

This advert is the latest in a series of adverts for films and television programmes featuring guns. Mostly, where the portrayal of guns is not in an aggressive manner and is in the context of the programme or film being advertised, the ASA has not upheld complaints of glamorising gun-use. However, in 2004 the ASA received 361 complaints in respect of a car advert, which were upheld on the basis that the advert made light of public concern in respect of gun crime. In December 2008 the ASA upheld a complaint about a poster advert featuring guns located at Stockwell Tube Station, shortly after the shooting of Jean Charles de Menezes. Accordingly, advertisers must still take care to ensure that adverts are contextually appropriate.

4. Daybrook House Promotions Ltd (DHP Group) t/a Thekla Bristol BHP Concerts, 26 January 2011

An advert in a regional press supplement magazine featured an image of the Virgin Mary holding a disco ball to advertise a themed club night. The text stated "......FREE ENTRY BEFORE 10PM GUILTY POP PLEASURES FOR SINNERS POP CONFESSIONAL...".

Decision

One complainant challenged whether the advert was offensive on the grounds that it mocked Christianity, and Catholicism in particular.

The ASA did not uphold this complaint. Although it noted that the concepts of sinning and confession originated from religion, the ASA considered that they had "become embedded in secular society with a wider application, especially amongst the intended audience"; it did not consider that the advert portrayed religion, or a religious figure, in a negative way. Whilst the ASA acknowledged that the advert might be distasteful to some, it concluded that most of the readership of the advert would interpret the advert as a "tongue-in-cheek joke" in respect of music choices, not in respect of religion.

This is an interesting adjudication, particularly in light of recent decisions on complaints relating to religious offence, such as the Antonio Federici adjudications in October 2010 and September 2010. In this case, contrary to the decision in the September 2010 Antonio Federici advert, the ASA allowed the advert because it took the view that the portrayal of the concepts that originated in religion was light-hearted and did not portray a religious figure negatively. As adverts featuring religious themes are a particularly sensitive area, advertisers must ensure that they approach the use of religious concepts in their adverts with sensitivity.

HEALTH AND BEAUTY

5. Clinic of Integrated Medicine Limited, 19 January 2011

The adjudication concerns two leaflets for hand cream products containing Phytolov. One of the leaflets contained the text "Phytolov Hand Care Cream is designed to care for hands... and to help combat ageing of the hands and dark pigmentation or dark spots on the hands...". The other leaflet bore the heading "Phytolov" and contained text underneath that read, "Muscle Relaxing Balm...". Various claims were made on the reverse of the leaflet including: " ... It is specifically designed for helping disperse stagnation of Qi and blood, eliminating body waste products and toxins ... the balm has an anti-inflammatory effect. It helps repair and regenerate cells in the body. The balm also helps strengthen the fibrous tissues, muscles, tendons and ligaments".

Complaint/Decision

The ASA received one complaint that the claim that the product helped "combat ageing of the hands and dark pigmentation or dark spots on the hands..." was misleading. The ASA itself also challenged whether the claims in the second leaflet were unauthorised medicinal claims.

The ASA upheld both of these complaints. It noted that the product contained vitamins E and C, but it had not seen evidence that these vitamins in cosmetic creams could be utilised by the skin or body. Although the advertiser had made reference to three studies, the studies were not product-specific and therefore the ASA did not consider that these studies alone constituted sufficient evidence to support the claim that the product helped to "combat ageing of the hands and dark pigmentation or dark spots on the hands". The ASA considered that the claims in the second leaflet "implied physiological results and therefore represented the product as medicinal".

This decision is not surprising, but raises interesting issues relevant to advertisers of cosmetics and borderline products. The ASA was concerned at the lack of appropriate substantiation. Advertisers of health and beauty products must also take care not to imply that their products can have medicinal effects unless the products have the relevant marketing authorisation from the Medicines and Healthcare products Regulatory Agency (MHRA). The ASA indicated that, in this case, it was problematic that the product implied physiological results.

6. Boehringer Ingelheim Ltd, 19 January 2011

A radio advert for vitality capsules included the statement "Pharmaton is a unique blend of vitamins, minerals and ginseng clinically proven to relieve periods of exhaustion. Pharmaton is effective at enhancing physical and mental capacity and is suitable for adults of all ages." At the end of the advert a male voice stated "Pharmaton won't turn you into a superhero but it can help you feel super. Pharmaton vitality capsules, more than just a supplement."

