Wednesday, 19 August 2009

The strange case of the toothless ASA and our lying cheating advertisers (and i don't just mean “the dodgy companies”)

I have been following the ASA adjuication feed for a while now. This ists all the decisions made about advertising complains and what action (if any) is taken against infringers. It all came about as a result of Tangogate which I am still awaiting the verdict on. You can read about that HERE and HERE.

It has lead me to the following conclusion. All advertisers blatantly flaunt the rules because they ca and there is no real punishment for doing so. Lets have a look at some adjudications shall we?

skype_logo

Ad
A TV ad, for Skype Voice over Internet Protocol (VOIP) software, showed a new father talking to his parents via a webcam.  At one point, he moved his laptop so that they could see his partner and newborn baby.
Issue
Five viewers challenged whether the ad misleadingly exaggerated the sound and picture quality that could be achieved by using Skype.

The verdict?

Assessment
Upheld
The ASA noted the ad did not depict a real time Skype video call but noted the Code did not prevent the use of techniques to overcome technical problems in filming TV ads. 

The ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1 and 5.1.2 (Misleading advertising), 5.2.2 (Implications) but did not breach rule 5.4.1 (Visual techniques and special effects).

The punishment?

Action
The ad must not be broadcast again in its current form. 

But Skype have ALREADY mislead all those viewers. They can do it again if they use an altered ad.

Skype. R @ R contends that you are dirty LIARS

logo

Ad
A press ad for a supplement consisted of a full page in the Daily Express. The top half of the page was in the form of an article about the product, Goldshield's Rozip. The bottom half of the page showed a man and a woman smiling next to a rosehip plant and a box of the product. An order form appeared next to that. The top half of the page stated "ANYONE who suffers with joint pain as a symptom of arthritis will know how debilitating this can be and how hard it is to treat effectively with conventional medicines. However, there are supplements on the market that do not require a prescription and which many sufferers claim have brought them some relief. One compound that appears to offer effective pain relief is rosehip, the fruit of the rose bush, which, according to research, can help alleviate joint pain in patients with knee, hip and hand osteoarthritis without any side-effects. Rosehip contains an anti-inflammatory active ingredient called GOPO, which experts now believe can help to keep joints lubricated and pain-free, offering hope to millions of people who suffer from painful joints due to arthritis and related conditions but want to maintain an active life." The ad went on to describe a clinical trial which it said showed that "the powdered rosehip supplements were nearly three times more effective at reducing pain than paracetamol". Further text stated "Goldshield ROZIP is a specially formulated supplement containing a pure source of rosehip extract that can help maintain joint health effectively ... INFORMATION www.goldshield.co.uk". The bottom half of the page was headlined "HEALTH AND LIFESTYLE STAR BUY. Rose Hip Vegecaps. You may have read recently about the remarkable properties of Rosehip... Now you can experience the benefits in these easy to swallow vegecaps ... Goldshield's Rozip is a specially formulated supplement ... A traditional remedy (suitable for vegetarians) ... One pack of 60 vegecaps is JUST £8.95."  The order form was headlined "60 vegecaps only £8.95, 180 Vegecaps only £20.95.". Text at the top of the entire page stated "To advertise in this section O8 XXXXXX

Issue
1. Biocalth (UK) Ltd challenged the reference to arthritis in the ad, which they believed was a medical condition for which medical advice should be sought.
The ASA challenged whether:
2.  the advertisers could substantiate the claim that Goldshield's Rozip could relieve joint pain;
3. the claim "Rosehip contains an anti-inflammatory active ingredient called GOPO, which experts now believe can help keep joints lubricated and pain free, offering hope to millions of people who suffer from painful joints due to arthritis and related conditions... Goldshield ROZIP is a specially formulated supplement containing a pure source of rosehip extract" was a medicinal claim that required a marketing authorisation from the Medicines and Healthcare products Regulatory Agency;
4. it was sufficiently clear that the ad was a marketing communication.

The Verdict?

