This article provides a selection of the most interesting ASA adjudications from November and a summary of the key issues considered in those adjudications.

A number of the adjudications where complaints were upheld relate to adverts on posters featuring images of a sexual nature. The impact of the Bailey Review can clearly be seen in relation to these adjudications.

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Full Article

This article provides a selection of the most interesting ASA adjudications from November and a summary of the key issues considered in those adjudications.

A number of the adjudications where complaints were upheld relate to adverts on posters featuring images of a sexual nature. The impact of the Bailey Review can clearly be seen in relation to these adjudications.

ADJUDICATIONS

COSMETICS

1. Unilever UK Ltd, 23 November 2011

This adjudication concerned a poster for Lynx shower gel featuring a picture of a young woman standing under an outdoor shower on a beach wearing a bikini with the model clasping the undone bikini top to her chest. The text on the advert above a large bottle of the product stated "The cleaner you are the dirtier you get" and text at the bottom of the advert stated "Visit Facebook.com/lynxeffect and get dirty this summer".

Complaint/Decision

The ASA received a total of 113 complaints about this advert. The complainants challenged the advert on the following grounds:

1) whether the advert was offensive because it was sexually suggestive, provocative, indecent, glamorised casual sex and because it objectified women;

2) whether it was irresponsible because it was inappropriate for public display, where it could be seen by children; and

3) whether it was irresponsible because it promoted promiscuity.

The ASA upheld the complaints in relation to the first two complaints, but not the third.

Whilst the ASA considered that the poster was not graphic or indecent, they considered that the suggestive text particularly placed next to the image of the women with the unfastened bikini was clearly intended to imply that using the Lynx product "would lead to more uninhibited sexual behaviour". The ASA therefore considered that the poster objectified women because consumers to make a link between purchasing the product and sex with women. The ASA also considered that the combination of the image, the suggestive text and the fact that the advert was in a poster form on public display was likely to offend many members of the public, particularly those accompanied by children. The ASA concluded that the poster was therefore likely to cause serious or widespread offence.

For the same reasons, despite the efforts made by Clear Channel to limit the locations of the advert (the poster was not displayed near any schools to minimise the exposure to children; in areas in which there was a majority ethnic population or those areas near to religious places of worship, to reduce any cultural or religious sensitivities; or in areas in which they had received complaints regarding ads before) the ASA considered that the advert was not suitable for display in places where it might be seen by children. The ASA was particularly concerned that a number of the complaints received had been from complainants who had had the adverts pointed out to them by their young children, or had been asked by them to explain the meaning of the text. However, despite receiving 12 complaints on the issue, the ASA did not consider that the advert was irresponsible in promoting promiscuity because it did not feature a sex scene or suggest that unprotected sex/ sex with multiple partners was desirable.

The billboard owners, CBS Outdoor, had sought a view from CAP Copy Advice prior to displaying the adverts. There was some discrepancy as to the content of this advice. Unilever submitted that it understood that CAP Copy Advice had advocated caution but not given a definitive comment either way and in light of that advice Unilever had concluded that the poster was unlikely to cause serious or widespread offence. The ASA in the adjudication said that CAP Copy Advice had told CBS that it was likely that the poster would generate complaints which would be passed onto the ASA investigations team. They had been informed that the combination of the image and the tagline in an untargeted medium were quite likely to be problematic.

The ASA had previously considered two TV adverts from the same campaign which it had found did not warrant investigation. However, the previous adjudication had been in part due to the fact that those adverts had been subject to viewing restrictions which meant that children were less likely to see them. In contrast posters are an untargeted medium and likely to be seen by a variety of age groups. The ASA considered that this advert should be considered on its own merits and outside the context of the wider campaign. Potentially suggestive or sexual advertising in outdoor sites are particularly sensitive areas following the Bailey Review and the establishment of the Advertising Association's ParentPort (insert link to www.parentport.org.uk). In response, the ASA altered its approach to this type of outdoor advertising and published guidelines as to what is likely to be acceptable and what is likely to be more problematic. As ever with adverts which are potentially offensive, targeting is key. Marketers should consider carefully the medium used when creating adverts. What may be acceptable in one medium could be deemed inappropriate in others.

2. Unilever UK Ltd, 23 November 2011

This adjudication concerned a campaign related to the Unilever Lynx advert above, and concerned five internet display adverts (on Yahoo!, Hotmail, Rotten Tomatoes, Anorak and Spotify) for Lynx Dry Full Control deodorant. Each of the adverts showed Lucy Pinder, carrying out various activities including getting dressed, washing a car, eating ice cream and standing under a washing line. Each scene showed her wearing outfits that revealed her cleavage. Each of the adverts included text such as "Can she make you lose control? Put the premature perspiration to the test" or "What will she do to make you lose control?", "Lucy Pinder [blank]ing makes me prematurely perspire" and "Play with Lucy".

