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Summary of interesting ASA rulings published in January
This summary provides a selection of the most interesting ASA rulings published in January 2019 and highlights the key issues considered in those rulings.
The adverts featured in last month’s decisions highlight the importance of making sure that advertisers take all steps to check that they can support claims being made, and to consider carefully how consumers may interpret claims being made. This also applies to descriptions on website product listings, for example in the case of “faux fur” for the online retailers Boohoo and Zacharia Jewellers. Here campaigners will often be on the lookout for claims that can be challenged. The rulings also show the importance of anticipating where complaints may arise and making sure that the substantiation matches the claims being made, and that the claims do not go too far. Health claims for foods are always likely to be a focus of attention. However, the Heinz baked beans advert in January’s rulings was found not to include an implied health claim that the products offered similar health benefits to exercise. The complaint in relation to the Perfect Cosmetics Company Ltd also highlights, as well as issues of substantiation, the need to ensure that discounts quoted are not misleading, but relate to a genuine selling price which can be evidenced by actual sales figures.
Boohoo – 9 January 2019
Media headlines "Boohoo caught advertising real fur as fake" following the ASA ruling are not surprising once Boohoo's "faux fur" pom poms on one of its jumpers were found to be real fur, following a test report from an independent textiles analysis expert. https://www.asa.org.uk/rulings/boohoo-com-uk-ltd-a18-465166.html
Zacharia Jewellers – 9 January 2019
A similar complaint was upheld against Zacharia Jewellers who were advertising a faux fur pom pom headband, which was found to contain real fur, again following a test report from an independent textiles analysis expert.
The key message here is that there are campaigning organisations (here Humane Society International) who will always be looking out - so advertisers need to make sure their advertising (and product description) claims are accurate.
Olanstar Technology Co Ltd – 23 January 2019
A product listing for a clothing and lifestyle shop Olanstar, which appeared on an online shopping platform, featured photos of a female model wearing a school girl costume in a variety of poses with accompanying text, such as "Pure student dress up, this sexy schoolgirl outfit lights your passion at night, inspires both infinite imagination of youth".
The advertiser did not respond to the complaint, so the ASA had no information as to whether the model was over the age of 18. Nevertheless, the ASA considered the issues. They considered that the model appeared to be under 18 from the images used, and that all of the photos in the advert were to some extent sexual in nature and drew attention to her body in a sexually suggestive manner. By depicting a person who appeared to be under the age of 18 in a sexual way was in breach of the Code and the complaint was upheld. https://www.asa.org.uk/rulings/olanstar-technology-co-ltd-a18-473153.html
FOOD AND DRINK
HJ Heinz Foods UK Ltd – 9 January 2019
A Heinz baked beans TV advert included one man in gym clothing, saying he had just finished a high intensity workout, and a few hours of lifting heavy weights, and another about to eat his baked beans. The ad for the baked beans featured the statements "High in protein High in fibre Low in fat” and “Good for you, without going on about it”. The advert was found not to be in breach of the BCAP code. The ASA concluded that the ad was not likely to suggest that eating baked beans and high intensity exercise had the same effect on the body, rather that both were beneficial to health in their own way. The ASA also considered the EU Nutrition and Health Claims Regulation, noting that the ad had featured a general health claim supported by a specific authorised health claim, that the baked beans are good for you, because they are high in protein which contributes to a growth in muscle mass.
HEALTH AND BEAUTY
RB UK Commercial Ltd – 9 January 2019
The ASA considered two TV adverts for Nurofen, one for Nurofen Express and one for Nurofen for Children, but found neither in breach of the BCAP code. In the first advert, the ASA considered the statements: “When it comes to headaches choose Nurofen Express. Clinically shown to provide faster, more effective headache relief than standard paracetamol” and “Clinically shown to provide faster, more effective headache relief than standard paracetamol*”. The ASA was satisfied that the randomised, double blinded and peer-reviewed clinical trial and a parallel group study relied upon both demonstrated that the ibuprofen liquid capsules were indeed significantly faster in providing relief for headaches than normal paracetamol.The second advert included wording "Nurofen for Children: longer lasting fever relief than paracetamol". The ASA concluded that all the evidence relied upon, including a combination of three clinical trials (two of which were double-blinded) and systematic review of studies in children, supported the claim, and so the ad was not misleading. Here RB had sufficiently robust evidence to support carefully worded claims, including studies which were peer-reviewed, randomised, and double blinded.
