This article provides a selection of the most interesting ASA adjudications from January and a summary of the key issues considered in those adjudications.
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ADJUDICATIONS
COSMETICS
1. Rodial Ltd, 11 January 2012 (The ASA considered
that the name of an advertised product can also act as a product
claim and can itself be misleading)
2. Optical Express Ltd, 4 January 2012 (Exclusions
of certain categories of people from test samples should be
justifiable and made clear to consumers)
3. MyCityDeal Ltd, 25 January 2012 (An advert for
a product claiming to have "temporary freeze-like
effects" was found to be likely to be interpreted by consumers
as having a similar effect to injected fillers)
COMPUTERS AND
TELECOMS
4. TalkTalk Telecom Ltd, 4 January 2012 (Claims to
being the "safest" broadband service were not
substantiated)
5. Virgin Media Ltd, 18 January 2012 (Adverts
comparing Virgin Media and BSkyB services were considered
misleading because they did not contain up to date
information)
6. Lions Gate UK Ltd, 18 January 2012 (The ASA
considered an advert for an action film posted on YouTube)
ENERGY
7. General Motors UK Ltd t/a Vauxhall, 11 January
2012 (The ASA considered the efficacy of "green" claims
in the absence of industry standards)
8. HomeSun Ltd, 4 January 2012 (Complaints about
the use of the claim "free" in relation to savings and
investments relating to solar panels were not upheld)
9. Quooker UK Ltd, 4 January 2012 (The ASA
considered that "eco-friendly" claims should relate to a
product's total environmental impact, taking into account its
full lifecycle)
FASHION
10. Calvin Klein Inc, 18 January 2012 (The ASA did
not uphold complaints against Calvin Klein lingerie adverts
featured on the side of buses)
FOOD &
DRINK
11. Miller Brands (UK) Ltd, 4 January 2012 (The
ASA considered whether alcohol is linked with driving in an advert
for Peroni featuring a woman sitting in a car)
MUSIC
12. Universal Music UK Ltd, 25 January 2012 (The
ASA considered whether two adverts for music videos are unsuitable
for children)
TRAVEL &
TOURISM
13. easyJet Airline Co Ltd, 4 January 2012
(Complaints by Thomas Cook concerning comparative adverts were not
upheld, complaints made by a member of the public were)
14. MyCityDeal Ltd, 4 January 2012 (Groupon were
told to make clear that compulsory charges, as well as taxes, are
excluded from quoted flight prices)
OTHER
15. Cocktails Ltd, 4 January 2012 (Roadside
posters for SEXy ADULT STORE were not deemed unsuitable)
16. Paddy Power Plc, 4 January 2012 (The ASA
upheld a complaint about the use of the image of a sports star
under the age of 25 in gambling adverts)
COSMETICS
1. Rodial Ltd, 11 January 2012
This adjudication concerned an advert on Rodial's website and
an email advert promoting a product called "body
sculpture". The website included the claims "body
sculpture is an intensive gel that is formulated to help moisturise
skin in problem areas. The fast acting formula of body sculpture is
promoted when massaged onto the body". There was also a
testimonial that stated "These products really work and if you
compare with the price of plastic surgery you'll see that they
are not expensive at all". The email stated "Forget the
facelift" and "sculpt and firm your jawline without the
need for surgery".
Complaint / Decision
One complainant challenged whether the adverts were
misleading because they implied that the product was as effective
as surgery. The ASA also challenged whether the name of the product
implied that it would improve body shape.
Both the complaints were upheld. The ASA considered the claims
"Forget the facelift" and "without the need for
surgery" combined with the testimonial "....compare with
the price of plastic surgery...." were statements that clearly
described the product as an alternative to surgery, and implied
that it was as effective as surgery. Rodial also argued that the
name of the product, "body sculpt", was just being used
as a trade mark and, as such, was not being used to provide a
description of the product.
Although the ASA considered that the testimonial could be a
genuinely held opinion, and did not appear to have any issue with
regard to the testimonial, in respect of which the ASA has strict
criteria, they noted that no evidence was presented to demonstrate
that the product was an effective alternative to plastic surgery,
or that the name had been trade marked and so the claims were
considered to be misleading.