Complaint/Decision

Ten complainants challenged whether the adverts were offensive because they were sexually provocative and degrading to women and whether the adverts were irresponsible because they were inappropriately located on sites that could be viewed by children.

The complaints about the adverts being offensive were all upheld. Although the ASA accepted Unilever's argument that the adverts were intended to be tongue-in-cheek, it considered that the various activities carried out by Ms Pinder were presented in a sexually provocative way and were likely to be seen as objectifying women. The suggestive text that accompanied the images were also likely to be seen as objectifying women and degrading to them and so the adverts were likely to cause offence.

In consideration of the targeting of the adverts, in relation to the adverts as placed on the Rotten Tomatoes and Anorak sites, the ASA noted that it had not been provided with evidence to demonstrate that the proportion of users of these sites were over 16. In addition, because they understood that these sites were not protected by age verification procedures or similar targeting, the ASA considered that the adverts could be viewed by a wider audience. Because the ASA considered the adverts to be unsuitable and could be seen by children, the complaints that the adverts were irresponsible in this respect were upheld.

However, in relation to the adverts that were placed on Hotmail, Yahoo! and Spotify, the ASA noted that Hotmail targeted the adverts at males between 16 and 25 and that 94% of Hotmail users were over 15 and 91% over 18. It was also noted that Yahoo! had targeted the adverts at males over the age of 18. In relation to Spotify, the advert was targeted to users over 16 and, upon registering, Spotify users had to verify their age.

As a result of these controls, and despite the concern that the adverts were likely to cause offence, the ASA considered that the adverts as placed on these websites were unlikely to be seen by those under the age of 16 and therefore concluded that they were not irresponsible on those grounds.

As with the previous adjudication, this adjudication demonstrates the significance of targeting adverts to the appropriate demographic. The age verification procedures and targeting capabilities of online platforms must be sufficiently researched by a marketer to ensure all reasonable steps are taken to protect children. However, the content of this advert was still considered to be offensive, regardless of where it was screened.

It is also interesting to note that Unilever have used the adverse adjudication to gain further publicity for the brand. In response, they issued a tongue-in-cheek video featuring Lucy Pinder fully clothed wearing a long sleeved woolly jumper, returning the props used in the original advert, including cheerleader pom poms and a monkey toy. Ms Pinder apologises for any offence caused by the online adverts whilst a breaking news style ticker tape runs across the bottom stating: "Lynx apologises for any offence caused".

3. L'Oreal (UK) Ltd t/a Lancôme Paris, 23 November 2011
This adjudication concerned a magazine advert for mascara featuring three models and text stating "Lancôme Paris Dreaming of a Doll Lash effect? Hypnose Doll Eyes Doll Lash Effect Mascara – Wide-Eyed Look..."

Complaint/Decision

A member of the public and Jo Swinson MP, who has been significantly involved in a campaign against misleading advertising images for cosmetics and recently had two complaints upheld against L'Oreal brands Lancôme and Maybelline [insert link to ASA Snapshot July 2011], challenged whether the advert was misleading because, in their opinion, it exaggerated the effect of the product beyond that which the ordinary consumer would be able to achieve.

The ASA did not uphold this complaint. The ASA acknowledged that consumers expected professional stylists and photographers to have been involved in creating images featured in adverts for beauty products. Lancôme had also submitted pictures from laboratory testing and consumer-use tests that demonstrated that the product could enhance lash length and volume.

Although Lancôme used post-production techniques to add length to some individual lashes to create a uniform lash line and tidy up the look of the lashes, including replacing damaged or missing lashes, they had not added any volume or lash thickness and no lash inserts had been used. The ASA was satisfied that the lash length did not exceed the likely consumer expectations as to what is achievable. As a result the advert was considered "accurately" to illustrate the effects of the product and was not misleading.

Although contested by Jo Swinson, this adjudication shows a somewhat more sensible approach by the ASA, reminiscent of an adjudication also for L'Oreal, back in 2002, before the current furore about the use of post-production procedures, when the ASA concluded it was not misleading to use post-production techniques to fill in gaps in Kate Moss' eyelashes.

This adjudication can be distinguished from the previous adjudications in July 2011 because the evidence provided allowed the ASA to reach the conclusion that the advert accurately demonstrated what the product could achieve, whereas in the July adjudications this was not the case. This adjudication demonstrates that reasonable enhancements to photographs featured in beauty product adverts are permitted, provided that these do not exaggerate the effects of the products and there is sufficient evidence to substantiate such effects.

4. My City Deal Ltd t/a Groupon, 23 November 2011

The ASA considered an email promotion offering discounted cosmetic surgery procedures. The promotion was stated to be valid for one day only. When clicking on the details of the promotion, the consumer was re-directed to the Groupon website that included fine print that stated that once the discount voucher was purchased, the user had 6 months to redeem it before it expired. The page also stated "Altering the physique needs a lot of careful consideration..."

