This article provides a selection of the most interesting ASA adjudications from March and a summary of the key issues considered in the adjudications.
This month, the ASA gave particular consideration to the evidential requirements for environmental-benefit claims, and also, gave useful guidance on the use of price comparisons.
LEISURE
1. Tombola (Alderney) Ltd, 17 March 2010 (harmful racial stereotyping in television ad)
2. William Hill Organisation Ltd, 17 March 2010 (price comparison claim 'too general')
NON-COMMERCIAL
3. Department for Transport, 3 March 2010 (car crash ad not deemed 'distressing')
4. Department of Energy and Climate Change, 17 March 2010 (959 complaints against climate change ad campaign)
OTHER
5. Shock & Soul, 10 March 2010 ('morbid' ad implying death of elderly lady deemed decent)
6. LighterLife UK Limited, 3 March 2010 (definition of 'qualified medical supervision' in respect of obesity diet)
7. Travelodge Hotels Ltd, 24 March 2010 (price comparison guidelines)
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Full Article
This article provides a selection of the most interesting ASA adjudications from March and a summary of the key issues considered in the adjudications.
This month, the ASA gave particular consideration to the evidential requirements for environmental-benefit claims, and also, gave useful guidance on the use of price comparisons.
LEISURE
1. Tombola (Alderney) Ltd, 17 March 2010 (harmful racial stereotyping in television ad)
2. William Hill Organisation Ltd, 17 March 2010 (price comparison claim 'too general')
NON-COMMERCIAL
3. Department for Transport, 3 March 2010 (car crash ad not deemed 'distressing')
4. Department of Energy and Climate Change, 17 March 2010 (959 complaints against climate change ad campaign)
OTHER
5. Shock & Soul, 10 March 2010 ('morbid' ad implying death of elderly lady deemed decent)
6. LighterLife UK Limited, 3 March 2010 (definition of 'qualified medical supervision' in respect of obesity diet)
7. Travelodge Hotels Ltd, 24 March 2010 (price comparison guidelines)
LEISURE
1. Tombola (Alderney) Ltd, 17 March 2010
A TV ad, for a bingo website, showed a white man wearing a dinner suit and a black man in a floral shirt as they sat by a fire on a beach. The black man was playing a ukulele and repeated, in song, everything the white man said: "If you sign up this month to tombola.co.uk; we will match your first deposit up to twenty five pounds; thank you Tito; ola tombola".
Complaint/ decision
Two complainants challenged whether the ad was likely to cause serious or widespread offence, because they believed it presented a negative racial stereotype.
Although Tombola did not respond to the complaint directly, Clearcast, who had approved the ad, argued that the ad was "simple and light-hearted", and that the characters were intended to reflect the friendly and welcoming nature of the Tombola website. They pointed out that the host did not talk down to Tito or treat him badly in any way; in fact, he thanked him for repeating the sales message. Clearcast said the ad was not meant to be offensive and they believed it did not present a negative racial stereotype.
The ASA considered that the relationship between the two characters in the ad was clearly one in which the white man had "power" over the black man, and that the black man was portrayed as less intelligent in that he repeated everything the white man said. As such, the ASA found that the ad could be interpreted as humiliating, stigmatising or undermining the standing of the black character and was therefore likely to cause serious offence.
This decision highlights the strict approach taken by the ASA where racial undertones are present in an ad. Advertisers should always be very careful to avoid any racial stigmas/ stereotyping when creating characters in their advertising campaigns. The ad can be said to have parallels with a March 2007 decision regarding 'Trident' chewing gum, in which the ASA upheld complaints concerning the depiction of a black Caribbean man in an exaggerated and excitable manner as "humiliating" and "negative". For the ASA's decision on the Trident ad, please click here .
2. William Hill Organisation Ltd, 17 March 2010
An ad in the Racing Post, was headed "William HILL Best Prices FACT" and listed the odds for various sporting events. Very small print stated "Best Prices Fact based on price comparison taken from RP Saturday's Pricewise table 08/08/08 - 06/06/09 *Initial bet of £20 or more. Free bet is a win single added to your account on settlement of first bet. Free Bet must be on a different event to the initial stake. Free bet stake not included in any winnings, valid for 7 days. Correct promo code must be used".