The fact that Rodial was not able to refer to a registered trade
mark for the brand was unhelpful. Nevertheless, even where a
product name is also a trade mark, if the ASA considers that the
brand name is being used also as a product claim, they are likely
to take issue.
2. Optical Express Ltd, 4 January 2012
This adjudication concerned a television advert for laser eye
surgery. A voice-over stated "Optical Express have carried out
more than one million laser eye surgery procedures worldwide...over
99% of patients achieve 20/20 vision or better". Qualifying on
screen text stated "99% of 61,142 treatments". The
voice-over added "99% would recommend Optical Express laser
eye surgery to their friends and family" and qualifying text
read "99% of 35,818 patient responses".
Complaint / Decision
One complainant challenged whether the claim that 99% of patients
achieve 20/20 vision or better could be substantiated.
The complaint was upheld. The ASA reviewed data that was being
relied upon for the claims. The ASA agreed that it was reasonable
to exclude from the study any patients who were not aiming for
perfect distance vision. However, the ASA was concerned there was
no suitable explanation as to why certain patients had been
excluded. The ASA considered that consumers would interpret the
claim to mean that 99% of all patients achieved 20/20 vision and
that the qualifying text referring to 61,142 treatments would be
interpreted as referring to a study of a representative sample of
patients. The ASA also considered that the impression would be
emphasised by the earlier reference to "more than one million
laser eye surgery procedures". Although the ASA considered
that the sample size of 61,142 was adequate in the context of an
advert that referred to one million procedures, since various
patient groups were excluded from the sample, the evidence was not
representative of all patients. The claim was therefore found to be
unsubstantiated and misleading.
Exclusion of a category of people from a sample should only be
considered where there is a justifiable reason. If exclusions are
made, this fact should be made clear to consumers. This
adjudication demonstrates that, although the qualifying text was
generally acceptable in terms of the overall claim, the claim was
still misleading in terms of those patients excluded from the
study. Had the qualification also referred to the exclusions, there
may not have been an issue.
3. MyCityDeal Ltd, 25 January 2012
As reported in last month's ASA Adjudication snapshot, Groupon
has been the subject of numerous ASA adjudications and is now being
investigated by the OFT. This month sees yet another adjudication
against Groupon, this time concerning a promotion for a face serum
that was headlined "Wrinkle Killer Snake Serum". Text
below included "Temporary freeze-like effects on the face
muscles. Helps reduce the appearance of fine lines and wrinkles.
Helps tackle the signs of ageing. Leaves the skin looking
younger".
Complaint / Decision
One complainant challenged whether the various efficacy claims were
misleading and could be substantiated.
All of the complaints were upheld. The ASA considered that the
"Temporary freeze-like effects" claim, alongside the
headline "Wrinkle Killer", would be interpreted by
consumers as suggesting that the product had an effect similar to
injected fillers, rather than as relating to a temporary
moisturising effect (as was suggested by Groupon).
The evidence provided by Groupon was considered by the ASA as
inadequate to back up the claim: one study did not relate to tests
on humans, another stated that the effect was dose-dependent and it
was unclear from the study what level of active ingredient was used
in the product and another study only concerned 15 subjects who
used a cream rather than a serum. Therefore the ASA considered that
the claim was not substantiated and was misleading.
In relation to the other claims relating to the effects on wrinkles
and signs of ageing, the ASA noted that it was generally accepted
that anti-aging creams worked by moisturising the skin and that
claims that such products could have a temporary effect only on the
appearance of wrinkles might be acceptable. However, the ASA
considered that in the context of the headline claim, the advert
did not make clear that the effects of the product in question
could only be temporary. Therefore, the ASA found the advert to be
misleading. Although the "freeze like" effect was
described as "temporary" the other efficacy claims did
not carry this clarification. Advertisers should assess the
impression created by an advert as a whole in considering how a
claim is likely to be interpreted.
As mentioned in our previous
snapshot, the ASA now have a panel of dermatology experts who
advise on the adequacy of evidence supporting claims in adverts in
relation to this type of complaint. Those intending to make such
efficacy claims should also consider the ASA's Guidance on test
protocols for certain claims in cosmetics advertising, also
referred to in our December snapshot.