Complaint/Decision

The Independent Healthcare Advisory Services and one member of the public challenged whether the offer was irresponsible because it encouraged recipients to hurry into a decision to purchase cosmetic surgery.

The complaint was upheld. The ASA noted that Groupon had taken reasonable steps to ensure that when a voucher was purchased, the consumer had the opportunity to contact the cosmetic surgery clinic for advice and that they also encouraged the consumer to seek independent advice about any such procedures.

However, the ASA noted that the Marketing and Advertising Code of Ethics of the British Association for Aesthetic Plastic Surgeons prohibited discounts with a deadline date for booking appointments. Similarly, these types of adverts went against the General Medical Council's good practice guide.

Whilst the advert made clear that the offer was available only to over 18s, the ASA understood that it may have been sent to those who had not previously considered having cosmetic surgery. The ASA considered that the decision to undergo physically invasive procedures was one that required substantial consideration. The ASA understood from BAAPS that multiple consultations were required before proceeding with a cosmetic surgery procedure, and that, in some cases, candidates could be referred to a clinical psychologist to help assess their suitability for surgery. Once the surgeon and candidate were satisfied that they were suitable for surgery, candidates were even then advised to wait a minimum of two further weeks before booking and going ahead with the procedure. Although once purchased consumers had six months in which to redeem the voucher and to consider their decision before confirming their appointment with the clinic, they only had 24 hours in which to buy the voucher (at a cost of £1,999). As a result, the ASA considered that the consumer would only have a very short period of time in which to decide whether he or she was financially and mentally committed to going ahead with a cosmetic procedure.

As a result they considered that the very limited time available in which to purchase the pressured consumers into making a decision to (to all intents and purposes) purchase cosmetic surgery. The ASA therefore concluded that the advert was irresponsible.

It is interesting to see the ASA relying on industry guidance in their decision. Although the concept of very limited time offers is not in itself irresponsible, where the offer concerns an invasive treatment or substantial decision which would usually require a particularly in-depth decision-making process, such time limits can be inappropriate. This is yet a further adjudication upheld against Groupon – a total of 13 in the last 11 months (plus 40 informally resolved complaints).

5. Coty UK Ltd, 9 November 2011

This adjudication concerned a magazine advert (for ES magazine and Sunday Times Style magazine) for "Oh, Lola!" perfume, featuring actress and model Dakota Fanning, sitting on the floor alone wearing a pale coloured thigh length dress. She was leaning backwards supported by one arm and in the other hand she is holding an oversized bottle of perfume that is resting on her lap.

Complaint/Decision

Four readers challenged whether the advert was offensive and irresponsible because it portrayed the young model in a sexualised manner.

The complaint was upheld. Coty informed the ASA that they had not received any complaints and that they did not believe the styling suggested the model was underage or that she was inappropriately sexualised, in particular because no private body parts were shown and there are no images of sexual activity. Coty also stated that the adverts were used in highly stylised fashion magazines where readers would be over 25.

The ASA noted the point regarding the target readership. However, they considered that the position of the perfume bottle being held on the model's lap between her legs was sexual provocative and the short dress, showing part of her right thigh drew attention to her sexuality. Although the model was 17, the ASA considered that she looked 16. As a result the ASA considered that the advert had the effect of sexualising a child and was therefore irresponsible.

This is yet another adjudication made in light of the Bailey Review. Although the adjudication may well have been upheld prior to the review, advertisers will now have to take particular care with this type of advertising. This advert was not a billboard and yet the complaint was still upheld. It is not clear whether the result might have been different had the advert appeared in a more targeted magazine.

Advertisers must consider how old the model looks as well as how old he or she is. Even if he or she is over the required age, the ASA may still deem the advert to be inappropriate if he or she looks younger.

LEISURE

6. Warner Music UK Ltd t/a Atlantic Records, 23 November 2011

This adjudication concerned a magazine advert for a music CD that contained a review of the CD by a magazine that used the phrase "A Rousing Roaring Return".

Complaint/Decision

The complainant believed that the advert was misleading because the text "A Rousing Roaring Return" was not part of the text that appeared in the magazine review and therefore misrepresented the conclusions of the review.

The ASA upheld the complaint. Warner Music argued that although the quote was not contained in the review in the issue of the magazine in which the advert appeared, it was a verbatim excerpt from a review of the first single from the album, which appeared in an earlier issue of the magazine. Warner Music considered it reasonable to assume that the review of the album would have been at least similarly positive to the review of the single. In addition, because the review and the advert were appearing in the same issue they said that the team creating the advert would not have had prior knowledge of the contents of the review.

The ASA that it was inappropriate to use the review of one track of an album to advertise the whole CD. The review should have been attributed to the single only. Therefore the advert was found to be misleading and not substantiated.

It is important that reviews of products relate to the exact product in an advertisement. Reviews of one product should not be extrapolated for use in relation to another similar or related product. It is certainly worth noting that, in this instance, the tone of the review of the album CD differed from that of the single being advertised.

