Advertising Standards – ASA

May 2017

Extra % Off Must be EXTRA

Euro Car Parts ran a two week promotion offering an “EXTRA 50% Off” motor oils. While the price of oils fluctuate, Euro Car Parts ran the promotion after increasing the base price of oil by 37% (76% over the lowest 2016 price). The ASA determined any real savings fell short of the promised 50%, let alone being an extra 50%. Thus the ads were likely to mislead consumers about the actual savings and must be pulled.
https://www.asa.org.uk/rulings/euro-car-parts-ltd-a16-366891.html
jbho: don’t jack up you prices in anticipation of a big sale.

However, there may have been some logic to the big price increase, as the prices of commodities like oil can fluctuate wildly. If Euro Car could have proven their acquisition costs had risen a comparable 37% (76%), I wonder if there would have been a different result.

And if you’re interested, here’s the math:

Base Pricing:
• £36.49 – lowest 2016 price
• £46.99 – price until two weeks before the Promotion
• £64.32 – Price during the Promotion

Actual Savings
• £32.16 – actual savings during the Promotion (50% of £64.32)

Adjusted Savings Rate:
• 12% (£4.33) off the lowest 2016 price (£32.16/£36.49)
• 32% (£14.83) off the pre-Promotion price (£32.16/£46.99)
Not quite the promised 50% off.

 

Images and Voice-Over Diminish Prominence Of Triggered Terms

Santander ran TV ads for its ‘All In One’ credit card. The ads flashed through images of multiple familial and purchase settings, with a voice-over stating “cashback on all your purchases … no fee when spending abroad … and 0% on balance transfers for 40 months.” Text onscreen stated:

0.5% cashback. Retailer and ATM fees may apply abroad. 1% Balance Transfer fee. Representative Example 0% p.a. on purchases for 6 months then 15.9% p.a.(variable). Equivalent to 21.7% APR representative (variable) based on £1200 credit limit. Monthly fee £3“.

The ASA recognized that Santander used clear text and bold fonts on the required APR information, and presented the disclosure for a reasonable period of time (half the ad’s duration). However, visuals of purchasing in combination with the voice-over touting card features rendered the text-only disclosures less prominent than the triggering claims. Thus the disclosures did not meet the Financial Conduct Authority’s (FCA’s) Consumer Credit Sourcebook requirements for prominent APR disclosures, and the ads must be pulled.
https://www.asa.org.uk/rulings/santander-uk-plc-a16-360790.html
jbho: always a fine line when mixing medias. Maybe they should have added a micro-machines type verbal disclosure to the voice over? 

 

April 2017

Performance Claims Properly Qualified

Mountain Warehouse advertised a down padded jacket as “Laboratory tested to -30°C.” Immediately next to the claim was a clarification stating “Heat & physical activity, exposure time & perspiration will affect performance and comfort.” The ASA determined that:
1) Mountain Warehouse was able to produce evidence of lab testing that supported the base -30° claim
2) While the ad did not detail which types of activity would be necessary to provide protection at -30°, consumers would expect different activities to affect performance.
Thus, the claims were adequately substantiated and the ads were unlikely to mislead.
https://www.asa.org.uk/rulings/mountain-warehouse-ltd-a17-369924.html
jbho: another reminder of the importance of independent testing to verify performance claims, as well as clearly and conspicuously disclose any qualifying information.

 

Up To Claims Must Address Brands As Well As Volume

Bathroom supplier Victoria Plum advertised “up to 60% off” plumbing products in an ad featuring various independent brands. However, the ASA found that while 25 of 250 products qualified for the 60% discount, the 60% discount was limited to Victoria Plum brands. While the 10% threshold was within CAP guidance, since the ads did not make the brand restrictions clear, the ads were likely to mislead and must be pulled.
https://www.asa.org.uk/rulings/victoria-plum-ltd-a17-369618.html
jbho: remember to clearly and conspicuously disclose any limitations on discount offers.

Good to confirm that 10% of inventory must be available at the “up to” rate.

