ASA Adjudications Snapshot - February 2010

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

This month, the ASA gave particular consideration to whether or not advertisers may use distressing and/ or offensive materials in their ads, in order to make them more effective. Also notable was the ASA's commentary on what constitutes a "free trial", the use of "token collect" schemes, and the offensiveness of an ad which suggests the assisted suicide of a pepperami sausage.

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

This month, the ASA gave particular consideration to whether or not advertisers may use distressing and/ or offensive materials in their ads, in order to make them more effective. Also notable was the ASA's commentary on what constitutes a "free trial", the use of "token collect" schemes, and the offensiveness of an ad which suggests the assisted suicide of a pepperami sausage.

HEALTH AND BEAUTY

1. BHH Technologies Pty Ltd t/a Nude by Nature, 3 February 2010 ("free trial" terms and conditions)

2. Ferring Pharmaceuticals Limited, 17 February 2010 ("offensive and demeaning" internet ad showing young bedwetter targeted at healthcare professionals)

3. Sasaki International Ltd, 17 February 2010 ("lose a dress size in three weeks" claim)

4. Dabs.com, 24 February 2010 (advertising of products in brochure where prices are subject to constant fluctuation)

5. Virgin Media Ltd, 24 February 2010 (implied claims about competitor's product through subtle wording)

   FOOD AND DRINK

6. Unilever UK Ltd, 17 February 2010 ("ridiculous" ad involving assisted suicide of a cartoon pepperami targeted at advertising industry)

   FINANCIAL

7. Loyalty Management UK Ltd t/a Nectar, 24 February 2010 (discrepancy between image of product shown on sales promotion and product sent to customers)

   OTHER

8. ITV 3 Ltd, 17 February 2010 (loudness of adverts should be influenced by context/ mood of surrounding programme)

9. No Added Sugar Ltd, 24 February 2010 (ad showing children near plastic bags deemed unsafe)

10. Associated Newspapers Ltd t/a The Mail on Sunday, 3 February 2010 ("free" claim in context of token collect scheme)

11. People for the Ethical Treatment of Animals (PETA) Foundation, 3 February 2010 (image of murderer/rapist used in relation to claim about cruelty to animals)

12. Autoglass Ltd, 10 February 2010 (importance of qualifying statements in advertising products)

    HEALTH AND BEAUTY

1. Ferring Pharmaceuticals Limited, 17 February 2010

   A moving internet banner ad on the British Medical Journal "Learning" website showed a young boy looking miserable next to the headline "WHO'S A STINKY, STUPID, BABY BEDWETTER?" The next frame showed the young boy smiling next to text which stated "MELT AWAY THE MISERY OF BEDWETTING WITH DESMOMELT".

   Complaint/ decision

   The complainant, a doctor, objected that the ad was offensive and demeaning to patients who suffered from this condition.

   Ferring argued that, as the ad was specifically targeted at healthcare professionals (i.e. on medical professional websites or journals), and, as such, only informed and experienced medical professionals would be able to view the ad, it could not be considered offensive or demeaning to patients, or to the general public. Although Ferring admitted that the ad was indeed "shocking", they also claimed that other measures had been implemented, such as requiring users to register on the site to see the ad, which mitigated the likelihood that it would be seen by the general public.

   The ASA examined whether or not the general public would be able to access the information and concluded that, although the ad was available to view on a page of the site which did not require users to register (despite Ferring's claims to the contrary), the site on which it appeared was sufficiently specialised so as to prevent the wider public from seeing it, and, on this basis, did not uphold the complaint.

   This adjudication is an interesting example of the ASA's consideration of targeted ads and the media in which they appear. Had the ad been widely available to the public, the complaint would have been likely to have been upheld.

2. Sasaki International Ltd, 17 February 2010

   A leaflet for a 'Flabelos' exercise machine made various health-benefit claims, such as, "lose a dress size in 3 weeks", and, "Toning", "Burn Fat", "Anti-Aging" and "Reduce Cellulite, Increase Flexibility, Improve Circulation, Increase Bone Density, Improve Varicose Veins and Minimise Lower Back Pain".

   Complaint/ decision

   The competitor complainant, Power Plate, challenged various claims made in the ad on the basis that they could not be substantiated. Notably, one of the complaints was that the claim "lose a dress size in 3 weeks" was in contravention of various sections of the CAP Code, by virtue of the fact that the claim made a specified weight loss claim from a particular part of the body in a specified period.

   The ASA, unsurprisingly, upheld all of the complainant's objections, due to the fact that Sasaki was unable to substantiate the claims.

   However, what was interesting about the ASA's decision, and what will no doubt be welcomed by other advertisers who commonly claim that the use of their product can lead to individuals "losing a dress size", was the ASA's confirmation that the claim does not constitute a breach of the CAP Code by virtue of the fact that the claim related to weight being lost from a specific body part. Instead, the ASA explained, a person's dress size depends on various "height, body shape and...