Complaint/ decision
The complainant challenged whether the claim "Best Prices FACT" was misleading, on the basis that the comparison excluded some of the competitors who did not advertise in the Racing Post, and also, as it was presented as a general claim, but referred only to a small subset of markets offered by the advertiser. It was also alleged that the price comparison data was based on the previous season's prices, not those of the current season.
The ASA upheld all three of the complaints. Although William Hill had attempted to qualify the headline with small print at the bottom of the ads, this did not deter from the fact that they had not calculated, nor included, price information in respect of at least some major bookmakers, and that also, the price comparisons applied only to one specific betting market. The ASA found that as the qualifying text did not provide any information relating to the way the price comparison table was compiled, consumers might infer that the general claim of "Best Prices FACT" would be generally applicable to all football betting markets.
Finally, the ASA also found that the price comparison claim was out of date, as the information compiled had related to the 2008/09 football season, whereas the claim was made next to a list of odds under the heading of the 2009/10 season. This was in spite of the fact that small print at the foot of the ad had warned consumers that this was the case.
Advertisers should always be careful to ensure that up-to-date and verifiable information is used when using price comparison data in their ads, and that the price comparison claims are well-founded, and relate to specific products or markets. In addition, advertisers should always ensure that information is provided within the ad as to how the price comparison data was compiled, and that any qualifications are prominently displayed and do not contradict the text in the main ad.
NON-COMMERCIAL
3. Department for Transport, 3 March 2010
A TV ad for the Department for Transport Think! campaign, featured a cartoon character of a pale young girl clutching her midriff, wearing a neck brace and with a plaster on her head. She looked at herself stepping into the road as the lights of a fast car approached. Three cartoon children, all wearing reflective bands and stickers, walked past the sad looking injured girl. The voice-over stated "The girl who didn't dress bright in the dark. She always liked to look her best, So didn't wear a nice bright vest, Or any clothing that was bright, When she was out at nearly night, But traffic couldn't see her see, And now she isn't so trendy, A car drove right into her guts, And covered her with bruisy cuts".
Complaint/ decision
Five viewers, most of whom saw it on children's channels, complained that the ad was unsuitable for broadcast when young children could see it, because their own children, ranging in age from four to seven, had been distressed by it.
The Department for Transport ("DfT") argued that, although the ad did not have an 'ex kids' restriction, this was because the message of road safety was an important one, and highlighted the various measures they had taken to try to mitigate the possible distressing impact of the ad. For example, the fact that the child in the ad was already displayed as having been cared for, that the moment of impact was not shown, and that the ad was shown in an animated world, were all aimed at softening the impact of "an unavoidably violent subject matter".
The ASA rejected the complaints, recognising the efforts made by the DfT and Clearcast to tone down the material in order to mitigate the risk of distressing younger children. The ASA also pointed to the fact that the road safety message was an "important" one, and therefore directed that a timing restriction would not be warranted.
It is interesting to note the contrast between this decision, and the decision of the ASA in respect of a different Government advertising campaign regarding climate change (see 4 below). Where ads contain a message which the ASA deems 'important' for the general public to be informed of, the ASA are often prepared to allow the ads to appear, even where there has been a large volume of complaints received, and even where the subject matter of the ads could be considered distressing.
4. Department of Energy and Climate Change ("DECC"), 17 March 2010
The ASA received 939 complaints about the Department of Energy and Climate Change Act On CO2 "Bedtime Story" TV ad, four associated nursery rhyme themed press ads and/or two billboard posters over the course of October 2009 to February 2010.
The ads depicted various scenarios which were cited as being direct effects of global warming, ranging from clouds of CO2 forming a black monster-like shape in the sky to a dog drowning under-water, due to flash floods and unpredictable weather patterns. Various claims were made in the ads, such as that "40% of the CO2...[is]...coming from ordinary every day things like keeping houses warm and driving cars", and "extreme weather conditions such as flooding, heat waves and storms will become more frequent and intense".
Complaint/ decision
The 939 complaints received comprised ten central themes,
although most of them can be distilled into three main
issues:
- the ads showed images and scenarios which could be distressing for children who saw it;
- the ads contained various claims about climate change which could not be substantiated by scientific evidence, and furthermore, there is a significant division of informed scientific opinion on the phenomena of climate change. Many of the claims and associated imagery have been exaggerated and could mislead viewers; and
- the ad was political in nature and, as such, should not be broadcast.