1., 2. & 3. Upheld
We reminded Goldshield that consumers should not be discouraged from seeking essential medical treatment and that they should not offer specific advice on, diagnosis of or treatment for serious or prolonged conditions, such as arthritis, unless it was conducted under the supervision of a doctor or other suitably qualified health professional. We reminded them that medicinal claims for health products should not be made unless marketers held an appropriate marketing authorisation from the Medicines and Healthcare products Regulatory Agency, and that marketers should hold scientific evidence for any claim that their vitamin or mineral product or other food supplement was beneficial to health.
On these points the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 50.1, 50.3 (Health and beauty products and therapies), 50.11 (Medicines) and 50.20 and 50.21 (Vitamins, minerals and other food supplements).
4. Upheld
Because we considered the entire page constituted a marketing communication and was subject to the Code we concluded the ad should have included the words "advertisement feature" or similar, clearly displayed at the top of the page. We concluded that, because it did not, the ad was likely to mislead on those grounds

Guess what?

Action
The ad must not appear again in its current form.

In the Expresses defense the claims are made by Goldshield not the Express BUT they do publish it as an article and to that end Daily Express, you are LIARS

experian

Ad
A TV ad for CreditExpert showed newspapers being placed on a kitchen worktop.  Headlines on the newspapers stated "Spend on hold for UK adults" and "Household finances worry millions."  The journalist and TV presenter Michael Buerk repeated the headlines in voice-over.  He then spoke to camera: "Managing our money now is even more important.  That's why you should check your Experian credit report.  It shows your credit commitments and how you're coping."  CreditExpert's website address was shown at the bottom of the screen.  The ad then showed a laptop screen which stated "CreditExpert from Experian (R) - 30-day FREE trial."  A box on the laptop screen stated "Get your FREE report."  Further voice-over by Michael Buerk stated "Take a 30-day trial at [a website address followed] and see your Experian credit report - free.  And if it needs improving, then there's advice on how to do it."  The laptop screen changed to state "Welcome to CreditExpert - A summary of your credit report" followed by entries that it was not possible to read.  The ad ended with a full screen containing large text which stated "CreditExpert from Experian (R)."  Text in a box stated "FREE 30-day trial."  CreditExpert's website address was shown underneath.  Further voice over by Michael Buerk stated "Take control of your finances with ..." [CreditExpert's website address followed].
Issue
Three viewers challenged whether the claim that the trial was free was misleading because, while they needed to register for the trial online with their credit card details, they needed to contact CreditExpert by telephone before the end of the trial to avoid being charged for subsequent months.

The verdict (it wont surprise you)

Upheld
The ASA noted the points made by CreditExpert and Clearcast.  We acknowledged that, whether or not they decided to stay with CreditExpert after the trial period, customers were not charged for the period of the trial itself.  We considered, however, that the need to take action to avoid being charged when the trial period was over was likely to be an important factor in someone's decision to take up the offer in the first place.  We noted, in particular, that the TV Code required that "Advertising must make clear the extent of the consumer's liability for any costs" and that all important limitations and qualifications must be made clear.  We considered that, in the context in which the offer for the free trial was made in this ad, the need to take action to avoid being charged when the trial ended should have been flagged in the ad.  Because the ad did not state the need to take action to avoid being charged after the trial ended, we concluded that it was misleading.

And the (in)action?

Action
The ad must not be broadcast again in its current form.

So lie all you want motherfuckers but do it in a different form! My action is different and it is simply to out Experian (and they refer to this ad on their website to add insult!) and brand them as the dirty stinking LIARS that they are.

But this CANT be endemic surely. I mean Tescos and Morrisons for example run those basket comparison campaigns. They must be trust worthy?

logo (1)

