Following our latest lesson about advertising, I conducted some research about complaints, adjudications and also found some examples.
Complaints
What is a complaint?
A complaint, in legal terminology, is a formal legal document that sets out the facts and legal reasons that the filing party or parties (the plaintiff) believes are sufficient to support a claim against the party or parties against whom the claim is brought (the defendant) that entitles the plaintiff to a remedy.
Adjudications
What is adjudication?
The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. The equivalent of a determination. It indicates that the claims of all the parties thereto have been considered and set at rest.
Three types of disputes are resolved through adjudication: disputes between private parties, such as individuals or corporations; disputes between private parties and public officials; and disputes between public officials or public bodies. The requirements of full adjudication include notice to all interested parties (all parties with a legal interest in, or legal right affected by, the dispute) and an opportunity for all parties to present evidence and arguments. The adjudicative process is governed by formal rules of evidence and procedure. Its objective is to reach a reasonable settlement of the controversy at hand. A decision is rendered by an impartial, passive fact finder, usually a judge, jury, or administrative tribunal.
The ASA
Each year, the UK public sees many millions of ads, direct marketing and digital communications about products, services, charities, causes and awareness campaigns. The vast majority of these are responsible and comply with the existing advertising rules.
In 2008 the ASA received just over 26,000 complaints and assessed thoroughly every one of those concerns, investigating the ads that seemed to breach the rules. As a result, nearly 2,500 ads were changed or withdrawn in 2008, thanks to a range of effective sanctions at our disposal and the cooperation of advertisers who respect our decisions.
Some examples from October 2010
Beiersdorf UK Ltd, 6 October 2010
A TV advert for a sun lotion featured a voice-over stating "New Nivea Protect and Bronze is our first sun lotion which helps protect your skin whilst its active ingredient supports your natural tanning ability without any self tan." The voice-over also claimed "after all, 57% of us admit to being envious of friends who tan easily..." On-screen text read "57% of 11,505 respondents...".
Complaint/Decision
A doctor complained that the advert was harmful and prejudicial to health because it suggested that the ability to tan easily was desirable and to be envied. The complainant argued that tanning was a sign of skin damage and, in light of the dangers of skin cancer, should be discouraged.
The ASA took the view that the statistic in the advert reflected the fact that many consumers liked to tan. It considered that the advert accepted that tanning was popular by encouraging consumers to use a product that provided sun protection whilst assisting with tanning. It acknowledged that the women featured in the advert were not excessively tanned and concluded that the advert was unlikely to be seen to encourage or condone behaviour prejudicial to health.
This adjudication is interesting because although tanning is potentially prejudicial to health, the advert encouraged the use of sun protection at the same time as tanning, and was therefore considered acceptable. The ASA did not comment on the statistic quoted in the advert by the advertiser because the complaint did not relate to substantiation, however a positive response of 57% in a consumer survey is arguably not a particularly emphatic percentage.
Sit-Up Ltd, 20 October 2010
A teleshopping advert for a wind-up radio featured a presenter encouraging viewers to purchase the product. The presenter stated "here comes the price that we paid for it, £18". The price at which the product was being sold was £4.
Complaint/Decision
The complainant challenged whether the claim "here comes the price that we paid for it, £18" was misleading and could be substantiated.
In its response to the ASA, the advertiser explained that a production error had meant that £18 was quoted as the advertiser's cost price, when in fact this had been £7.80. The ASA noted that customers who had bought the products had still received the product for less than the cost price, despite the error. However, presenting a price that was so much higher than the real cost price implied that consumers were getting a better deal than they actually were, which the ASA considered might have encouraged viewers who would not normally have purchased the product to do so. The complaint was therefore upheld.
Although this adjudication concerned a clear error on pricing, this is another area which often attracts complaints. When advertising these sorts of pricing incentives, advertisers need to ensure that they take account of the BERR Pricing Practices Guide as well as the CAP or BCAP Codes. The OFT is also currently looking at pricing issues including reference pricing.
Virgin Media Ltd, 27 October 2010
A newspaper/magazine insert for Virgin Media advertised "TV and calls from £5.50 a month when you switch to a Virgin phone line ... It's all yours from just £5.50 a month..." Text below stated "All the best channels", "Plus a range of HD channels" and "Plus loads On Demand" and showed logos of a number of TV channels and On Demand services. The text also stated "Over 500 movies On Demand, many in HD, and thousands of TV shows to watch whenever you want ...".
The advert contained small print which read "On Demand movies are pay-per-title. TV Choice On Demand is included with TV size XL or £7 a month with TV sizes M and L..."
On the third page, under the heading "£5.50 a month", ticked boxes stated "TV - 65 digital TV channels ...". Ticked boxes underneath the heading "£23 a month" stated "TV -160 digital TV channel ... All our amazing HD channels ...".
Complaint/Decision
The advert attracted a complaint from Sky, who challenged whether the claim "It's all yours from £5.50 a month" misleadingly implied that all the TV channels and On Demand services listed in the leaflet were included in the £5.50 package. Sky also challenged whether the claim "All the best channels" was misleading and could be substantiated, as only three of the listed channels were in the top 15 most watched satellite and cable channels.