The ASA rejected nine out of ten of the complaints. In relation to the first issue above, the ASA accepted that some of the images in the ads could indeed be considered distressing, not only to children, but also to adults. However, the ASA noted that the ad had been given an 'ex kids' restriction, which ensured that the ad would not be broadcast in and around programmes specifically made for children. Furthermore, even where children did see the ads, the fact that the effects of global warming are "routinely taught in school", paired with the story-book and "stylised" fashion in which the ads were depicted, would ameliorate the distressing nature of the ads. Therefore, the ASA rejected that there had been any breach of the Code in this regard.
With respect to the second issue, the ASA carried out a thorough examination of the wealth of evidence provided to it by the DECC, and found that in respect of all but one of the complaints, the claims made in the ads about the possible effects of climate change were not misleading, and were therefore justifiable. The ASA made specific reference to the fact that the DECC had relied on studies carried out by bodies such as the IPCC, cited by the ASA as being "the world's most authoritative source of information", and other such reputable, world-renowned bodies.
The only claim made by the DECC in the various ads which was found to be in breach of the Code, related to the claim "extreme weather conditions such as flooding, heat waves and storms will become more frequent and intense". The ASA found that the evidence provided in relation to this claim was insufficient for the purposes of substantiating this bold claim, and suggested that the claim should have been phrased "more tentatively". As such, the ASA found that two of the press ads should be withdrawn from the advertising campaign.
Finally, in relation to the third issue, the ASA found that it would be for Ofcom to determine whether the ads were in breach of the prohibition on political advertising, as this issue remains within Ofcom's remit and has not been outsourced to the ASA.
Bearing in mind the wealth of negative publicity surrounding the ads, and the volume of complaints received by the ASA, it is perhaps surprising that of the seven ads used in the campaign, only two were found to be in breach of the Code, and that nine out of the ten complaints were in fact rejected. This lengthy adjudication serves to highlight the value of advertisers seeking robust and reliable sources of evidence before making claims, and reflects the readiness of the ASA to consider ads acceptable where such evidence is provided, even where extremely large volumes of complaints are received.
The impact of this particular advertising campaign on the wider public, as reflected by the volume of complaints received by the ASA, also highlights the contentious and topical nature of environmental issues in today's society. This fact is reflected by the recent publication of the new CAP Code (to come into force in September 2010), which amongst other things, sets out to clarify when environmental claims can be made and the evidential credentials required.
OTHER
5. Shock & Soul, 10 March 2010
A regional press ad for a vintage clothing store showed an elderly lady about to cross a road, carrying bags of shopping. Text superimposed on the lady stated "Silk Dress Coming Soon". Further text stated "Shock And Soul Vintage Clothing".
Complaint/ decision
The complainant thought the ad was offensive, because it implied the lady would not be alive for much longer, and her clothes would soon be available to buy at the advertised shop.
Shock and Soul argued that the ad was intended to be humorous, and that most people would recognise that vintage clothing, by its very nature, would have been worn by someone who was likely to have been older, and who might even have passed away. In any case, it was argued that the ad was "cryptic and ambiguous", and that it was not offensive in any visually obvious or literal sense, therefore its meaning was open to interpretation.
The ASA rejected the complaint, ruling that the joke was not 'overt', and that its meaning might be overlooked or not understood by some readers. However, even though the ASA accepted that those who engaged with the ad would understand that the implication was that the old lady would die soon, and that the joke was "morbid", it found that it should not be considered a breach of the decency provisions of the Code as it did not make fun of infirmity, lack of mobility or illness. Furthermore, the joke was impersonal because it related to the fact of death, not to traits of character.
This decision offers useful guidance for advertisers who are intending to use 'black humour' in their ads.
6. LighterLife UK Limited, 3 March 2010
A TV ad, for a very low calorie diet, showed people playing trombones and dancing. A woman was dancing with a cardboard cut out of herself before she had lost weight. She stated "This was me. I couldn't dance. I couldn't even run upstairs. 'Enough', I said 'I'm starting the LighterLife weight loss programme'. Seven months later, I looked like this". She then danced with a male partner and text on screen stated "A very low calorie diet for people with a BMI of 30+. Subject to GP's health check and monthly reassessment". A female voice-over stated "With LighterLife you get the help of qualified weight loss counsellors"; the woman pushed the cardboard cut out away and said "I've kept the weight off for three years. I've changed my life for good with LighterLife". Text on screen provided contact details as the voice-over stated "For obese people. Subject to GP's initial and monthly check ups".