7. Rage Media Ltd t/a The Skinny, 23 November 2011

The ASA considered a promotion to win a tablet in The Skinny magazine. The promotion related to the Edinburgh International Science Festival and stated that in order to celebrate the opening of the festival, a Samsung Galaxy Tablet PC was available to one reader. The terms of the promotion stated that the closing date for entry was 30 April 2011. The promotion stated that other terms were available on the website and stated that "Winners will be notified via email after the closing date and prior to the expiry date of the prize".

Complaint/Decision

The Institute of Promotional Marketing challenged whether the competition had been administered fairly because the winner was given under one week to respond to the promoter. The original winner had not been able to respond in time because she was away on holiday.

The complaint was upheld. Rage Media stated that they regularly ran promotions and each prize required different response times, for example some prizes were tickets so needed to be claimed before the performance date. They believed that they had given a reasonable time for the original winner to respond, in light of the average response times of competition winners generally.

The ASA recognised that some prizes were time specific and may require a short deadline, however, this was not the case with the promotion in question. Significantly, neither the advert nor the T&Cs included a date by which the winner must claim their prize. Since the winner had been given under a week to claim the prize, and since there had been no indication that there was a deadline for claiming the prize, the time limit was unreasonable. Therefore the ASA concluded that promotion had not been administered fairly.

Unreasonable deadlines in relation to promotions and, in particular, in relation to claiming prizes will not be considered acceptable by the ASA. Any deadlines imposed must be specified in at least the terms and conditions, if not the advert itself.

8. Northern & Shell plc t/a OK!, 30 November 2011

The ASA investigated complaints made in relation to three television adverts for OK! magazine. The adverts featured images of the magazine's content and a voice-over which included "World exclusive – TOWIES Lauren speaks for the first time about aborting Mark's baby..."

Complaint/Decision

Ten complainants considered the adverts to be offensive and irresponsible because they trivialised the topic of abortion. In addition, two complainants challenged whether the adverts were suitable for broadcast before 7pm.

The complaints were not upheld. The voice-over in the adverts had a "sing-song voice" which, in the ASA's view, represented the gossip style of the magazine. Whilst the ASA noted that some viewers would consider the overall tone of the advert to be sensationalist and to consider the presentation of abortion as distasteful, the ASA considered that the majority of viewers would understand that the presentation of the story reflected the content of the gossip magazine and that it was not an article that was seeking to address the moral arguments for or against abortion. On this basis the ASA concluded that the advert was not irresponsible or likely to cause serious or widespread offence.

The adverts had an ex-kids timing restriction (i.e. they were not to be shown on children's channels or around children's programmes). The ASA considered that the advert did not need to be kept away from times when older children would be watching television, and therefore concluded that the ex-kids timing restriction was sufficient.

The mere mention of a controversial issue in a light-hearted manner will not necessarily be considered by the ASA to be offensive to the public if the viewers/ readers would readily understand the advert in the context of the product/ service (for example, in a gossip magazine).

9. Merlin Entertainments Group Limited, 30 November 2011

This adjudication concerned a poster for an interactive movie experience at Madame Tussauds featuring images of superheroes with text around the image stating "Amazing" "Stupefacente", "Ersaunlich" and "A ne pas manquer". Under each word were five stars.

Complaint/Decision

A complainant challenged whether the advert was misleading because the use of five stars under each word implied that the experience had received positive reviews from critics.

The complaint was upheld. The ASA noted that the poster was an imitation of a movie poster. Unlike movie posters the comments were not attributed to any critic. However, the ASA considered that readers would be aware of this and the fact that the comments instead related to reviews from visitors to the experience.

The ASA acknowledged that the phrases used on the poster were comments left by guests and the average rating given by guests was 9.4 out of 10. Merlin said it had used an artistic licence to translate these ratings into 5 stars. However, the ASA considered that the phrases in Italian, German and French implied that visitors from those countries had made the comments, whereas the ASA understood that these were merely translations of comments that were made in English. Furthermore, the ASA considered that the five stars featured under the four phrases implied that four people had rated the experience as being five star, however, they understood that visitors had not been asked to rate the experience according to a star rating system. Therefore, the ASA found that the poster gave the impression the comments were genuine quotes from visitors to the experience. Because this was not the case, the ASA concluded that the advert was misleading.

When including positive feedback in adverts it is not necessarily essential to indicate where the feedback has come from when this can be readily interpreted by the consumer. However, the endorsements used in the advert should accurately reflect the rating system and feedback originally obtained.

FASHION

10. Prada Retail UK Ltd t/a Miu Miu, 23 November 2011

This adjudication concerned an advert in Tatler Magazine for Miu Miu that featured the young model and actress, Hailee Steinfeld. In the advert, Hailee was shown sitting on railway tracks, looking upset and like she may have been crying.

Complaint/Decision

One complainant considered that the advert was irresponsible because it was suggestive of youth suicide, and they were particularly concerned that the advert may be seen by impressionable young people. In addition, the ASA challenged whether the advert was irresponsible because it showed a minor in an unsafe location.