COMPUTERS AND TELECOMS
4. TalkTalk Telecom Ltd, 4 January 2012
This adjudication concerned a television advert; poster advert and
national press advert for broadband. The television advert featured
a toy family in a dolls house, guarded by a row of tiny soldiers.
The voice-over said "Talk Talk homes have the UK's safest
broadband thanks to HomeSafe, free for all customers. No wonder
thousands of homes join Talk Talk every day..." The poster
stated "The UK's safest broadband is now £3.25 a
month" and "Includes HomeSafe, the UK's first and
only network level security". The national press advert stated
"The UK's safest broadband £3.25 a
month..."
Complaint / Decision
BT plc and two members of the public challenged whether the claim
that the broadband was the "UK's safest" was
misleading and could be substantiated.
The complaint was upheld in relation to each form of advertisement.
The ASA considered that the claim in the advert implied that
customers would enjoy the safest online experience when using Talk
Talk broadband. TalkTalk argued that the claim was based on them
being the only home broadband providers in the UK to apply security
features at network level, rather than by making them available for
specific devices via a download, which interpretation they claimed
was supported by previous ASA decisions. The ASA disagreed, saying
that the reference to "network level security" could
easily be misinterpreted to refer to other features such as the
wireless connection from the router to the computer, since it was
not a commonly used term.
Talk Talk also submitted that the claim related to the safety of
the broadband connection at the point of entry to the home, they
were not claiming to provide the safest online experience. The ASA
acknowledged that TalkTalk were the only provider to offer the
security features at network level and that HomeSafe offered safety
features, also content restriction, virus alerts and parental
controls, but thought that "safe" would not cover these.
The ASA disagreed with Talk Talk's interpretation of
"broadband", instead of focusing on what customers would
understand in the context.
The ASA considered that, because Talk Talk had been unable to
substantiate that customers would enjoy the safest online
experience with them, the claim was misleading.
This adjudication demonstrates the difficulty in relying on a claim
which, on the one hand is effectively a "number one"
claim (i.e. the "safest"), without there being any clear
definition or even indication in the advert, as to the precise
meaning behind the claim. Unless the meaning of any particular term
is clear, there is a risk that the implied meaning attributed by
the ASA is different to that envisaged by the advertiser
itself.
5. Virgin Media Ltd, 18 January 2012
This adjudication concerned two adverts comparing Virgin Media and
Sky services. Virgin's website featured two comparison tables.
The first table stated, "How TiVo's functionality stacks
up against Sky+HD with Sky Anytime+" and that a TiVo 1Tb box
was £99.95 while a Sky+HD 1Tb box was £149. There was
also small print detailing the prices and some terms applicable to
both existing and new customers. The second table was titled
"Content comparison" and a comparison row titled
"Video on Demand" included 4600 hours in the Virgin Media
column and 1500 hours in the Sky column.
Complaint / Decision
BSkyB challenged whether the comparison in the first table was
misleading because the cost to upgrade to Sky+HD for existing
customers was £49 not £149. They also challenged
whether the second comparison table was misleading because Sky
offered 3,000 hours a month.
Both complaints were upheld. Although the ASA considered that the
figures in the first comparison table were accurate, the small
print suggested that the price for existing customers was
£149 when in fact it was £49, and the table did not
include the price for existing customers. The inclusion of the
wording "prices are for new customers" in bold font was
considered not to be sufficient to prevent the table from being
misleading. In fact, the ASA stated that the information should be
clear and relevant to both existing and new customers (it should
have also included data for the costs to existing customers). The
ASA also noted that a report by Sky in January 2011 stated
"1,500 hours of content and growing" and so Virgin should
have been aware that the hours of content were likely to increase
between January 2011 and the date the advert was run (July).
Therefore, the ASA considered that it was not reasonable for Virgin
to rely on January figures for the comparison. As a result, the ASA
considered that the claim had not been substantiated and was
misleading.
This case emphasises the importance of sourcing the most up to date
information when seeking to make comparisons with competitor
products or services. It is also of note that the ASA made clear
that comparison tables of this nature should include prices for
both new and existing customers.
6. Lions Gate UK Ltd, 18 January 2012
This adjudication concerns an internet video advert for a 12A rated
film, Abduction, viewed on YouTube in September 2011. It appeared
before an animated clip called "The Duck Song" and
included sequences of shooting, vehicle chases, punching, a couple
kissing and a man who kicked his way through a window". The
voice-over stated "An assassin wants him dead".