 

Receipts Prove Accuracy of List Price

Event planning company Time Out Digital promoted an online photography course as £376 below the normal price. In response to the ASA inquiry, Time Out was able to provide invoices and payment processing receipts over several months confirming the course had been purchased at the higher price. The ASA therefore determined the savings claim was substantiated and the ad was not misleading.
https://www.asa.org.uk/rulings/time-out-digital-ltd-a17-376294.html
jbho: demonstrates the importance of good documentation to back up your advertising claims.

 

Water Resistant is Not Waterproof

Outdoor clothing retailer Mountain Warehouse advertised a walking boot as ‘waterproof.’ However, the company had only tested the boot up to the point where the boot flexed, as pointed out in a diagram on its website. While the ASA recognized that the boots had passed established water-resistance tests, the company had no consistent testing methodology for ‘waterproof’ claims. Additionally, since tests were limited to the treated parts of the boot, the ‘waterproof’ claims could not be substantiated, and the ads must be pulled.
https://www.asa.org.uk/rulings/mountain-warehouse-ltd-a16-359200.html
jbho: another reason to avoid absolutes in marketing copy.

 

March 2017

Flooring Company Allegedly Exaggerates Pricing Floor

Manorgate ran ads stating laminate flooring was available “From £5.75m²” Manorgate failed to respond to the ASA, so the ads must be pulled and the ASA has referred the matter to the CAP Compliance team.
https://www.asa.org.uk/rulings/manorgate-ltd-a16-366260.html
jbho: remember, in addition to the ‘name and shame’ of a published ASA ruling, the CAP Compliance team can add a company to the List of Non-Compliant Advertisers:
asa-list
or launch a keyword campaign identifying the company as an unethical advertiser.
asa-unethical
https://www.asa.org.uk/codes-and-rulings/sanctions.html

A list of non-compliant advertisers can be found at https://www.asa.org.uk/codes-and-rulings/non-compliant-online-advertisers.html

 

The Dangers Of Third-Party Consent

Land’s End allegedly sent unsolicited emails. Land’s End claimed it relied on a data supplier, who obtained opt-in consent for third-party marketing. Language next to an opt-in tick box stated:

You understand and agree that you are establishing a business relationship with our network of affiliate partners, and you may be contacted by one of our partners by telephone or mobile using automated dialing or electronic mail. You also agree to our Privacy Policy. There is no obligation for submitting your information“.

The ASA determined that although consumers may expect emails from third parties, there was no clear connection between the business of the collecting site and Land’s End. Since complainant would not have (and did not) expect the disclosure to include Land’s End, complainant had not given his explicit consent to receive the marketing emails. Land’s End should have known this and must cease further unsolicited emails.
https://www.asa.org.uk/rulings/lands–end-europe-ltd-a16-358871.html
jbho: a reminder that third-party marketing requires a qualified opt-in consent, and you must specify who will be doing the marketing – at least as a category level.

Land’s End may be lucky that the ASA stepped in instead of the ICO, since the ICO hasn’t been so forgiving when it comes to parties relying on, but failing to validate, third-party consent.
https://jbho.blog/european-union/united-kingdom/ico/

 

Grander Water Claims Are All Wet

Water treatment company Bevital claimed its water ‘Revitalisation’ products made water taste fresher and cleaner, feel softer, and more beneficial to skin. The ASA determined that although subjective, claims related to taste and feel were measurable, and Bevital failed to provide scientific evidence that supported comparative claims over normal tap water (testimonials alone were not sufficient). Similarly, Brevital failed to provide evidence of positive effects on skin, thus the ads must be discontinued.
https://www.asa.org.uk/rulings/bevital–uk–ltd-a16-343790.html
jbho: any comparative claims must be substantiated, with appropriate disclosures in the ad.

