ASA Adjudications Snapshot - December 2011

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

Also in this month, the ASA, Clearcast and the RACC have appointed a common panel of dermatological experts who will advise on the adequacy of evidence supporting claims in adverts, prior to the adverts appearing and in the event of a challenge.

This initiative is primarily designed to address the issue of disagreements between experts advising clearance bodies and those advising the ASA which has long been the subject of debate within the cosmetics industry, including in those cases where adverts that had been pre-cleared, were subsequently found to be misleading by the ASA. In addition the panel will aim to increase consistency and certainty for advertisers, increase consumer confidence in advertising claims in the beauty sector and provide transparency. Click here for more details.

In conjunction with the panel appointment, the ASA has also released guidance on test protocols for cosmetic claims:

In addition, PhonepayPlus, the UK's (Premium Rate Services) PRS regulator has issued Wild ACE Marketing Limited with a £9000 fine and prohibited it from involvement in the provision of premium rate services (PRS) for six months for sending unsolicited text messages to mobile phone users. Privacy and electronic communications regulations in the UK generally prohibit organisations from transmitting or instigating the transmission of unsolicited communications for the purposes of direct marketing by means of electronic mail unless the person receiving the mail has notified its prior consent for the messages to be sent. As a result Wild breached the PhonepayPlus Code of Practice provision that PRS providers and their promotional material must comply with the law.

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ADJUDICATIONS

COSMETICS

1. Spire Healthcare Ltd, 7 December 2011 (the ASA finds a poster advert for breast enhancement surgery irresponsible for trivialising cosmetic surgery)

2. L'Oreal (UK) Ltd, 14 December 2011 (a television advert for Youth Code serum is found not to exaggerate the efficacy of the products)

3. Rodial Ltd, 7 December 2011 (Product claims and testimonials about cosmetic products are found not to be substantiated)

   COMPUTERS AND TELECOMS

4. Phones 4 U Ltd, 21 December 2011 (adverts featuring a ghost like little girl were found not to be offensive, despite having received over 600 complaints)

5. Virgin Media Ltd, 7 December 2011 (A complaint that the terms and conditions of an offer were not made clear was not upheld on the basis that significant conditions were presented in suitably prominent on-screen text)

6. British Sky Broadcasting Ltd, 14 December 2011 (A complaint from Virgin Media concerning adverts for Sky Anytime+ was upheld)

   ENERGY

7. Solar Twin, 14 December 2011 (claims to "Zero carbon" are found likely to be interpreted by consumers to mean emits no carbon)

8. Shell International Ltd, 14 December 2011 (Complaints that claims from Shell that their biofuels are one of the most effective ways of reducing CO2 from cars and trucks were misleading were not upheld)

   FASHION

9. Chandler's Hair Ltd, 21 December 2011 (Complaints were made about the images of two models in an advert for a hair salon on the basis that the model looked too thin)

   FOOD & DRINK

10. Tesco Stores Ltd, 14 December 2011 (A claim that lettuces went "from farm to store within 24 hours" was found to be unsubstantiated)

    HOUSEHOLD

11. Vax Ltd, 21 December 2011 (The ASA considered whether a product could claim to be "designed by an iconic British company" when it was manufactured outside the UK)

12. Everest Ltd, 14 December 201 (The ASA considered whether claims to an offer finishing on a particular date were misleading when a similar offer continued after that date)

13. Argos Ltd, 7 December 2011 (The availability of a product during a promotional period was considered unacceptable)

14. Specsavers Optical Group Ltd, 21 December 2011 (The ASA did not uphold a complaint on the basis that, when dealing with nationwide chain stores, it was not necessary to state exactly which stores had been used for price comparisons)

15. Homeserve Membership Ltd, 14 December 2011 (The ASA upheld a complaint that a direct mailing offering water supply pipe cover could cause undue distress, especially towards the elderly and vulnerable)

    LEISURE

16. Ebuyer (UK) Ltd, 7 December 2011 (When including customer reviews it is important to include a range of reviews, not just positive ones. Star ratings should have an appropriate basis)

17. Warner Bros. Entertainment UK Ltd, 7 December 2011 (A poster showing a skull being shattered by steel rods was considered unsuitable for use in an untargeted medium)