Ad A national press ad, for Morrisons supermarket, was headlined "Trolley loads of savings at Morrisons - see for yourself  PRICE CRUNCH"; text underneath stated "Save money every day thanks to hundreds of great offers at Morrisons".  Underneath was a trolley full of goods with four flags in it; the largest flag stated "£30.82 at Morrisons", the other flags stated "£50.30 at Asda", "£57.47 at Tesco" and "£54.73 at Sainsburys".  Next to the trolley was a Morrisons receipt for 31 goods.  Small print at the bottom of the ad stated "... Available in most stores.  Subject to availability.  While stocks last.  Prices/offers may vary in Gibraltar.  Prices checked between Monday 12th and Tuesday 13th January in Asda Peterhead, Morley, Walderslade, Retford, Caerphilly, Hinckley and Pudsey.  Sainsbury's Bradford, Bolton Atlas Mills, Kettering, Portobello, Gloucester Abbeydale, Starbeck and Letchworth.  Tesco Bradford, Tynemouth, Dereham, Wishaw, St Helens, Yate and Bognor.  Comparison includes promotions (excludes multibuys).  Where pack weights vary between retailers the prices have been calculated pro rata."
Issue
Asda Stores Ltd (Asda) objected that the comparison was misleading, because:
1. the goods selected for comparison were not representative of a typical shopping basket;
2. it compared promotional prices against non-promotional prices.

Verdict?

Assessment
1. Upheld
The ASA noted the ad was not intended as a typical shop but rather a list of items that could be bought for less at Morrisons.  We acknowledged that the receipt shown made clear the items the comparison was based on and that the text  "hundreds of great offers at Morrisons", and "100s OF OFFERS IN STORE THIS MONTH", also made clear that they were items on promotion for that month.  We acknowledged Morrisons claims about the perceptions of the respondents to their survey but considered the overall impression of the ad was ambiguous. Taking into account the image of goods in a trolley and text that stated consumers could save money "every day", we considered that, on balance, the overall impression was that Morrisons were generally cheaper than the three named competitors.  We considered that consumers would therefore expect the trolley to be based on items they would typically purchase in one shop rather than on items that were part of short-term promotions.  We considered that the goods selected were clearly not representative of a typical shop and the comparison was not based on a fair and representative sample of goods.  We concluded that the ad was misleading.  
On this point, the ad breached CAP Code clauses 7.1 and 7.2 (Truthfulness) and 18.1 and 18.3 (Comparisons with identified competitors and/or their products).
2. Upheld
We noted the small print stated "Comparison includes promotions" and considered that the ad made clear it included Morrisons' offers.  However, we considered that it was not clear about whether it included the promotional prices of its competitors; it did not convey that most of the goods available from the three competitors were not on promotion.  
We again noted Morrisons claims about the views of the respondents to their survey but considered that the disclaimer did not go far enough to remove the overall impression of the ad, in particular given by the text "Save money every day ... ", that Morrisons was generally cheaper than their competitors.  We also considered that it did not explain adequately to consumers that the stated savings were a result of a comparison between Morrisons' promotional prices and their competitors' every day non-promotional prices; the stated savings could therefore be achieved only for a limited time and were not representative of the savings consumers could generally expect from a typical shop in Morrisons.  Because the ad did not make sufficiently clear that the comparison was between Morrisons' promotional prices, which were available only for a limited time and were not representative of the savings achievable in a typical shop, and their competitors'  every day non-promotional prices, we concluded that the ad was misleading.

And what wasn’t done about it?

Action
The ad must not appear again in its current form.  We told Morrisons to make clear in future when comparisons involving their promotional prices were made against competitors every day prices.  We also told them not to imply that advertised savings were representative of a typical shop if that was not the case.

Well Tescos then? Deep breath!