 

If The Name Of Your Product Is A Health Claim, You Better Be Able To Back It Up

Juice Garden advertised drinks with names like ‘Flu Shot,’ ‘Immune,’ and ‘Detox Juice.’ Although Juice Garden stated they made no claims in their advertising that their products cured or prevented disease, the ASA found the names of the products themselves implied health claims. Since the claims were unsubstantiated, the ads must be pulled.
https://www.asa.org.uk/rulings/juice-garden-ltd-a16-354907.html
jbho: I’ve always advised against absolutes in marketing copy, but what to do when your product name represents an absolute claim? Can that be puffery?

 

Manufactured Ingredients Not ‘Natural’

Children’s juice maker Appy Food & Drinks claimed “we ONLY make 100% natural, tasty and healthy products.” Appy responded to the complaint about the inclusion of calcium lactate and glucose-fructose syrup in its products, by saying they were created through natural processes. The ASA found Appy provided only a general description and used enzymatic processes that could not be definitively classified as natural under Food Standards Agency (FSA) criteria. Therefore the final juices could not be advertised as 100% natural if they contained the manufactured ingredients in question.

Compound foods (i.e. foods made from more than one ingredient) should not themselves be described directly or by implication as ‘natural,’ but it is acceptable to describe such foods as ‘made from natural ingredients’ if all the ingredients meet the criteria.”
https://www.asa.org.uk/rulings/appy-food—drinks-ltd-a16-348064.html
jbho: another reason to avoid absolutes in your marketing copy.

 

February 2017

Number Of Website Visits Don’t Make You The Biggest Retailer

Online Segway retailer Deltasourcing Traders ran ads claiming they were “The UK’s largest online Segway retailer.” The ASA found the ‘largest’ claim was based on an overall number of website visits – a measure of popularity, not sales, turnover, or product range as implied by the ad. The ads must be pulled and any future claims must clarify the basis for comparison and be supported by adequate evidence.
https://www.asa.org.uk/rulings/deltasourcing-traders-ltd-a16-359187.html
jbho: any comparative claims must be substantiated, with appropriate disclosures in the ad.

 

January 2017

Quoted Prices Must Include Extras

Printing company VistaPrint ran ads stating “1,000 flyers for only £13.99.” However, after clicking through, the website stated “1,000 start at £13.99 (ex. VAT).” The ASA found that nothing in the ad indicated the £13.99 was a ‘from’ price, and the quoted price must include the non-optional taxes, fees, and charges that would apply to the typical buyer. Therefore the ads must be pulled.
https://www.asa.org.uk/rulings/vistaprint-bv-a16-350975.html
jbho: a reminder to clearly and conspicuously disclose the restrictions or limitations on any offer. So if you are only listing a starting price, say it in your ad copy. And if your quote doesn’t include taxes, shipping & handling, etc., say it in your ad copy.

 

If You Say No To Added Sugar, You Can’t Add Sugar

Taywell Ice Creams allegedly ran ads the with a marketing tag-line “say no to added sugar.” However, the ASA found that Taywell did add sweeteners to its products, and sweeteners like agave nectar constituted added sugar. Similarly, the ASA found claims the products were ‘refined sugar free’ implied they were free of any sugars and was not a permitted health claim. Thus, the ads were misleading and must be pulled.
https://www.asa.org.uk/rulings/taywell-ice-creams-ltd-a16-338378.html
jbho: a reminder to avoid absolutes in advertising copy.

 

Proper Disclosures Win The Day

Expedia.com ran an email ad campaign targeting members, offering them a special discount, that lead to a landing page that stated “Members get an extra 10% or more off select hotels. Look for Member Pricing below.” Member prices were highlighted in yellow, some of which were also labelled ‘member price.’ The ASA found that although the link could be available to non-members (and a few non-members may have accidentally received the email), the disclosures in the email and on the landing page clearly indicated the offers were for members. Thus, the ads were not misleading and no action was required.
https://www.asa.org.uk/rulings/expediacom-ltd-a16-356777.html
jbho: a reminder to clearly and conspicuously disclose the restrictions or limitations on any offer.