Complaint/Decision

The ASA received one complaint that the claim that Pharmaton could enhance mental capacity was misleading and could not be substantiated.

The ASA did not uphold this complaint. It noted the terms of the MHRA licence for Pharmaton and reviewed the accompanying Summary of Product Characteristics. The MHRA licence indicated that one of the ingredients in the product could raise the level of cellular activity increasing physical and mental capacity. Accordingly, the ASA considered that the claim had been substantiated and was not misleading.

This adjudication provides a contrast to the decision in the adjudication above, and is an example of acceptable advertising of medicinal products; the advertiser considered the MHRA licence for the product and ensured that the advert conformed to the terms of the licence.

7. Mentholatum Company Limited, 26 January 2011

This adjudication concerns a television advert for ibuprofen gel. The advert featured a woman swimming in a swimming pool, which, as she swam deeper, turned into the seabed. The advert featured a voice-over stating "Two way action Deep Relief gel contains prescription strength ibuprofen ...Go deeper and discover the effective two way action of Deep Relief gel."

Complaint/Decision

The ASA received one complaint from a company which believed that the claim "contains prescription strength ibuprofen" was misleading and could not be substantiated. It also considered that the words "go deeper" implied that the product could penetrate deeper into tissue than other products.

The ASA noted that the product contained 5% ibuprofen, which was a strength available over the counter. It considered that the claim "prescription strength" implied that the concentration of ibuprofen in the product was at a level only obtainable pursuant to a doctor's prescription and higher than that available over the counter. The ASA therefore upheld the first complaint. The second complaint was noted to be a "visual and verbal pun". However, it considered that, in the context of the advert, the words implied that the product would penetrate into tissue deeper than other products and the ASA had not seen evidence to substantiate this. Accordingly the ASA also upheld this challenge, on the basis that the strength of the product had been exaggerated by the advertiser.

Along with the two adjudications above, this adjudication reminds advertisers that they should be careful when advertising medicinal products. As with all claims relating to all products, advertisers should clearly always ensure that they hold evidence to substantiate claims. Advertisers should also be careful when using puns; although in this case the advertiser intended the words "go deeper" to be a call to action to consumers to search out another possible treatment for their pain, the ASA considered that these words did, in fact, constitute a claim and therefore required evidence in substantiation of this.

RETAIL

8. ASDA Stores Ltd, 5 January 2011

A television advert for ASDA showed a range of toys with a banner stating "1/2 PRICE TOYS". The voice-over stated " The only serious thing in ASDA's Toy Event are the prices! Everything is at least half price!...Our biggest toy event this year..."

Complaint/Decision

A competitor and a member of the public complained that the advert was misleading because they understood that the promotion only applied to selected items.

The ASA considered that the overall impression of the advert indicated that the range of toys featured was only a selection of those included in the Toy Event and concluded that viewers would infer from the advert that all toys at the store were included in the event, which was not the case. Although all products in the Toy Event were half price or less, because there was no qualification to the statement, the advert was misleading and the complaint was upheld.

Advertisers should be aware not only of the literal meanings of the claims made in their adverts, but also any implied claims and the overall impression that consumers are likely to take from the advert. Advertisers should ensure that any statements that could otherwise mislead consumes are appropriately qualified.

9. Capital Shopping Centres plc, 19 January 2011

A television advert for a shopping centre showed clips with a voice-over stating "Officially Britain's Best Shopping Centre...". On-screen text also stated "Britain's Best Shopping Centre".

Complaint/Decision

One viewer challenged whether the claim "Officially Britain's Best Shopping Centre..." could be substantiated.

The ASA considered that the claim "Officially Britain's Best Shopping Centre..." was objective and therefore capable of substantiation. Accordingly the ASA considered that consumers would assume that the features of the shopping centre had been measured against other shopping centres and that the shopping centre in question had been rated as the best. The advertiser referred the ASA to a survey undertaken by leading information providers to the shopping centre industry, which was in general terms acceptable to the ASA. However, the survey was carried out on a biannual basis; the evidence submitted was the most recent survey when the advert was shown, but actually dated back to 2008. Neither this limitation, nor any information as to the organisation who carried out the survey was given to consumers. The ASA concluded that this was important and likely to affect consumers' understanding; the omission of this made the advert misleading and the complaint was upheld.