Complaint / Decision
The complainant, whose two-year-old saw the advert, challenged
whether it was irresponsible because she believed it was
inappropriate to be shown during a video addressed to
children.
The ASA upheld the complaint. The ASA noted that the advert
reflected the content of an action film, however, because of the
scenes it included (such as shooting), it was unsuitable for
younger children. Although the ASA noted that in order to create a
YouTube account, users were required to confirm that they were at
least 13 years old, they noted that the material was accessible
without needing to log in to an account and therefore it was not
possible to prevent under 13s from viewing it. In addition, users
accessing in this manner would be unaware of the over 13s
policy.
The ASA was presented with data that was provided from YouTube to
potential advertisers, that indicated that children were likely to
view footage and therefore adverts on YouTube. The ASA also noted
that YouTube offered advertisers the option of
"age-gating" their marketing material, whereby the advert
would be targeted via the date of birth of registered users and
would only be available to view by users who were logged in and met
the age criteria. Since the advert appeared in the Duck song clip
which would likely appeal to children, and since it could be viewed
by all YouTube users (without logging in, and with no age-gating in
place), the advert was considered to be inappropriately
targeted.
Advertisers choosing to advertise on this sort of medium should pay
particular attention to the relevant advertising policies,
for example, in particular the ability to age-gate adverts, as
this may be a practical and effective way of ensuring adverts are
not inappropriately targeted at children. It remains to be seen the
extent to which this succeeds in protecting advertisers from having
complaints upheld by the ASA.
ENERGY
7. General Motors UK Ltd t/a Vauxhall, 11
January 2012
This adjudication concerned an advert for the Vauxhall Ampera. It
stated "When the internal combustion engine is used to supply
the drive unit with electricity, it runs at a fixed speed, which
makes it more efficient than a normal car engine. Under normal
driving conditions where 80% of daily journeys are less than 30
miles, the combination of battery power and extended range
technology deliver up to 175 miles per gallon of fuel whilst
emitting less than 40g/km of CO2 (ECE R101 Test Cycle)".
Complaint / Decision
The ASA received a complaint in relation to this advert from an
automotive journalist who challenged whether the claims that
"the combination of battery power and extended range
technology deliver up to 175 miles per gallon of fuel" and
that "the car could emit less than 40g/km of C02" were
misleading and could be substantiated.
The complaints were not upheld. The ASA noted that the 175 miles
per gallon claim had been calculated in accordance with European
regulations, and that the claim made clear what conditions the fuel
consumption was calculated under. On this basis, the ASA considered
that readers would not be misled. In relation to the second claim,
the complainant believed the claim to be misleading because it did
not take into account emissions from electricity used in the car.
The ASA usually requires green claims to look at issues
holistically. However, here, although the ASA acknowledged that
there would be emissions from electricity in powering the car,
since there was no agreed industry standard by which to measure
those emissions, and since the advert stated "under normal
driving conditions", the ASA considered that in this context,
readers would understand the reference to refer only to C02
emissions claim emitted when the car is actually being driven.
Therefore, they considered that the claim was not misleading.
The ASA is always particularly alert to "green" claims.
However, this adjudication shows the ASA taking a pragmatic view of
what consumers would consider sensible in the absence of industry
standards. It is interesting to note that the adjudication does not
refer to the ASA having been provided with a study or test results
in this case, something which they usually insist on in these
circumstances.
8. HomeSun Ltd, 4 January 2012
This adjudication concerns a press advert and website for HomeSun
solar panel installation, both of which included text such as
"Save on you electricity bills, FREE solar, FREE installation,
FREE maintenance". The press advert stated "Happy
Birthday Free Solar! And many happy returns to thousands of
homeowners – like Mr Arnold who saved £359 on
electricity bills in year 1". The terms and conditions stated
Mr Arnold's electricity usage and claimed that "Free Solar
includes all elements of the solar system, installation and
maintenance for 25 years including the cost of replacement parts.