 

December 2016

How NOT To Run A Subscription Campaign

Atlas Editions allegedly ran a postal marketing campaign selling miniature model cars/trucks at discounted rates. Ads stated the toys were offered with “absolutely no commitment,” “nothing else to buy,” and “no need to join a club.” However, once submitting an initial order, consumers were sent other items on a rolling monthly basis, and billed accordingly, unless they explicitly opted out.

As presented, the ASA felt the ads would lead consumers to believe they were making a one-time purchase, and not subscribing to an ongoing purchase plan, therefore the ads must be pulled.
https://www.asa.org.uk/Rulings/Adjudications/2016/12/Atlas-Editions-UK-Ltd/SHP_ADJ_350249.aspx#.WFFDnEIm5hE
jbho: I think a few lessons here:
• avoid absolutes in advertising copy
• any terms/limitations/obligations must be clearly and conspicuously disclosed
• disclosures cannot contradict the advertising claims
• before enrolling consumers in a recurring billing program, you must obtain the consumer’s express informed consent.

 

November 2016

Dos and Don’ts Of Performance Claims

jbho: any performance claims must be substantiated by objective studies/research. And any disclaimers must be clearly and conspicuously disclosed.

Also demonstrates the importance of having an objective, independent opinion to back up any advertising claims. Additionally, the research must be timely and relevant to the claims. And well documented.

Investigations Escalated After Advertisers Fail To Respond

jbho: a reminder it’s probably best to use an independent 3rd-Party to oversee a sweepstakes, as well as make sure to maintain comprehensive documentation of the competition.

And a reminder to avoid absolutes in marketing copy.

In case you didn’t know, in addition to the ‘name and shame’ of a published ASA ruling, the CAP Compliance team can add a company to the List of Non-Compliant Advertisers, or launch a keyword campaign identifying the company as an unethical advertiser.
https://www.cap.org.uk/About-CAP/Compliance/Sanctions/CAP-Sanction-examples.aspx#.V8bRtE1TFhE

October 2016

Studies Cited Must Be Relevant To Advertised Uses

Natural health company BetterYou allegedly advertised both the curative properties of topical magnesium products and the purity of the source of its magnesium. The studies cited by BetterYou related to dietary magnesium intake in infants and young children’s bone development, or use of topical magnesium in animals. ASA felt these did not translate to effects on adult human subjects. Additionally, only one sample was tested for purity – a test that was run in 2014.

ASA required BetterYou to pull the ads, and required that future claims be properly substantiated.
https://www.asa.org.uk/Rulings/Adjudications/2016/10/BetterYou-Ltd/SHP_ADJ_345792.aspx#.WAdkZ00VBhE
jbho: demonstrates the importance of having an objective, independent opinion to back up any advertising claims. And the research must be timely and relevant to the claims.

Investigations Escalated After Advertisers Fail To Respond

Neither responded to the ASA’s inquiries, and both have been ordered to cease the promotions. The matters have been referred to the CAP Compliance team.
jbho: a reminder that industry standards to have teeth. In addition to the ‘name and shame’ of a published ASA ruling, the CAP Compliance team can add a company to the List of Non-Compliant Advertisers, or launch a keyword campaign identifying the company as an unethical advertiser.
https://www.cap.org.uk/About-CAP/Compliance/Sanctions/CAP-Sanction-examples.aspx#.V8bRtE1TFhE

September 2016

Well Vetted Study Combined With Prominent, Accurate Disclosures = Valid Ad

Perfect Cosmetics allegedly exaggerated the effectiveness of wrinkle cream. However, the company was able to produce evidence showing the results of test were reviewed by independent consultants, and the temporary nature of the product, as well as qualifying language such as ‘appears,’ ‘wrinkles seem to have disappeared’ and ‘change appears to happen’ were communicated throughout the ad. Based on the evidence provided, ASA determined the claims, including “before and after” photos, did not misleadingly exaggerate the effects of the advertised wrinkle cream.
https://www.asa.org.uk/Rulings/Adjudications/2016/9/The-Perfect-Cosmetics-Company-Ltd/SHP_ADJ_333552.aspx#.V9AOv01TFhE
jbho: if you are going to cite product tests, make sure they are verified by an independent 3rd party.