18. MyCityDeal Ltd t/a Groupon UK, 7 December 2011 (Groupon is caught out once again and this time the OFT gets involved)

19. Yoga Alliance UK Ltd, 14 December 2011 (the claim "setting standards for yoga" above a union jack flag was found to misleadingly imply that the advertiser was a standard setting body for yoga in the UK)

20. Merida Bicycles Ltd, 21 December 2011 (Complaints about efficacy claims of a cycle helmet endorsed by James Cracknell were not upheld because the claims were deemed to be substantiated)

    TRAVEL & TOURISM

21. Israeli Government Tourist Office, 21 December 2011 (Various claims made about Israel were accepted as not being likely to cause widespread offence)

    COSMETICS

1. Spire Healthcare Ltd, 7 December 2011

   A poster advert for breast enhancement surgery in the style of a magazine cover featured a woman in a strapless top and text stated "Boob jobs", "more affordable than you may think", "same day surgery" and "get more, pay less".

   Complaint/Decision

   Ten complainants challenged whether the advert was irresponsible because it trivialised cosmetic surgery; offensive because it was demeaning to women, portrayed women as sex objects and implied large breast were necessary to be attractive; and unsuitable to appear in an untargeted medium such as posters which could be seen by children.

   The ASA upheld the first and third complaints, but not the complaint that the advert portrayed women as sex objects. In relation to the first complaint, the ASA found that, although the advert included the phrase, "prior to surgery patients must attend hospital for two separate appointments with a consultant plastic surgeon and a nurse" in small print at the bottom, they considered this text was not prominent enough to significantly modify the overall impression created by the more prominent "Same day surgery" text, which implied that serious surgery was a straightforward financial transaction, and emphasised the speed of treatment.

   In relation to the third complaint, the ASA acknowledged that the target demographic for the advert was women aged 18 – 25 and that the adverts were displayed during the Edinburgh Fringe Festival on public transport because the advertiser believed the target group would use public transport then. However, the ASA took the view that the posters were an untargeted and uncontrolled medium and that the image of the large breasts, together with the text "more affordable than you may think", all in the style of a glossy magazine, conveyed the message that breast surgery was a "straightforward and risk-free lifestyle decision". Because the advert was in an untargeted medium, likely to be seen by children, the ASA considered that it was not socially responsible.

   This is another example of a situation when the ASA has concluded that the use of a poster advertisement is not the appropriate medium for advertisement of a product unsuitable for children, particularly when the advert is stylised in a way that may attract the attention of children or in this case, may trivialise the cosmetic surgery offered. See in particular the ASA's statement on sexual imagery in outdoor advertising and our comments on this in relation to the ASA's recent adjudication against Unilever UK Limited.

   This also takes a similar approach to last month's adjudicaton against Groupon which concerned trivialising the decision to undergo cosmetic surgery and not placing sufficient emphasis on prior consultations with medical practitioners.

2. L'Oreal (UK) Ltd, 14 December 2011

   This adjudication concerned a television advert for a facial moisturiser and serum. The advert showed a young woman, who had been digitally altered to appear older, moving through an on-screen graphic effect and becoming young again. The text on-screen stated "Fantasy Scene". The voice-over stated "No moisturiser can make you grow young, but you can reawaken skin's youthfulness day after day. Inspired by gene science, Youth Code Serum and Day Cream from L'Oreal Paris for a super charged boost of hydration....Skin looks smoother, more youthful, more luminous....Skin looks rested..."

   Complaint/Decision

   Three viewers challenged whether the advert misleadingly exaggerated the efficacy of the products, in particular the transformation of the model from older to younger in the advert.

   The complaint was not upheld. L'Oreal explained that the statement "no moisturiser can make you grow young" was a clear statement that no product, including their product, could make you grow young. The imagery was intended to dramatise this statement, not to demonstrate product efficacy. The qualifying text "fantasy scene" emphasised this. The ASA agreed with L'Oreal's assertion that consumers would understand the transformation scene to be fantastical and would not interpret it to literally mean that the products would make them look younger. L'Oreal provided evidence of tests where female participants had rated the creams positively against parameters relating to youthfulness, smoothness and luminosity of skin. This evidence was enough to satisfy the ASA that the claims had been substantiated and the advert was not misleading.

   This shows how cosmetic...