SolarShare involves a one-off cost of up to £500". The
Website had a section entitled "Grants and FiTS" that
included the text "If you don't have the money to invest
or you want it for something else...Free Solar or SolarShare may be
an option. These are more of a partnership – HomeSun buy
and maintains the solar system for you and receives the Feed-in
tariff to recoup its investment..." Another section of the
website included text "Solar PV using FiTS are projected to
give you an annual tax free 5 – 8% return on your money
for a 25 year period and a breakeven time of about 10
years".
Complaint / Decision
One complainant challenged whether the savings claim "Save on
your electricity bills, FREE solar, FREE installation, FREE
maintenance" was misleading and whether the other saving
claims referred to in the adverts could be substantiated.
The complaints were not upheld.
HomeSun explained that they had three types of solar power offers
(Buy solar, Free solar and Solar Share), each requiring different
payments. The "FREE solar, FREE installation..." claim
related to the Free Solar service, which made up 80% of
HomeSun's business. However, because the main headline stated
"Happy Birthday Free Solar!" and the small print (which
stated the differing costs for the other services on offer) made
clear that different solar services were on offer, the ASA
considered that the "FREE" claims related specifically to
the Free Solar service, for which there was no installation charge.
Therefore the ASA found that the claim was not misleading.
The ASA also considered that the savings claims in the press advert
and second section of the website were substantiated. The ASA
considered that the advert made clear that the savings claim in
relation to Mr Arnold was an example of what could be achieved when
using Free Solar in conjunction with other changes to behaviour
designed at reducing electricity bills, rather than suggesting that
this was saving guaranteed or likely to be made by all Free Solar
customers.
The ASA considered that the section of the website under
"Grants and FiTS" made no specific claims about returns
on investments, but rather provided details of the issues that
consumers should take into account when deciding which service was
appropriate for them (such as their housing situation now and in
the future). As such, the ASA did not consider that the website
contained savings claims that actually required
substantiation.
Even in relation to the 5-8% return claim, the ASA concluded that
it was made clear this was only a projected return and was based on
government figures.
This is another example in the growth of adverts relating to
savings and investments relating to solar panels. In this case, the
advertiser's use of the "Free" claims was permitted
since, for that particular service, the advertiser was able to
demonstrate that the service was entirely free. Care should always
be taken to ensure that a "Free" claim does not suggest
that it applies to all products/ services being offered if that is
not the case.
9. Quooker UK Ltd, 4 January 2012
This adjudication concerned a magazine advert for an instant
boiling water tap and featured a picture of the product dispensing
boiling water into a glass jug, next to text stating
"100°C on tap". Further text stated "Eco
Friendly: delivers exactly the amount of water you need, when you
need it; Energy efficient: Energy use only 3p a day, a saving of up
to 55% against a kettle".
Complaint / Decision
One complainant challenged whether the "eco friendly" and
"energy efficient" claims were misleading and could be
substantiated.
The complaints were upheld. The ASA concluded that, even on the
basis of the report relied upon by Quooker and even excluding the
energy required to boil water in use, over the whole lifecycle of
the product the Quooker required more energy than a conventional
electric kettle, notwithstanding that it was more efficient than
some other alternatives tested. The ASA unsurprisingly considered
that the claim to be "energy efficient" in the context of
the claim "Energy use only 3p a day, a saving of up to 55%
against a kettle", would be understood by consumers to mean
that the Quooker was more energy efficient than a kettle. As this
was not the case on the basis of the report relied upon, the claim
was considered to be misleading.
In comparisons between the Quooker and the kettle, the comparison
was not comparing like with like, since the values for the Quooker
were based on boiling 200ml of water whereas the values for the
kettle were based on boiling one litre. There were also issues as
to whether the relevant figures were based on boiling cold water or
reheating pre-boiled water. This demonstrates the importance of
fully comparable data when making comparative claims.
This adjudication provides interesting guidance on how
"eco" (as with other "green" claims) claims
will be interpreted. Considering the full life cycle of a product
is generally important for these types of claims. Accordingly, it
should be noted that in this case the ASA considered that consumers
would understand the "eco-friendly" claim to relate to
the product's total environmental impact, taking the full life
cycle of the product into account, which in this case would include
the fact that water filters would need to be replaced approximately
every three years.
FASHION
10. Calvin Klein Inc, 18 January 2012
This adjudication concerned a poster advertising Calvin Klein
lingerie, shown on buses. The advert stated "Introducing
Glamour Calvin Klein Underwear" and featured five images of a
model wearing a bra and briefs.