Also serves as a reminder why it’s best to avoid absolutes in marketing copy. Not to mention the importance of clear and conspicuous disclosures.

August 2016

Two Companies Cited For Inflated ‘Regular’ Prices

jbho: make sure listed “regular” prices are truly representative. If you’re going to use an MSRP, clearly state the price as such.

Investigations Escalated After Three Advertisers Fail to Respond

None of the above responded to the ASA’s inquiries, and all have been ordered to cease the promotions. The matters have been referred to the CAP Compliance team.
jbho: in addition to the ‘name and shame’ of a published ASA ruling, the CAP Compliance team can add a company to the List of Non-Compliant Advertisers, or launch a keyword campaign identifying the company as an unethical advertiser.
https://www.cap.org.uk/About-CAP/Compliance/Sanctions/CAP-Sanction-examples.aspx#.V8bRtE1TFhE

July 2016

Price Claims Require “Apples to Apples” Comparison

Aldi ran TV and print ads that touted general savings by shopping at Aldi. Fine print disclosures qualified the savings as applying to Aldi-branded products compared to leading brands, and that “Other supermarkets may sell ‘own brand’ products at different prices.” The ASA ruled the typical consumer would expect the savings resulted from simply shopping at Aldi, and Aldi did not sufficiently communicate that the savings resulted from a comparison of Aldi-brands versus leading brands. Thus the ads were misleading and must be pulled.
https://www.asa.org.uk/Rulings/Adjudications/2016/6/Aldi-Stores-Ltd/SHP_ADJ_336155.aspx#.V3fuyT_6thE
jbho: any comparative claims must be substantiated, and more importantly, the disclaimers cannot contradict the claim.

Recommended By 100% Means A Product Of Choice For All

Wisdom Toothbrushes ran ads stating its toothbrushes were “Recommended by 100% of Dental Professionals.” The claim was based on a single poll of a small sample of dental professionals (46 of the 100,000+ dental professionals in the UK). The ASA ruled Wisdom failed to properly disclose the basis for the claim in its ads, and moreover, the single poll was insufficient to support the 100% claim. Thus the ads were misleading and must be pulled.

https://www.asa.org.uk/Rulings/Adjudications/2016/6/Wisdom-Toothbrushes-Ltd/SHP_ADJ_334316.aspx#.V3fukj_6thE jbho: any comparative claims must be substantiated, with appropriate disclosures in the ad. Also a reminder to avoid absolutes in ads.

Purple Puppet Promotes Pre-adolescent Partakers

Mobile provider “Three” (Hutchison 3G UK) ran ads parodies in a Blair Witch style to promote the video capabilities of the latest LG phone. The ads featured an adult going camping with his friend Jackson – a purple puppet who serves as the mascot for Three.
Three argued the videos contained no onscreen violence, and the videos started with text disclosures stating: “WARNING. The following film contains scenes of a disturbing nature. Viewer discretion is advised. Restricted. Suitable for viewers aged 15 and over” – followed by the 15 rating film classification logo – and then stated “WARNING: This film is really scary. Please put down any hot drinks for your own safety.”
The ASA felt that despite Three’s efforts to target 15 and older, the ads were still presented on sites available to children – children who were likely unable to comprehend the warning, and would watch the ‘intense’ content anyway. The ASA did not require the ads to be pulled, but warned Three that such ads must be appropriately targeted going forward.
https://www.asa.org.uk/Rulings/Adjudications/2016/7/Hutchison-3G-UK-Ltd/SHP_ADJ_310695.aspx#.V5ijHE32ZhE
jbho: surprisingly, there was no mention of the role the puppet may play in influencing underage viewership. I always worry that ads containing child-related imagery (puppets, animation, etc.) should be treated as child directed.

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