The first complaint was not upheld, but the second complaint was.

Prada stated that the photos were part of a campaign based on an imaginary film and that the photos were "between takes" shots, in which the model was acting in an unconscious manner and not posing and she had not been asked to look upset.

The ASA noted that he advert contained stylised images of the model dressed in 1940s adult clothing and the Miu Miu brand was not aimed at teenagers or children. The ASA considered that because the advert was targeted at a high fashion magazine with mainly adult readership, the readers would understand that the image was sufficiently removed from reality and that it represented a staged fashion shoot. The ASA therefore took the view that the advert was not suggestive of youth suicide.

The ASA noted that the image was of the model on an abandoned railway train track and it clearly showed that no train was in sight, in addition, it was clear that the model was not constrained in that position, that she was not playing on the railway track, and the advert was placed only in serious high fashion magazines which were not aimed at children. However, because the model was only 14 when the photograph was taken and the scene depicted a potentially hazardous situation, the ASA concluded that the advert was irresponsible.

The ASA is particularly strict in applying rules to adverts that depict children, even when such adverts are specifically aimed at an adult audience. In this case the ASA expressed no overt concern in the adjudication that the advert would be seen by children, but still managed to reach the conclusion that actually showing a child in a potentially dangerous situation was irresponsible.

11. Marks & Spencer plc, 30 November 2011

This adjudication concerned two posters on buses, advertising lingerie. Both posters featured two images of two women wearing lingerie in different poses. The first advert featured a close up of a woman lying on her side and a woman kneeling on a bed. The second advert featured a close up of a woman lying on a bed with her legs slightly apart, and a second woman sitting on a bed.

Complaint/Decision

Several complainants argued that the first advert was offensive because the images were overtly sexual and objectified women. In addition, several complainants challenged whether both adverts were suitable for display on posters on buses, as the images were sexually suggestive and likely to be seen by children.

The ASA upheld only one of the three complaints. In relation to the first complaint, the ASA noted that there was no explicit nudity and considered reasonable to feature women wearing underwear in an advert for lingerie. In the context of a lingerie advert they considered that viewers would be less likely to view the images as gratuitous and having the effect of objectifying women. Although the ASA considered that the pose of the woman kneeling on the bed was overtly sexual, because her legs were wide apart, her back arched and she had one arm above her head with the other touching her thigh, they considered that the pose of the woman lying on the bed was only mildly sexual in nature, as not all of her face was visible and there was some emphasis on her breasts. Therefore overall ASA considered that, although some people might find the advert distasteful, in the context of it being an advert for lingerie, they concluded that it was unlikely to cause serious or widespread offence.

In relation to the complaints that the adverts were unsuitable for display on buses, the ASA considered that most children viewing either advert would understand that they were advertising lingerie and therefore would not expect the models to be fully clothed. In relation to the second advert the ASA considered that, in the context of a lingerie advert, the image of the woman sitting on the bed, was not likely to be seen as sexual and the pose of the woman lying on the bed was mildly sexual, as her legs were slightly apart and her hands behind her head. Therefore the ASA concluded that the use of this advert on bus posters was not socially irresponsible.

In contrast, the ASA considered that the pose, in the first advert, of the woman kneeling on the bed was overtly sexual, as her legs were wide apart, her back arched and one arm above her head with the other touching her thigh. The ASA also noted that the woman in this image wore stockings. As a result, the ASA considered that the image was of an overtly sexual nature and was therefore unsuitable for untargeted outdoor display, as it was likely to be seen by children. Therefore the ASA concluded that the advert was socially irresponsible.

12. H&M Hennes & Mauritz UK Limited, 9 November 2011

This adjudication concerned a television advert for H&M clothing store featuring a female model wearing a jacket and high heels and striking different poses for the camera.

Complaint/Decision

A total of nine complainants challenged whether the advert was offensive and harmful because they believed that the model looked unhealthily thin and could give an unrealistic idea of a desirable body image to children. One complaint suggested that the advert was socially irresponsible on the basis that it would encourage unhealthy eating habits in vulnerable people who might attempt to look like the model shown.

The ASA did not uphold any of the complaints. The ASA acknowledged that the model was slim and that wearing the short coat and high heels emphasized the length and thinness of her legs. However, the ASA found the advert to be typical of those for fashion products and did not think that the model appeared too thin or that she looked unhealthy or emaciated. The ASA also considered that because the model was shown striking various poses in the coat and the image was accompanied by on-screen text stating the price of the product, the advert would be interpreted by viewers as promoting the clothing rather than a desirable body image. Therefore, the ASA considered that the advert was unlikely to be seen as irresponsible, or cause harm or serious or widespread offence.