Complaint / Decision
A complainant, who was an Orthodox Jew, objected to the advert
because he considered it to be offensive to the large Jewish
population based in Stamford Hill, as their religious beliefs
required them not to see women wearing only underwear, and that the
advert irresponsible because it was displayed in an untargeted
medium that could be seen by children.
The ASA did not uphold the complaints. The ASA noted that the
adverts were for underwear and that they did not contain images of
explicit nudity. Further, the ASA considered that the nature of the
product meant that viewers were less likely to regard the advert as
offensive. They also noted that the models were in natural poses.
Although the ASA considered that some people might view the advert
as mildly sexual in nature, because the underwear featured was made
from sheer material and the product name, "Naked Glamour"
was featured, and that some people with strongly held religious
views may find it distasteful, the ASA did not consider that the
advert would cause widespread offence. Similarly, although the
advert was placed on an untargeted medium which was likely to be
seen by children since the images were to advertise underwear, and
the images were not overtly sexual, the ASA did not think the
advert was irresponsible, and instead considered it acceptable to
be shown in an outdoor media likely to be seen by children.
This adjudication is another example of the ASA considering sexual
imagery in outdoor advertising, in accordance with its
October 2011 statement following the Bailey Report on the
sexualisation and commercialisation of children. The ASA's
statement provides useful guidance on the sorts of factors the ASA
will take into account when considering claims, including: the
nature of the product advertised; the context of the advert and its
location; the medium in which the advert appears, including the
size; the audience and the likely response of that audience. The
statement also includes a lot of characteristics that the ASA might
consider sexually suggestive or overtly sexual.
This adjudication, where the model poses were not overtly sexual,
is consistent with the recent ASA's adjudication concerning
Marks & Spencer lingerie adverts, also appearing on
buses where a distinction was drawn between images that were
considered overtly sexual and those where they were not.
FOOD & DRINK
11. Miller Brands (UK) Ltd, 4 January
2012
This adjudication concerned a poster advert for Peroni beer,
featuring the image of a woman, sitting in the passenger seat of a
1960s car (Fiat 500), with snow-covered mountains in the
background. No driver was visible. The woman had rolled down the
window half-way and in the condensation on the window was written
the word "Peroni".
Complaint / Decision
The ASA received one complaint, from a member of the House
of Lords, who challenged whether the advert was irresponsible
because it linked alcohol with driving.
The complaint was not upheld by the ASA. In this adjudication it
was significant that the car was stationary and the model in the
advert was in the passenger seat. No alcohol was visible and there
was no implication that the model had been drinking, or was about
to drink, alcohol, nor that the vehicle had been driven, or was
about to be driven, by someone who had been drinking. The ASA also
noted that the advert associated the Italian beer with another
iconic Italian brand. As such, the ASA considered that the advert
did not encourage consumers to drink and drive, or link alcohol
with driving.
Alcohol advertisers must be very careful in the images they use in
adverts so as not to link alcohol with unsafe activities. The ASA
reaches a sensible solution in this case since no alcohol is shown
and no one appears to have consumed alcohol.
MUSIC
12. Universal Music UK Ltd, 25 January
2012
The ASA gave two adjudications this month concerning adverts from
Universal Music.
The first concerned a poster advert for an album for a rock band,
Steel Panther. The advert featured an image of a woman leaning back
with her eyes closed. The woman was shown wearing a skimpy outfit
that covered her nipples but left her stomach and breasts
uncovered, she had her hand by her crotch and she was holding a
string with two silver balls attached. The name of the band was
placed in the middle of the cover and large text beneath this
stated "Balls Out".
Four members of the public and a charity, Imkaan, that raises
awareness and offers support to women from ethnic backgrounds who
are the victims of abuse, challenged whether the advert was
offensive because it was demeaning to woman and overtly sexual.
They also challenged whether the advert was unsuitable for public
display where it may be seen by children.