This decision reminds advertisers that, where they are making objective statements about a product or service, they must hold evidence to substantiate this, particularly important when seeking to make a "number one" claim. Substantiating evidence should be as up to date as possible and consumers should be made aware of the basis for claims and any appropriate qualifications.

10. Chums Ltd, 5 January 2011

A press advert for boots offered "FREE PAIR OF MEN'S AND LADIES [sic] WATERPROOF BOOTS FOR EVERY READER". Further text stated "BUY ONE PAIR FOR £24.99+p&p GET A SECOND PAIR FREE".

Complaint/Decision

One complainant challenged whether the claim "BUY ONE PAIR FOR £24.99+p&p GET A SECOND PAIR FREE" was misleading because they believed that the price had been inflated in order to cover the cost of the second pair of boots.

The ASA upheld this complaint. It noted that the boots originally retailed at £19.99 per pair in 2008, but that this had been increased to £24.99 per pair in 2010. Notwithstanding this, the ASA had not been provided with evidence that the advertiser had actually sold any boots at either price and the advertiser had only provided a link to a competitor's website to show that similar boots were on sale for £19.99 per pair. The ASA did not consider that a price on a competitor's website was sufficient to demonstrate that the advertised price was genuine.

Advertisers are reminded that, to avoid breaching the Consumer Protection from Unfair Trading Regulations 2008, they must only advertise genuine prices. Prices cannot be inflated to cover the costs of special offers. The OFT has recently issued guidance on volume and free offers and CAP's Copy Advice team has also issued a help note to assist advertiser making "free" claims.

HOUSEHOLD

11. Telegraph Media Group Ltd t/a The Daily Telegraph, 12 January 2011

This adjudication concerns a national press promotion for a vacuum cleaner, which included the claim: "The Ultraone is the ultimate in super quiet technology ... [and] comes out top in all performance tests. These independent tests show that it out-performs leading competitors for air flow as well as dust pick-up on all surfaces - anything from hard flooring through to carpet".

Complaint/Decision

A competitor challenged whether the claims in the advert were misleading and could be substantiated.

The ASA noted that only four models of vacuum cleaners had been tested in 2008 and 2009. Although the advertiser believed that its product had demonstrated superior results in both of these tests, the ASA was not provided with information as to why those four particular models had been tested or evidence that the test results were still relevant in 2010. Further, the advertised product had not been one of the four models subjected to the tests; the advertiser had tested one of its other products. Accordingly, the ASA concluded that the test results were not sufficient to substantiate the efficacy claim in the promotion.

Advertisers must provide robust evidence to support efficacy claims. Such evidence must be relevant to the specific advertised product or service and must be up to date. Where advertisers rely on test results, they must be able to provide evidence of methodology to the ASA. CAP's Copy Advice guidelines in respect of marketing vacuum cleaners may be of assistance in respect of testing.

12. Rointe, 19 January 2011

A magazine advert and brochure for heating devices contained several claims including "60% ENERGY SAVING...", "0% co2 EMISSIONS..." and "0% pollution". The brochure also stated "NO EXPLOSIONS According to statistics, in 2008 there were more than 400,000 explosions of different magnitudes when using combustion for boilers or water heaters ... NO CO2 Any kind of combustion produces fumes and carbon dioxide, so dangerous for the human life. If there is no combustion, there are no fumes or carbon dioxide ... NO FUELS The fact of having gas or liquid fuels at home, even with all the safety mechanisms, represents an important risk and, unfortunately sometimes, it has fatal consequences ...".

Complaint/Decision

Two complainants challenged whether the "60% ENERGY SAVING" claim was misleading and could be substantiated. A further complainant challenged whether the zero pollution and zero carbon dioxide claims were exaggerated and misleading, and also that the references to explosions and risk to human life were exaggerated and likely to cause undue fear.