This decision can be contrasted with the ASA's adjudication in Drop Dead Clothing Ltd (9 November 2011) which concerned an advert for a clothing retailer that included several images of a model wearing bikinis and denim shorts. The complainant challenged whether the advert was irresponsible because the model looked unhealthily thin. The ASA upheld the complaint, finding that the model was very slim and that her ribs, hips, collar bone and thigh bones were highly visible in the images. On this basis, and combined with the stretched out pose and heavy eye makeup also featured, the ASA considered that the model looked underweight. The ASA also noted that the target market for Drop Dead clothing was young people and considered that the images might represent an image that the audience would aspire to. Therefore, they considered that, whilst the images might not cause widespread or serious offence, the advert was nonetheless irresponsible.

However, there is clearly a fine line between what will be acceptable and what will not. The model in the Drop Dead advert is arguably no thinner than the model in the H&M advert, but the fact that the latter was wearing a coat in the images meant that the elements of the Drop Dead images that the ASA were concerned with (such as hollow thighs, visible ribs and hip bones) were not visible in the H&M advert. In addition, the heavy eye make-up on the Drop Dead model which enhanced the hollow look of her face and the overall styling (messier hair, less of a "polished" look) gave the impression that the Drop Dead model was not as healthy as the H&M model.

The issue of using underweight models in fashion adverts has been an issue for a number of years. Similar to the issue of the use of child models, these two decisions show how the ASA will consider the whole context of the advertisement, including styling of photos, text and target audience when considering such sensitive issues.

MOTOR

13. Fiat Group Automobiles UK Ltd, 23 November 2011

A regional newspaper advert for the Fiat 500 TwinAir was headlined "Try a whole new kind of speed dating" with further text stating "First, find a new girl and say 'If I don't like you by the time we've driven to Land's end and back, it's a non-starter.'... The Fiat 500...as well as being a blast to drive, is the lowest CO2 emission petrol engine in the world".

Complaint/Decision

One complainant challenged whether speed was the main message of the advert, in particular because of the reference to speed in "Speed Dating" and "a blast to drive".

The complaint was not upheld.

The ASA disagreed with the suggestion that the main message of the advert was speed. The ASA concluded that the main message was in the context of speed dating and that the claim "a blast to drive" would be seen as a message that the car was fun to drive. As a result, the ASA concluded that the advert would be unlikely to encourage anti-social behaviour and irresponsible driving.

FOOD & DRINK

14. Unilever UK Ltd, 2 November 2011

This adjudication concerned an advertorial for Flora pro.activ on the Telegraph website which included the headline "Flora pro.activ: Stepping up the pace. Telegraph journalist Chris Jones tried Flora pro.activ and brisk walks to lower cholesterol". There was a photo of Chris Jones walking in the park. The main body of the advert recounted Chris Jones' experience of combining the changes to diet and exercise routine with drinking Flora pro.activ. The top right-hand corner stated "in association with Flora pro.activ".

Complaint/Decision

One complainant challenged whether the advert was misleading because it resembled a news article written by a journalist and did not appear to be a marketing communication.

The complaint was upheld. The ASA noted that there was a web-link (flora pro.activ) above the main title of the advertorial. In addition they noted the other heading "in association with Flora pro.activ", but considered that it was not clear that this related to the advert because it appeared on the far right-hand side of the webpage above listings for other cholesterol-related articles, with a line dividing that part of the page from the advertorial. Although they noted that the title, sub-title and text at the end of the advert all referred to Flora pro-activ, the ASA considered that these references were not sufficient to counter the overall impression created by the advertorial, written in the style of a health and lifestyle article, that it was an article written independently by a Telegraph journalist.

Unilever had said that they did not believe that the majority of their visitors would have been misled because they were able to provide viewing figures for the page of just over 21,000 people, whilst the ASA had only received one complaint. However, the ASA did not consider that this demonstrated that only the complainant had been confused, because not all visitors who had not identified the feature to be an advertorial would have raised a complaint because they could have understood the advert to be a health article. The ASA concluded that the advert was misleading because it did not make it clear that it was marketing communication.

This decision demonstrates clearly that the ASA will entertain a complaint even where there has been only one complaint received and the majority of consumers were not misled by an advert and despite evidence of a high number of views to the web page. This adjudication also serves as a reminder that all advertorials must be clearly identified as marketing communications. Any advertorial or similar promotions must clearly indicate that the piece is a marketing communication.

15. Wells & Youngs Brewing Company Ltd, 30 November 2011

This adjudication concerned a cinema advert for Estrella Damm lager. The advert showed images of a young man arriving at a coastal destination to attend a catering course during the summer. There were scenes of him becoming friends with a group of young people over that time and engaging in various activities. Specific scenes showed the group working in the kitchens, playing cards and drinking beer around a table, and the next scene showed them swimming in the sea and riding motorbikes. In other scenes the group of young people were sightseeing, drinking beers in a field, then followed by a scene of a man snorkelling. There were also scenes of them attending a concert, collecting sea food, falling in the sea in the day, skinny dipping, jumping off a boat, and drinking and dancing on the beach at night, followed by a scene of them swimming at night.