tesco

Ad
National press and TV ads by Tesco promoted a price comparison between products in their stores and in Asda supermarkets.
The TV ad (a) showed a sequence of animated products. A female voice-over stated "Asda always say they're cheaper on lots of branded products, but there are things that they don't include, like own brand milk and eggs, meat, and fresh fruit and veg." The on-screen text stated "Based on a sample of 218,445 Clubcard transactions instore 02/01 comparing Asda prices online 02/01. Closest match applied. Includes promotions. Excludes multibuys, non-matches, Express, selected Metro. See www.tesco.com".
The voice-over continued "That's why at Tesco we compare prices on the things our customers buy." A series of blue animated shopping baskets were shown forming a tower. Text in a red circle next to the shopping baskets stated "1,187,00 baskets cheaper." The voice-over continued "And last Friday over 1.1 million customer's baskets were cheaper at Tesco, and Asda? Well, judge for yourself." A series of green animated shopping baskets formed a smaller tower next to the blue baskets. Text next to the green basket stated "645,000 baskets cheaper". The voice-over stated "Real baskets at Tesco, every little helps."
The press ad (b) was headed "Real Basket Results" and showed two towers of shopping baskets. The taller tower was labelled "Tesco". A circle of text next to the Tesco baskets stated "1,187,000 baskets cheaper". Text next to the smaller, Asda basket tower stated "645,000 baskets cheaper". The body copy sated "Last Friday we compared prices on the things our customers actually bought and found that over 1,187,000 customer's baskets were cheaper at Tesco than they would have been at Asda. Plus they will all save money with a Clubcard." The footnote stated "Based on a sample of 215,445 Clubcard transactions in store 02/01/09 compared with prices at Asda, Exact figures are Tesco cheaper 1,187,030 baskets, Asda cheaper 644180 baskets. Closest match applied. Includes promotions. Excludes multibuys, non matches. Express and selected Metro. Asda prices checked online 02/01/09. Clubcard points awarded quarterly. Minimum clubcard spend £1.
Issue
Asda Stores Ltd (Asda) challenged:
1. whether the comparison in ads (a) and (b) was "like for like" because they believed it included some products that were of different size, some that were of different quality and also branded versus own label products;   
2. whether the ads were misleading because the small print stated "closest match applied" but that the ads did not make clear the differences between those products;
3. whether Clubcard promotional offers available on 2 January 2009 affected the results of the comparison in favour of Tesco;
4. whether the ads misleadingly implied a total of 1,832,000 Clubcard transactions had been compared when the small print stated that 218,455 Clubcard transactions had been sampled;
5. whether the TV ad misleadingly implied Asda had never made comparisons involving their own brand products and
6. whether the TV ad was denigratory because it implied Asda had intentionally sought to mislead consumers by not including certain products in the comparisons.
Asda and one member of the public challenged whether:
7. the comparison was "like for like" because they believed it included comparisons of Tesco's promotional prices with Asda's everyday prices and  
8. the comparison excluded certain branded and own-label products that were cheaper at Asda.

Verdict?

