5% Cashback On All Purchases Must Be On ALL Purchases
American Express ran TV ads stating “There is a card that could give you 5% cashback on all purchases.” On the bottom of the screen, text in small print stated “Minimum annual spend for cashback eligibility is £3,000. 5% cashback in your first three months of Card membership. Maximum £100. Up to 1% cashback thereafter.” The offer was only available to new customers.
American express argued use of ‘could’ clarified that there were limitations on the rewards. The ASA felt that consumers would understand ‘could’ to mean the benefits were conditional on signing up, not conditions imposed on use of the card. Additionally, the diminutive disclaimer was not sufficient to override the overall impression consumers would get 5% cashback on ALL purchases without limitation. Thus the ads were misleading and must be pulled.
jbho: beware of using absolutes in your advertising copy.
Same Discount Offered On Different But Contiguous Promotions Misleading
Laura Ashley ran a seasonal promotion offering up to 50% off (later increased to 60%) through 2 January. However, the same items were discounted at the same amounts under a new promotion that began in January. The ASA found that consumers would expect prices to return to normal after 2 January, and although the second sale did not represent an extension of the initial offer, continuously advertising the same discount made the ads misleading as to the perceived discount.
jbho: when offering discounts, it’s best to establish some kind of ‘rotation rule’ where a regular price is re-established for substantial period of time – long enough to avoid claims of misleading Advertised Reference Prices (ARPs).
Retailer Increased Base Price Before ‘Free’ Offer
Online retailer John Lewis allegedly ran a promotion offering LG TVs with a free ‘sound bar’ for £1999. The ASA determined that John Lewis often sold the TV for £1,749 during the previous 10 months. John Lewis attributed the price increase to the manufacturer, who periodically supported discounts allowing TVs to be sold at the £1,749 rate, but ended its support for such programs. Nonetheless, given the pricing history, the ASA did not consider £1,999 to be the usual selling price, and felt the ‘Free’ soundbar offer was misleading, since consumers had to pay more than they did before that item was included.
jbho: hmmm. That’s a tough one. Seems like the supplier raised its prices, so there would b a strong argument the reference prices were legit. I wonder if better disclosures would make up for the alleged misleading elements of the campaign. Something like, “our supplier raised our prices, but to help you out, we’ll throw in a soundbar…”?
“0% Off” Not Part Of “Up To” Claims
Mountain Warehouse ran ads stating “UP TO 50% OFF EVERYTHING! LIMITED TIME ONLY!” However, certain items were excluded from the sale. Mountain Warehouse argued the exclusions were addressed in the “Up To” claim. The ASA ruled that everything meant all items were reduced, with a significant portion reduced by 50%. Since the ads were misleading, they must be pulled.
jbho: yet another reminder to be cautious when using absolutes in advertising.
Must Have Evidence Of ARP
Laptops Direct ran ads promoting laptops at a ‘was’ price of £417.97, ‘now’ £389.97. When questioned, Laptops Direct was unable to produce evidence it had advertised (or sold) units at the claimed Advertised Reference Price (ARP) of £417.97. Thus, the ads were misleading as to the true discount, and must be pulled.
jbho: a reminder of the importance of good documentation, and basing prices on provable, historical data.
Valid ARP Must Be Time, Volume Based
Currys sold a laptop at £1149.99 for 21 days, then ran a promotion with a reduced price of £949.99. The reduced price was valid for at least 32 days. Although the ad indicated that dates for which the laptop had sold at £1149.99, since the product was sold for a longer period at the £949.99 price, the lower price was really the ‘usual’ price. This was further supported by the fact only 7 units sold at £1149.99, but 74 units sold at £949.99. Thus the ads were misleading as to the true discount, and must be pulled.
jbho: a reminder to base ARPs on provable, historical data.
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.
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:
• £36.49 – lowest 2016 price
• £46.99 – price until two weeks before the Promotion
• £64.32 – Price during the Promotion
• £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.
jbho: always a fine line when mixing medias. Maybe they should have added a micro-machines type verbal disclosure to the voice over?
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.
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.
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.
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.
jbho: another reason to avoid absolutes in marketing copy.
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.
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:
or launch a keyword campaign identifying the company as an unethical advertiser.
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:
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.
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.
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.
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.
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.”
jbho: another reason to avoid absolutes in your marketing copy.
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.
jbho: any comparative claims must be substantiated, with appropriate disclosures in the ad.
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.
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.
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.
jbho: a reminder to clearly and conspicuously disclose the restrictions or limitations on any offer.
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.
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.
Dos and Don’ts Of Performance Claims
- my35 Health & Wellness Club allegedly made effectiveness claims about its Dermofibra clothing. ASA found the studies cited had not been published or peer reviewed, and were not appropriately randomized or blinded. Furthermore, no information about the statistical significance of the test results was provided. Thus, the claims made could not be substantiated, and the ads must be pulled.
- Space NK made effectiveness claims about the protection offered by its suncreams. ASA found the products had been adequately tested against nationally and internationally recognized standards, and statistical analysis showed the products did offer meaningful protection against UVA & UVB radiation. Thus, no further action was required.
- Procter & Gamble claimed its White Luxe Perfection toothpaste could remove surface stains by up to 100% within three days. The ASA found the study used as the basis for the claims was scientifically valid (even published in a scientific journal), and that the test group exhibited 100% reduction of stain at 3 and 14 days after use. The ASA felt the ‘up to’ claim was sufficiently qualified, and the ads were not misleading.
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
- Centrale Shopping ran a sweepstake, but failed to respond to questions about the how the competition was run as well as whether claimed prizes were actually awarded.
- Certeplex ran ads claiming its test prep BrainDumps website contained real exam questions, but failed to respond to ASA inquiries about the validity of those claims. https://www.asa.org.uk/Rulings/Adjudications/2016/11/CertplexLtd/SHP_ADJ_351113.aspx#.WBnfm00zVhE
- Cleaning supply company HDS Group the claim stating its products were “100% ECO FRIENDLY,” but failed to respond to ASA inquiries about the validity of those claims.
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.
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.
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
- Retailer Wood and Beyond advertised sales with expirations dates, but then continually altered the expiration dates and offered deeper discount amounts each time.
- Real estate rental Camborne Properties advertised rental starting prices that could not be substantiated, and promised services that did not appear to be offered.
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.
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.
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.
Two Companies Cited For Inflated ‘Regular’ Prices
- General retailer DSG advertised a laptop with a “was” price of £799.99, despite the fact that was an initial price that was in place for only a short period of time. The ASA felt the £799.99 price did not represent the usual selling price and the ad was therefore misleading.
- Bicycle seller UK Cycle Centre advertised a bike frame with a struck-through price of £999.99 – the Recommended Retail Price (RRP) for the frame. Since UK Cycle Center never sold the frame at that price, the ASA found the ad misleading.
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
- HVAC company Complete Energy Europe made unsubstantiated claims its system were 70% more efficient than other central heating systems. In the absence of any substantiating evidence, the ASA ruled the ads were misleading.
- Construction company Wallshield sent unsolicited direct mailings in plain white envelopes, which contained leaflets promoted protective wall coatings (in violation of the CAP Code).
- Shoe retailer thecsc.co.uk promoted look alike shoes under the “Fitflops” section of its website. In the absence of any evidence to show the shoes presented were truly “Fitflops,” the ASA ruled the ads were misleading.
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.
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.
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.
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.