Procter & Gamble (Health & Beauty Care) Ltd – 9 January 2019
A TV advert for Oral B Gum and Enamel Repair toothpaste, which featured wording: “Its active repair technology actively protects gums and strengthens enamel in just two weeks" was considered by the ASA to be a medicinal claim for non-licensed product. The ASA considered that the use of "repair technology" and multiple references to "repair" suggested the toothpaste could be used to treat adverse gum and enamel conditions, and was therefore a medicinal claim. Although the focus of the claim was that the toothpaste protected gums and strengthened enamel, which was supported by evidence which showed that the toothpaste was capable of reducing gum problems and strengthening enamel, the ASA was concerned about the overall impression of the ad.
Pfizer Ltd – 9 January 2019
A TV advert for Pfizer’s Nexium Control heartburn relief product, featured a woman in various situations looking uncomfortable and holding her chest, with voice-over stating, “I remember having frequent heartburn. I was always reaching for short-term relief, over and over. But when my heartburn kept waking me up, I took control.” The ASA considered that this implied the character had experienced a worsening of symptoms over time and that, while other products had provided short-term relief, they were no longer effective in relieving her symptoms, at which point she sought alternative treatment. The concern was that viewers were unlikely to make a distinction between “frequent” and “persistent” heartburn. Following an “informal” consultation with the MHRA, the ASA concluded that, despite clear advice contained in the patient information leaflet, consumers would be less likely to seek prompt medical advice about their symptoms and that the advert therefore discouraged essential treatment for conditions for which medical supervision should be sought.
The Perfect Cosmetics Company Ltd – 23 January 2019
An advertorial in the national press for an eye cream from the Perfect Cosmetic Company formed the basis for three complaints.
First the advertorial featured quotes apparently from two national newspapers, which were challenged: “‘The miracle eye cream that has become a global best seller’ - The Sun”; and “‘Really does smooth out wrinkles around the eyes’ - The Daily Mail”.
The ASA considered that consumers would interpret this part of the advertorial as including genuine quotes from editorial content in those newspapers. However, the advertiser was able to show copies of the two articles referred to, over neither of which had they had editorial control, and that the comments quoted in the advert were representative of the content of the articles. The ASA therefore concluded that the evidence provided was adequate to demonstrate that the testimonials were genuine, and the complaint on this aspect was not upheld.
The second part of the complaint was in relation to the claim “‘The No.1 Eye Cream to banish dark circles and fine lines!’ - AS VOTED BY - Marie Claire”.
To address this complaint, the advertiser was able to show an article that appeared on the Marie Claire website headlined “The best eye cream to banish dark circles and fine lines”, featuring 10 products, including the product in question being advertised as “1/10”, and an email chain between themselves and Marie Claire to show that they had obtained permission to use the claim “‘The No.1 Eye Cream to banish dark circles and fine lines’ - AS VOTED BY - Marie Claire”.
In upholding the complaint, the ASA again considered what consumers would understand by the claim. They concluded that the claim would be understood as meaning that the product had been voted to be the best product from a range of products and that Marie Claire endorsed the products above other products. However, although Marie Claire had given the Perfect Cosmetics Company permission to use the claim in their advertising, the ASA considered that there was no indication from the article that the product’s position in the list conferred any particular ranking over and above the other products or that consumers or that Marie Claire had voted for it over other products; it was simply the first product listed in the article.
The third part of the complaint related to the pricing claim included in the ad: “YOURS TODAY AT HALF PRICE… WAS £59.99 NOW ONLY £29.99”. The ASA considered that consumers would understand this claim to mean that they would be able to make a genuine saving of 50% against a usual selling price of £59.99 at the time the advert appeared, and also that the higher price was the usual selling price on the advertiser’s website, which was where the advertorial directed readers.