The ASA upheld all of the complaints on the basis that the advertiser had not sent any test results to the ASA to substantiate the claims. The ASA noted that it was unclear as to what product the advertiser was comparing theirs against in order to measure energy savings and, accordingly, the "60% ENERGY SAVING" claim was misleading. In respect of the zero emissions and zero pollution claims, the ASA noted that the advertiser had not taken into account the full life cycle of the product from manufacturer to disposal and, in the absence of appropriate test results, these claims were misleading. Finally, in respect of the health and safety statements, the ASA considered that the claims in the advert implied that there was a real danger to consumers and that the advertiser's products were safer than alternative products. The ASA considered that readers would expect the claims to be based upon official statistics and that the advertiser had not provided the rationale or justification for such claims. Accordingly the ASA considered that these claims were misleading.

Advertisers must take particular care when making environmental claims as this is an area likely to attract complaints and also an area of concern for the ASA/CAP. If emissions or pollution claims are made, the advertiser must be able to produce appropriate "cradle to grave" testing, demonstrating substantiation of the claim throughout the lifetime of the product (including manufacture and disposal). Further, advertisers must ensure that they can confirm the source of any statistics quoted, and ensure any comparative advertising is clear.

OTHER

13. Ryanair Ltd, 26 January 2011

The advert, which featured in national press, advertised airfares to Denmark. It stated "Family Fun in DENMARK ONE WAY FROM £9 TAXES AND CHARGES INCLUDED." The advert listed several experiences including "Visit Legoland Billund". At the bottom of the advert, text stated "TRAVEL NOVEMBER - JANUARY RYANAIR".

Complaint/Decision

The ASA received one complaint that the statement "Visit Legoland Billund" was misleading because the Legoland resort had limited availability between November and January and the theme park was not open at all.

The ASA noted that the Visit Denmark organisation had actually provided the copy content in respect of the attractions but that it had not signed off the final advert with the travel applicability. It considered that the advert implied that consumers travelling between November and January would be able to fully enjoy the attractions listed and therefore decided that the advert was misleading.

This advertiser has a history of complaints and adverse adjudications about its advertising. There have also been several recent availability decisions, for example that in respect of the Airline Seat Company Limited in December 2010. This decision reminds advertisers that they need to ensure adequate availability of products and services.

14. General Motors UK Ltd, 5 January 2011

This adjudication relates to press, poster, television and internet adverts. The national press advert stated "A warranty can now last a lifetime The Vauxhall Lifetime 100,000 Mile Warranty 100,000 mile limit Available on all new cars for the first owner*..." Small print text at the foot of the ad stated "Vauxhall Lifetime Warranty covers lifetime ownership of first car owner. 100,000 mile limit...Terms and conditions apply". The poster contained similar claims in the main and small print, although the limitations to the warranty were stated in the small print. The TV advert featured numerous archive clips from old Vauxhall adverts. The voice-over stated "... we're the first manufacturer in the UK to offer you a warranty that could last a lifetime." Text on screen stated "Warranty covers ownership of 1st car owner. 100,000 mile limit...Terms and conditions apply." The internet advert stated "A warranty can now last a lifetime", "The Vauxhall Lifetime 100,000 Mile Warranty", and a link to the Vauxhall website that was labelled "find out more".

Complaint/Decision

The ASA received 45 complaints that the "lifetime warranty" featured in the various adverts was contradicted by the text stating that it was only valid for the first owner of the car and limited to 100,000 miles. One complainant stated that this was not made clear in the internet advert. Further, two complainants challenged whether the claim in the television advert that the advertiser was "the first manufacturer in the UK to offer... a warranty that could last a lifetime" was misleading, because they considered that other manufacturers had previously offered a lifetime warranty.

The complaints were partly upheld.

The ASA noted research submitted by the advertiser that 96.08% of car drivers would not reach 100,000 miles during their lifetime of ownership and therefore considered that most new car buyers would be covered by the terms of the warranty irrespective of the mileage limit. The ASA reviewed the wording of the advert, comprising the headline claim, the explanatory text and the small print, and determined that explanatory text and small print clarified, rather than contradicted, the main claim. In respect of the television advert, the ASA considered that the mileage and ownership limitations were clearly shown on screen and viewers were reminded of the mileage limitation at the end of the advert. Accordingly complaints specifically about the display of the terms and conditions in the press and television adverts were not upheld.