The ASA considered that the tick boxes on the third page of the insert made it clear that 65 channels were included within the package. However, the tick boxes did not indicate which channels those were and the ASA considered that the use of the TV/On Demand logos with the claims "It's all yours from just £5.50 a month..." and "All the best channels" implied that all of the listed channels and services were included. As this was not the case, the ASA upheld the complaint in respect of Sky's first challenge.
In relation to the second challenge, the ASA considered that the insert did not make reference to the most popular or most watched channels, but instead referred to the "best" channels. The ASA considered that this was subjective and consumers would understand this to be Virgin's opinion. Accordingly the ASA did not uphold this challenge.
This adjudication, the latest in the ongoing battle between Sky about Virgin Media, is a useful example of the ASA allowing a "best" claim and acknowledging that consumers would recognise that the claim was an expression of the subjective opinion of the advertiser. Advertisers should still take care not to mislead when using such claims; the ASA in this case noted that the insert contained logos making it clear to which channels the claim related. However, this adjudication also emphasises the need for clarity when seeking to rely on a "from £x" claim, particularly for products or services which include complex packages.
Sony Europe Ltd, 6 October 2010
A TV advert featured children playing football in a large stadium full of supporters. After a shot on goal was saved, one of the boys turned away and spat. The advert cut to the same children playing in a park. On-screen text read "Imagine reliving the greatest games... Sony Internet TV".
Complaint/Decision
56 viewers complained that the shot of the child spitting was offensive and that the advert risked causing emulation of antisocial behaviour, on the grounds that it glamorised spitting.
The ASA noted that the scene in the advert was brief and appeared in the context of children emulating professional footballers, who spit after intense physical exercise. The ASA therefore did not consider that the advert was likely to cause serious or widespread offence, although it did note that some would find it distasteful. Also, the ASA considered that the final shot of the boys playing in a park emphasised the clearly fantastical context of the advert and did not consider that the act of spitting had been glamorised.
Despite a relatively large number of complaints, this is an example of an advert that was acceptable to the ASA, notwithstanding its acknowledgement that some consumers might find it in bad taste. This accords with recent decisions taken by the ASA, such as that in respect of the Nandos adverts. This is an example of a situation where emulation was not considered to be a risk on the basis that the advert was fantastical and removed from reality.
The Automobile Association Ltd, 13 October 2010
An internet sales promotion for driving lessons was entitled "HALF PRICE AA driving lessons from only £10.50 per hour*". The asterisk referred consumers to a footnote which stated that the discounted lessons were based on a minimum block booking of five hours, the first three hours of which would be charged at full price with the last two being charged at half price.
Complaint/Decision
One person complained that the headline claim was misleading, as the footnote stated that the first three hours would be charged at full price, with the fourth and fifth at half price.
The ASA upheld this complaint. It acknowledged that the asterisk referred consumers to the terms and conditions of the offer and noted that it was acceptable for the AA to offer discounted lessons dependent upon the booking of additional full price lessons. However, it considered that the headline claim implied that unlimited lessons could be booked at the discounted price; the promotion did not make clear that the discounted price stated was limited to two lessons booked as part of a block booking.
This adjudication reminds advertisers that conditions shown in adverts should qualify, rather than contradict headline claims in order to avoid misleading consumers. It is interesting to note that the conditions were available in subsequent click-throughs, but on the basis of the information in the advert, the ASA still concluded that the advert was likely to mislead.
Ryanair Ltd, 13 October 2010
A national press advert for Ryanair was headlined "CHEAPEST WAY TO THE SUN" and listed various destinations to which Ryanair travelled. Small print at the bottom of the advert read "Book now for summer 2010..." and gave the advertiser's website details.
Complaint/Decision
EasyJet challenged whether the headline claim "CHEAPEST WAY TO THE SUN" could be substantiated, and whether the advert was misleading because it did not make the clear on what the claim was based.
In its response to the ASA, Ryanair provided evidence in the form of fares published by its competitors and screen grabs from its competitors' and its own websites. The ASA considered this, but concluded that the statement "Book now for summer 2010..." meant that the claim must be substantiated by evidence showing that Ryanair was cheapest during the whole of summer 2010. Ryanair had not provided evidence to show that they were the cheapest for the whole period of summer 2010, and therefore the ASA concluded that the claim could not be substantiated. The ASA also noted that the advert did not make clear to consumers upon what the claim was based, and consequently readers were unlikely to know whether the claim was a price promise, an average claim relating to previous fares or Ryanair's opinion. Accordingly the ASA concluded that the advert was misleading and upheld the complaint.
This adjudication shows that if advertisers are making wide claims, they will need to have evidence to substantiate those claims. The ASA has upheld several claims against Ryanair in the past few years. Indeed, in 2008 the ASA specifically expressed extreme concern about Ryanair's breaches of the advertising codes and, in the same year, took the rare step of referring Ryanair to the Office of Fair Trading. The reference to the OFT was concluded somewhat unconvincingly in July 2009. Following that there were no complaints about Ryanair adverts for a year, until EasyJet successfully challenged a Ryanair advert in July 2010 and now this adjudication.
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