Although the ASA accepted that the product had been sold through the separate online retailers at the price of £59.99, the ASA took the view that those channels were less relevant because the advertorial directed consumers to the advertiser’s own website, and that this was significant for determining the consumers’ understanding of the usual sale price. No pricing history was provided for sales through the advertiser’s own website. In any event, the channels where the product was sold at the price of £59.99 sold considerably fewer than the channels that sold the product at £29.99. The advertiser was therefore unable to satisfy the ASA that £59.99 was the usual selling price of the product, and the ASA therefore concluded that the savings claim was misleading.
Pricing can be a very complicated area. In this case, even though the advertiser had evidence to show the product for sale at the higher price, it was not able to show that this was the genuine selling price and was not able to show sufficient quantities of the products sold at the higher price. Moreover, it was significant that the advertorial directed consumers to the advertiser’s website.
The Colt Car Company Ltd t/a Mitsubishi Motors – 9 January 2019
With growth in market for electric and hybrid cars, it is inevitable that there will be more advertising complaints about claims being made, particularly those that focus on the benefit of new technology. However, in this example, the ASA found that a TV advert for Mitsubishi promoting the Outlander plug-in hybrid electric vehicle did not misleadingly emphasise that it was electric. It was reasonable to place some emphasis on the electric feature as viewers might be unaware that 4-wheel-drives are available as hybrid vehicles. However, overall there were enough other references to identify that the car was a hybrid.
Compare the Market – 9 January 2019
Compare the Market’s TV advert for a 2 for 1 meal deal was found to be in breach of the BCAP code, for failing to make it clear that the deal was available only through its app. This restriction was material information which should have been made clear in the TV ad. Any significant limitations and qualifications must always be included in any ad and must be presented clearly. Care must always also be taken to ensure that qualifications only clarify but do not contradict the relevant claims.
StubHub (UK) Ltd – 16 January 2019
In a further complaint in relation to online secondary ticketing platforms, a complaint was raised in relation to StubHub’s “FanProtect” guarantee and, in particular, in relation to text which stated “Every order is 100% guaranteed”. The issue related to the application of this guarantee when an event was re-scheduled, rather than cancelled.
The ASA considered which pages were part of the buying journey and concluded that this included the pages earlier in the process, on which the “100% guaranteed” claim appeared. Despite StubHub’s submissions, the ASA took the view that consumers would interpret the claim in relation to the guarantee to mean that they would be able to obtain a refund through StubHub if their tickets did not arrive on time or gain them entry into the venue, or if the event did not go ahead at the scheduled date and time (whether it was cancelled or rescheduled). The ASA considered that full (or further) details of the FanProtect guarantee, to make this clear, could be included in the footer of StubHub’s website, which was not limited by space.
The ASA has been taking a very strict line in relation to secondary ticketing platforms, and this is another example of the ASA seeking to require secondary ticketing platforms to provide additional detail earlier on in the sale process.
Madison CF UK Ltd t/a 118118 Money –23 January 2019
A TV advert for consumer credit provider 118 118 Money sought to focus on the fact that the credit card in question did not charge for cash withdrawals. The ad featured two men in 118 118 vests in a boxing match with an ATM on the other side, with the boxers saying “Smash those nasty credit card cash withdrawal charges, 118!" and "Our new credit card won't charge you to take cash out, 118." In the final scene, a woman held up a placard that read "NO CASH WITHDRAWAL CHARGES".
The complaint was on the basis that the ad did not feature the credit card's representative Annual Percentage Rate (RAPR).
The ASA, taking into account the Financial Conduct Authority's (FCA) Consumer Credit Sourcebook (CONC) (reflected in the advertising code), considered that the advert’s focus on the credit card’s zero ATM cash withdrawal fees feature, was both an incentive to consumers to enter into a credit agreement, and a favourable comparison against other providers. On that basis, it concluded that the advert breached the Code by not displaying an RAPR as prominently as that incentive/favourable comparison.