The complaints were upheld. Universal argued that the poster was
designed in such a way that it was not meant to be taken seriously
and it poked fun at the ridiculousness of the attitude to women,
outfit and music in the 80s era. However, the ASA considered the
image to be overtly sexual, particularly the woman's pose and
her facial expression which the ASA considered was suggestive of an
orgasm and sexual activity. The ASA also considered the album title
to be sexually suggestive, particularly when viewed in the context
of the poster with the silver balls dangling between the
woman's legs being suggestive of male genitalia. The ASA
considered that most people would not view the poster in the
humorous way in which it was intended, and even if they did
consider it in that way, the advert was still overtly sexual
overall. Since the poster was placed in a range of public
locations, and in accordance with the ASA's October 2011
statement on sexual imagery in outdoor advertising, the ASA
concluded that is was likely to cause serious and widespread
offence and was unsuitable to be seen by children and therefore not
appropriate for outdoor advertising.
The second relates to a television advert for a Lady Gaga CD. The
advert featured clips from various videos including images of Lady
Gaga in stockings, suspenders and body harness, crouched on the
ground and sensually rubbing her bare stomach with her hands.
One viewer challenged whether the advert was suitable to be
broadcast when children might be watching.
In contrast to the above adjudication, this complaint was not
upheld by the ASA. They considered that, although the advert
featured images of the singer's trade mark outrageous costumes
and performance style, the majority of the clips were not overtly
sexual. The ASA did comment that some of the clips (for example
where Lady Gaga is slowly rubbing her stomach with her hands) were
stronger, but that the clips of these were brief.
The ASA did add that a timing restriction would have been
appropriate to keep the advert away from programmes directed at
children, (although Universal Music noted that the advert was a
compilation of clips from Lady Gaga videos which were shown on
rotation on various music channels at all times of the day and that
these videos went no further than other music videos) however, they
noted that the advert had been specifically scheduled in and around
programmes that were targeted at 16 – 44 year olds.
Because attempts had been made to reduce the likelihood of children
seeing the advert, the ASA concluded that the scheduling had not
breached the Code.
TRAVEL & TOURISM
13. easyJet Airline Co Ltd, 4 January
2012
A press advert and a website advert for easyJet Holidays compared
various package holidays. The press advert stated "Why shell
out more? Save up to £436*pp Holiday price check" and
"Choice of 100,000 hotels – Holiday is fully
protected..." The asterisk indicated terms applicable,
"Prices are correct at time of going to press". The
advert features a table comparing holidays to various destinations
from Thomson, Thomas Cook and easyJet. The advert on the website
made similar claims in relation to different holiday
destinations.
Complaint / Decision
Thomas Cook challenged whether the comparisons in the adverts were
fair for a number of reasons, and a member of the public complained
as to whether the claims regarding choice of holiday and full
holiday protection could be substantiated.
The complaints from Thomas Cook were not upheld; however the
complaints from the member of the public were upheld.
In relation to the comparisons about which Thomas Cook had
complained, the ASA considered the small print made sufficiently
clear the basis for the comparisons and that the comparisons of
rooms were essentially comparing a similar class of accommodation.
The in-resort representative relied upon by Thomas Cook as a
differentiating factor was not considered by the ASA of sufficient
significance to render the comparison unfair. Finally,
interestingly, the ASA concluded that the statement "complete
holiday flexibility" in the advert would be interpreted by
customers as puffery and so did not require objective
substantiation, although easyJet had provided support for the
claim.
The member of the public had more luck with their complaints, since
the claim "Choice of 100,000 hotels" was not
substantiated, the true number being less than this when
duplication was accounted for. As regards the claim "Fully
protected" the ASA considered that this implied a level of
protection greater than just against easyJet's insolvency. As a
result, the ASA upheld both of these complaints.
Advertisers planning to compare their goods and services with those
of their competitors should note that their advertisements not only
need to comply with the CAP Codes, but also with the Comparative
Advertising Directive, implemented in the UK by the Business
Protection from Misleading Marketing Regulations 2008. Under these
regulations, comparative advertising is prohibited except where it
meets certain conditions, including: it is not misleading; it
compares products meeting the same needs or intended for the same
purpose; it objectively compares one or more material, relevant,
verifiable and representative features of those products; it does
not discredit or denigrate the trade marks, trade names, other
distinguishing marks, products, activities, or circumstances of a
competitor.
The ASA's interpretation of the "fully protected"
claim also provides useful guidance. Levels of insurance protection
must not be exaggerated.