Complaint/ decision
The complainant, who had been on the weight loss programme, challenged whether the diet was carried out under the supervision of a properly qualified medical professional, and whether the ad was harmful and misleading because it suggested the programme was a long-term solution to obesity.
LighterLife submitted a wealth of documentation to the ASA in support of its claims, which purported to evidence that the diet was carried out under the supervision of qualified medical professionals. For example, before embarking on the programme each client had to submit a health questionnaire, completed by their GP or practice nurse, to Lighterlife's in-house medical team for screening. Clients then had to submit medical check-up forms every four weeks and LighterLife reminded their clients when their checks were due.
In relation to the second complaint, Lighterlife argued that clients could opt to attend group counselling for free, for life, after they had reached their target weight. LighterLife said it was that element of the programme that they referred to as long term, not the very low calorie diet (VLCD).
The ASA upheld both complaints. In relation to the first complaint, the ASA found that the actual supervision was carried out not by doctors, but by physiologists and weight loss counsellors; the only involvement by the doctors, or the equally qualified medical advisory panel, was to screen potential clients' forms for exclusion criteria. Furthermore, although clients were required to have four-weekly check-ups, these check-ups may have been carried out by pharmacists. After careful consideration, the ASA determined that the pharmacists would not be in a position to offer "sufficiently informed medical supervision" on the basis that they did not have access to patients' medical records.
The ASA also upheld the second complaint, on the basis that viewers were likely to understand the woman's claims in the ad to mean that the programme was a long-term solution to obesity itself.
This adjudication offers useful guidance to advertisers of weight loss products, in particular as to the definition of 'qualified medical supervision'. In this case, the ASA took the view that "an initial assessment and a four-weekly medical with a GP" would have constituted suitable medical supervision.
7. Travelodge Hotels Ltd, 24 March 2010
A national press ad for Travelodge hotels was headlined "Travelodge. Big cities. Small prices". It included a table that compared Travelodge prices with those of Premier Inn; text stated "Travelodge Average Room Rate Premier Inn Average Room Rate - Central Edinburgh £51 - £69 SAVE £18". Small print stated "Travelodge Price Check is conducted daily by TravelCLICK ... using data from over 1000 hotels nationwide. The quoted Travelodge Price Check was conducted on 31 August 2009. Quoted prices are an average of each brand's room rates for stays between 7 and 30 days after the date of the price check, using the lowest rates available to book online".
Complaint/ decision
Premier Inn Hotels Ltd challenged whether the ad was misleading because they believed the price comparison was not fair and was inaccurate, partly because it was structured so that Premier Inn promotional rates were not included, and also because it did not make sufficiently clear that the Travelodge prices applied only to online bookings. They also argued that the ad did not set out how the comparison could be verified.
The ASA upheld all of the complaints. In respect of the first complaint, the ASA noted that, although the price comparisons were carried out on the basis of identical criteria, both companies offered their lowest rates based on entirely different criteria. For example, Premier Inns explained that users of their website would be able to qualify for their cheapest offers by booking 21 days or more in advance; as such, their lower rates were less likely to be available on their website during the period of the comparison.
The ASA found that, in respect of the second complaint, Travelodge had not made sufficiently clear that their lowest prices only applied to online bookings.
The ASA, in upholding the third complaint, stated that the ad did not set out how the price comparison could be verified, as required following the 2008 Lidl decision (which established that certain information must be included in ads which contain price comparisons – click here for the ASA's decision). Although Travelodge had explained that, if the ads were to be shown again, text would be included which would explain that a list of the hotels used in calculating the price averages could be obtained by writing to them, the ASA stated that this would be insufficient, and that clear and understandable details should be displayed in the actual ad.
This decision highlights the importance of advertisers ensuring that where price comparison claims are made, research has been carried out in order to ensure that the claims are made on a fair basis. Advertisers should always be wary of applying standard criteria against which price comparisons are made, particularly where competitors have different systems in place to provide better deals for their customers.
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 30/04/2010.