The ASA also considered that the wording "The Vauxhall Lifetime 100,000 Mile Warranty" made it clear that the warranty was limited to 100,000 miles and that the internet advert was therefore not misleading.

However, the ASA considered that the poster advert should have contained the limitations in the main claim, rather than the small print; in its current format the ASA concluded that the small print was contradictory to the main claim and that the advert was therefore misleading.

Finally, in respect of the claim that the advertiser was "the first manufacturer in the UK to offer you a warranty that could last a lifetime", the ASA considered that a warranty with a 100,000-mile limit had previously been offered by a different manufacturer, but that this had been subject to a seven-year time restriction. As the advertiser's warranty was not time-limited, the ASA acknowledged that this was different to the previously offered warranty. Notwithstanding this, the ASA concluded that the main message of the advert was the 100,000 mile limit and, because a 100,000 mile warranty had been offered in the past, the ASA considered that the advertiser's claim was misleading.

This decision follows the adjudication in respect of Kia Motors in August 2010. This reminds advertisers that small print should clarify, rather than contradict the main claim. The decision in respect of the "first manufacturer" claim in interesting; notwithstanding that the advertiser was the first to offer a 100,000 mile warranty with no time limitations, the ASA considered that the main purpose of the advert was to promote a 100,000 mile warranty. Accordingly, because this element of the warranty had been offered previously, the ASA adjudicated against the advertiser. This reminds advertisers that they must consider the main purpose of the advert when making absolute claims.

15. PlusNet plc, 26 January 2011

A poster advertising broadband featured a price promise with an asterisk directing readers to small print with terms and conditions.

Complaint/Decision

The ASA received one complaint from a member of the public who had seen the poster on the back of a bus and considered that the small print was illegible.

The ASA noted that the CAP Code did not specify a minimum size for small print in posters, however considered that the print should be "clearly visible to a normally sighted person reading the marketing communication once from a reasonable distance and at a reasonable speed". Part of the headline claim read "SEE IF YOU CAN GET £6.49 BROADBAND" which the ASA considered made clear that the offer might not be available to all. As the small print was illegible, the ASA did not consider that consumers would be able to read the qualifying criteria easily; accordingly the complaint was upheld.

In this case the standard against which the ASA measured the small print was that of a normally sighted person at a reasonable distance from the advert moving at reasonable speed; this does not give definitive guidance as to what size text should be, although this is useful guidance for advertisers.

16. Imagine Estate Agents, 12 January 2011

A somewhat entertaining regional press advert for an estate agent was headlined "ADVERTISING STANDARDS". Text in the body copy continued "We have had the delight of dealing with the fallout after one of our less amiable competitors complained we had created a leaflet that contravened ASA regulations and reported us accordingly. In fact let's not pull any punches, this wasn't one of our less amiable competitors, this was by some distance the most unpleasant little reptile I have ever had the misfortune to cross swords with since plying this trade...The problem arose out of frustration that the guy was claiming service standards that we knew he simply didn't deliver in reality. Following yet another discovery of dubious business practice by this business one of my staff took it upon themselves to design a leaflet highlighting the service failings we knew of..."

The advert made various other comments, such as "...for this horrible weasel I am prepared to make an exception!!!"

Complaint/Decision

The complainant challenged whether the claims "...claiming service standards that we knew he simply didn't deliver in reality" and"Following yet another discovery of dubious business practice by this business..."were misleading and could be substantiated, and also whether the advert was denigratory of their business.

In its response to the ASA the advertiser relied upon the fact that it had made no mention of the complainant's company name. However, the ASA considered that it would not be difficult for readers to ascertain the complainant's identity in light of the earlier ASA adjudication referred to in the advert. The ASA upheld both complaints; in respect of the specific claims made the ASA noted that the advertiser had not provided evidence in substantiation of the claims. In respect of the complaint regarding denigration of the complainant's business, the ASA considered that the claims in the advert suggested that the complainant's business was unprofessional and untrustworthy, and the complaint was, not surprisingly, upheld.

Although a rather extreme example, this adjudication is a reminder that it does not matter that the subject-matter of an advert is not explicitly identified; the ASA concluded in this case that the subject of the advert (the complainant) was identifiable from text of the advert. This is of particular relevance for advertisers who use comparative advertising in their promotions.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 23/02/2011.