Complaint/Decision

One complainant challenged whether the advert was irresponsible because it made a link between alcohol and activities such as swimming and riding motorbikes in which drinking alcohol would be unsafe.

The complaint was upheld. The ASA stated that the daytime scenes of drinking beer and other activities such as swimming and riding motorbikes, were unlikely to be considered by viewers to be chronological or directly linked. They took the view that viewers would know those activities occurred at separate times. This was particularly illustrated by the fact that the picnic scene where the group drink beer in a field that was immediately followed by a scene of a man scuba diving, from which they considered that viewers would not infer that the man had gone diving after he had been drinking alcohol.

In contrast, the ASA considered that the night time scenes of the group drinking and dancing on a beach that was immediately followed by three men running into the sea were likely to be interpreted by viewers as being directly chronological and having taken place on the same evening. Although the ASA noted that the water that the men were in was not deep, they considered that viewers would infer that the characters had been drinking alcohol before going swimming at night. This was unsafe. On the basis of these scenes, the ASA concluded that the advert was irresponsible.

This is quite a strict adjudication. The ASA was arguably not consistent in their view of when viewers would understand scenes to be directly chronological and when they would consider them to be separated in time. However, the Code takes a strict approach to alcohol adverts, so the safest course is to not show any scenes depicting activities that would be unsafe to undertake when under the influence of alcohol. Alternatively, making it clear that the two events were separated in time (for example by clearly distinguishing between day and night or location) would be a plausible way to avoid these risks.

16. Channel Four Television Corporation, 23 November 2011

This adjudication concerned a complaint about the scheduling of a television advert for Brothers cider on Channel Four. The advert was cleared by Clearcast with an 18 scheduling restriction, but was shown during an episode of Embarrassing Bodies: Teen Special.

Complaint/Decision

One complainant challenged whether the advert was inappropriately scheduled because it was shown during a programme that targeted an audience below the age of 18.

The ASA did not uphold the complaint. The advertised product contained more than 1.2% alcohol by volume and therefore the advert fell into the category of adverts that should not be broadcast in or adjacent to programmes commissioned for, principally directed at, or likely to appeal particularly to audiences below the age of 18. However, the ASA noted that the audience index for the episode of Embarrassing Bodies: Teen Special demonstrated that the programme was not of particular appeal to under 18-year-olds. Therefore the ASA concluded that the advert was not in breach of the BCAP Code scheduling rules.

Although the title of the programme suggested that it was aimed at teenagers, this adjudication shows that such presumptions can be rebutted by evidence that the actual audience demographic is different. The audience index for programmes is clearly very influential in the ASA's decisions on suitable scheduling.

HOUSEHOLD

17. Jackel International Ltd, 30 November 2011

This adjudication concerned a magazine advert and a website advert for a range of hygiene products headed "Kind and gentle". Text in the magazine advert stated "Protect your baby from germs with Tommee Tippee's Closer to Nature hygiene range" along with a variety of other claims about the safety of the product.

Complaint/Decision

One complainant challenged whether certain claims were misleading for the following reasons:

1) "Kind and gentle" because the advert featured a biocidal product;

2) "Closer to Nature" because the product contained ingredients that were hazardous to the environment;

3) "free from alcohol and bleach, making it safe for you and your baby" because the complainant believed that for the cleaning products to work for 24 hours they must leave a residue on the surfaces that could be ingested by the baby;

4) "offering long-lasting protection against 99.9% of bacteria and viruses" because the complainant believed the products were not effective against bacterial spores and therefore could not be used for sterilisation of bottles; and

5) "leaves no taint" because he believed that the Byotrol in the product must remain on the surface to work for the claimed 24 hours.

The ASA upheld complaints 1) and 3) only.

The ASA noted that Jackel said they did not intend "Kind and gentle" as a specific product claim. However since the claim appeared beneath a picture of a pair of woman's hands cleaning a soother for an infant, with the surface wipe product prominently displayed, the ASA considered that, in the wider context of the advert (which covered a range of products and included the sub-heading "Protect your baby from germs with Tommee Tippee's Closer to Nature hygiene range"), it created the impression that the product claim was made in relation to the whole range.

The ASA noted that a biocide was used in the product range. The ASA considered that the Biocidal Products Regulations 2001 included a requirement that adverts for biocidal products should not include descriptions such as "low-risk" "harmless" or "non-toxic" which might mislead in respect of the risks associated with the product. Therefore, the ASA concluded that the claims "kind and gentle" and "free from alcohol and bleach, making it safer for you and your baby" in the context misleadingly implied that the product carried no risks and therefore breached the Code. In relation to the latter, the ASA also considered that describing the product as safe or harmless could lead to consumers using more than the recommended amount of the product, which could be dangerous.