14. MyCityDeal Ltd, 4 January 2012
Groupon's website offered "Return flights from London to
25 International Cities for £39 Base Fare with
AirFastTickets." The text underneath stated that taxes were
excluded from the price and rates of such vary depending on the
destination/ date of flight.
Complaint / Decision
A complainant challenged whether the claim "All fares
exclude all taxes" was misleading because they understood that
other compulsory charges were also excluded and had to be paid in
addition to the fare.
The complaint was upheld. Groupon argued that the reference to the
"base fare" made it clear that the offer was a
"towards" deal which meant the voucher contributed a
proportion of the total cost. The voucher was not equivalent to the
flight ticket and it was clear that supplementary taxes were
chargeable. Customers were also informed of the additional payments
before completing the purchase on AirFastTickets website. However,
the ASA believed that consumers would interpret the offer to mean
that the voucher entitled them to purchase flights for £39 to
any of the destinations listed and that they would only have to pay
taxes in addition. The ASA considered that the fact that the
£39 was just a discount off the total flight price was not
made clear in the advert and therefore consumers would be confused.
Since other charges were also payable, the advert was
misleading.
This is yet another adjudication involving Groupon's website.
As mentioned in our snapshot
last month, Groupon is under investigation by the OFT for
unfair trading practices, in particular the numerous breaches of
advertising codes over the last year.
OTHER
15. Cocktails Ltd, 4 January 2012
This adjudication concerned three posters for an adult store. One
poster, located on the side of a road in Hitchin, Hertfordshire,
stated "SEXy ADULT STORE" and had an image of a woman in
a bunny outfit posing with her finger pressed to her open lips. A
second poster (that replaced the first poster) included the same
text and an image of a woman dressed in a French maid's outfit.
A third poster on a dual carriageway in Tyne & Wear stated
"SEXy SUPERSTORE" and also had an image of a woman
dressed in a French maid's outfit.
Complaint / Decision
The ASA received five complaints from members of the public and one
from a local councillor. The complainants challenged whether the
adverts were unsuitable to be seen by children and whether they
were offensive and demeaning to women.
The ASA did not uphold any of the complaints. The ASA considered
that the main message of the posters, taking into account the
images, the word SEXy and the services advertised, was of a sexual
nature and therefore accepted that the images were mildly sexual.
However, the ASA did not consider the posters to be overtly sexual
and therefore concluded that they were suitable for outdoor
advertising. However, the ASA did agree that the adverts were
unsuitable to be seen by children, and they considered a placement
restriction necessary to ensure they did not appear close to
schools. Because this was already in place, the adverts were found
not to breach the Code.
This is another decision consistent with the ASA's statement on
sexual imagery in outdoor advertising, issued in October
2011.
The ASA's statement notes that what is likely to be acceptable
in outdoor advertising, will be informed by the new evidence of the
public's view of outdoor images. In light of this, it is likely
that the ASA was persuaded in this adjudication by the arguments
put forward by Cocktails Ltd that the costumes worn by the women in
the adverts had now become so mainstream that they could be seen in
the advertising and shop fronts on high street stores.
16. Paddy Power Plc, 4 January 2012
A national press advert for an online gambling website, stated
"Money-back if Suarez scores. Liverpool v Man Utd. If Suarez
scores we'll refund losing bets". The text was accompanied
by a picture of Luiz Suarez in an action style shot.
Complaint / Decision
One complainant objected to the advert because they
considered it to be socially irresponsible as it prominently
featured Suarez, who was under 25.
The complaint was upheld. The CAP Code states that adverts for
gambling services should not include people under 25 years of age
gambling, or playing a significant role. At the time of the advert,
Suarez was 24 years old. Paddy Power argued that Suarez was not
"playing a significant role", he was merely the subject
of the bet. The ASA unsurprisingly disagreed because Suarez was
pictured individually and therefore was likely to be considered by
consumers as the main focus of the advert. Therefore, the CAP Code
was breached.
In this decision the ASA has taken a tough stance in the
application of this rule. Advertisers should avoid imagery of, or
any other association with under 25s in gambling adverts. This is
also likely to apply to images of people who are not well known,
but look under 25 (even if they are in fact over 25).
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 29/02/2012.