In contrast, the ASA considered the claim "Closer to Nature" was not used in such a way as to imply that the product was wholly natural or safe for the environment without qualification. Therefore this claim was found not to be in breach.
The fourth complaint was not upheld because the ASA were happy that the results of tests submitted by Jackel sufficiently substantiated kill rates of at least 99.9% on the bacteria and viruses tested. Similarly, in relation to complaint 5) Jackel was able to demonstrate that the products were statistically unlikely to leave a taint on food that had been on contact with the traces of the products left behind on hands and surfaces. The ASA therefore concluded that the claim "leaves no taint" was not misleading.

This adjudication shows the fine line between claims which may be considered misleading and those which are acceptable. Clearly reference should be made to any relevant regulations (in this case the Biocidal Product Regulations) which may have an impact.

18. Mars Petcare UK, 16 November 2011

The ASA considered a complaint in relation to a television advert for a dog treat. A picture of a dog was shown accompanied by the voice-over "Jumbone shmunbone. I can chew any treat in no time". The advert showed a dog trying to eat the dog chew. The visuals were then speeded up and the sound track was accelerated and the dog eventually gave up on the dog chew. The voice-over then stated "Well I didn't mean this one did I" followed by "Pedigree Jumbone, the long lasting chewy treat".

Complaint/Decision

The complainant challenged whether the claim "long lasting chewy treat" and the visuals in the advert were misleading because both of the complainant's dogs had eaten the product in under one minute.

The complaint was not upheld on the basis that the ASA considered that Mars were able to substantiate the "long lasting" claim. The ASA considered that the advert was likely to be seen by consumers as a comparison with more traditional soft treats that were likely to only last a few seconds. The ASA noted that the average consumption time of the Pedigree treat was just over 3 minutes, and therefore in comparison to traditional soft treats considered that this was "long-lasting".

This decision is perhaps surprising because 3 minutes, although relatively long lasting in comparison to soft dog treats, does not in itself seem like it could be described as long lasting. In addition, 3 minutes is a short time in comparison to the time it would take for dogs to chew through harder, more substantial treats. Therefore, the ASA might well have required such an advert to make clear the basis on which the long-lasting claim was made (i.e. "in comparison to soft dog treats").

19. John Lewis Partnership plc, 30 November 2011

This adjudication concerned two national press adverts and a regional press advert for the John Lewis promotion, Never Knowingly Undersold.

a) The first advert was headed "Discover our range of Apple computers, all with a free 2-year guarantee". Further text stated "All our computers come with a free 2-year guarantee. All our shops are Never Knowingly Undersold so we won't be beaten on quality, price or service...".

b) The second advert promoted a Sony TV and free Blu-Ray player with text stating "Blu-Ray player...Free 2-year guarantee....all our TV's come with a free 5-year guarantee. All our shops are Never Knowingly Undersold..."

c) The regional press advert included the text "... Never Knowingly ..."

Complaint/Decision

DSG Retail Limited challenged whether the guarantees offered in a) and b) were genuinely free because they believed the guarantees had always been included in the price and therefore could not be described as "free". They also challenged whether the "Never Knowingly Undersold" price promise was misleading, because they believed that John Lewis would not price match products that did not have the same length of guarantee.

Both complaints were upheld. The ASA noted that marketers must not describe an element as "free" if that element was included in the package price, unless consumers were likely to regard it as an additional benefit. They considered that to avoid being misleading, John Lewis would need to show that the products had previously been on sale at the same price, but either without or with significantly shorter guarantees. This had not been demonstrated and as a result the advert was found to be misleading.

In relation to the price promise, John Lewis informed the ASA that they proactively matched the "box price" of their competitor's products and noted that this policy had been put in place following customer feedback. The ASA considered it acceptable in principle to exclude products that did not have the same length of guarantee from the price match policy. However, this was on the proviso that this information was presented prominently to the consumer in the advertisements. In this case, although the John Lewis website and leaflets explained that they would expect their competitors to provide a comparable length of guarantee before they matched their price, the adverts did not make clear the exact items on which the price promise was based and therefore the ASA concluded that they were likely to mislead consumers.

20. Moneysupermarket.com Limited, 30 November 2011

The Moneysupermarket website offered discount vouchers for personalised wall art and text next to the promotion stated "Canvas Buddy present £9 instead of £30 for a 48cm v 35 cm canvass effect portrait". Below the headline was an image of a canvas placed on the wall above a sofa with the width of the canvas being nearly the width of two seats of the sofa.

Complaint/Decision

Two complainants challenged whether the image was misleading because it exaggerated the size of the canvas that was part of the offer.

The ASA upheld the complaints. They considered that including the image of the canvas in the lounge setting would lead the consumer to believe that they would receive a product of comparable size, whereas the canvas on offer was considerably smaller. Even though only a small section of a sofa was visible in the image, the ASA considered the sofa to be sufficiently prominent to give customers an exaggerated impression of the size of the canvas. The ASA therefore concluded that the advert was misleading.

Again marketers are reminded to use only images that accurately depict the actual product on offer.

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 22/12/2011.