Assessment
1. & 2. Upheld
The ASA noted that comparisons did not always have to be like for like in every aspect to ensure they were not misleading.  We considered a primary consideration in a comparison of this nature, which claimed to compare a huge number of "real baskets", was that enough information was provided in the ad for the consumer to understand how the comparison was made, and therefore determine its usefulness to them.  Without that information, we considered viewers and readers would not be able to make an informed choice about the overall claim.
We reviewed the list of 12,360 matched products sent by Tesco.  We noted they had compared some own brand products at Asda with branded products at Tesco, and some branded products at Asda with own brand products at Tesco.  In the context of this large scale general price comparison, we considered that comparing branded products with non-branded products was acceptable because those products made up only a very small fraction of the total number compared, had been matched as closely as possible and, crucially, had not given Tesco an unfair price advantage.
We noted they had compared 585 products that differed in pack size between 10% and 50% by calculating an equivalent price for the different pack size.  We noted that, in the context of this large scale general price comparison, where Tesco had calculated an equivalent price to compare products where the difference in size was between 10% and 50%, they had shown that it had not given them an unfair price advantage. Where the difference in size was 10% or less, we considered the products compared were sufficiently similar to be classed as like sizes.
However, although we considered those two aspects of the comparison did not give Tesco an unfair price advantage, we considered the text "closest match applied" in both ads was not sufficient to make clear the differences between the products, particularly because by applying a conversion factor to a larger product so that it was comparable with a smaller product (or vice versa), Tesco were using as the basis for their comparison a notional price for a product that was not available to the consumer.  
We considered that a comparison between non-identical products that did not give an unfair advantage could be acceptable in a clear comparison of a small number of products but because the basis of the comparison could not be explained clearly in a large scale comparison the ads were likely to mislead.
Because the press ad referred to "Real Basket Results" and the TV ad referred to "Real baskets at Tesco", but they did not set out all the variables on which the comparison was based, we considered they did not give consumers enough information to be able to make an informed choice about whether or not the comparison was useful for them, and the ads were therefore misleading.   
On this point ad (a) breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1 and 5.1.3 (Misleading advertising), 5.2.1 (Evidence), 5.2.3 (Qualifications), 5.4.3 and 5.4.6 (Comparative advertising).
Ad (b) breached CAP Code clauses 3.1 (Substantiation), 7.1 and 7.2 (Truthfulness) and 18.1, 18.2 and 18.3 (Comparisons).
4. Upheld
We considered that consumers would understand the claims "645,000 baskets cheaper" and "1,187,000 baskets cheaper", combined with the claim "Last Friday, we compared prices on the things our customers actually bought and found that 1,187,000 customer's baskets were cheaper at Tesco", to mean Tesco had compared the number of baskets cited.  Although we noted the footnote in the press ad and the on-screen text in the TV ad set out the actual number of baskets compared, we nonetheless considered readers and viewers would understand that the number of baskets quoted prominently was the same as the number of baskets compared.  They would inevitably set more store by a claim based on a comparison of close to two million baskets than one based on a comparison of a tenth of that number.  We concluded that the ads were misleading for that reason.
Furthermore, because both ads referred to "Real Baskets", we considered consumers would expect the comparison to incorporate all or most of the contents of each basket.  However, having reviewed the contents of the baskets, we noted that in some cases an equivalent product could not be found for as many as half the items in the basket, despite some of those products being commonly bought branded items, such as pre-packaged vegetables, shampoo and bread.  We did not consider that the disclaimer "excludes non-matches" made clear the extent of the exclusions.
Because the difference in the amount paid for a basket at Tesco and a basket at Asda was often very small, we considered that the exclusion of a number of items in each basket meant it was not possible to determine whether or not the overall claim for the number of baskets were cheaper at Tesco was accurate.  We concluded that the ads were misleading for that reason too.
On this point ad (a) breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1 and 5.1.3 (Misleading advertising), 5.2.1 (Evidence), 5.2.3 (Qualifications) and 5.4.6 (Comparative advertising).
Ad (b) breached CAP Code clauses 3.1 (Substantiation), 7.1 and 7.2 (Truthfulness) and 18.1, 18.2 and 18.3 (Comparisons).
7. Upheld
We considered that a comparison between products on promotion and products not on promotion was acceptable in principle so long as the advertiser: did not have a disproportionately large number of products on promotion on the day the sample was taken; could show that the item the product on promotion was compared with was the cheapest comparable product; and the ad itself made clear that it included products on promotion.  
Although both ads stated "Includes promotions", Tesco did not send evidence to show what products were on promotion in their stores on the day the sample of baskets was taken, nor did they send evidence to show what products were on promotion at Asda.  Because it was not possible to tell whether or not Tesco had a disproportionately large number of promotional offers available on that day, or whether the products they had on promotion were compared with the cheapest comparable product at Asda, we concluded the ads were misleading for that reason.
On this point we ad (a) breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1 and 5.1.3 (Misleading advertising), 5.2.1 (Evidence) and 5.4.6 (Comparative advertising).
Ad (b) breached CAP Code clauses 3.1 (Substantiation), 7.1 and 7.2 (Truthfulness) and 18.1, 18.2 and 18.3 (Comparisons).

Well OK then. With Asda flinging all this mud SURELY they must be telling the truth?

asda-350

Ad
a. A national press ad for Asda showed a large arrow pointing to a smaller arrow.  Text inside the large arrow stated "Asda 2916 products cheaper."  Text inside the smaller arrow stated "Tesco 962 products cheaper."  A large box below the arrows stated "Yep, we've done it again.  The independent price checker says so.  ASDA."  Smaller text underneath the large box stated "This week, independent comparison site mySupermarket.co.uk checked prices for all 7564 same brand/size products on both Tesco and Asda websites - there's no place like ASDA."
b. A TV ad began with a caption at the bottom of the screen that stated "mySupermarket.co.uk.  PRICES CHECKED 18/02/08."  The ad then showed large and small arrows similar to those in the press ad.  Text inside the smaller arrow stated "Tesco 962 products cheaper."  Text inside the larger arrow stated "Asda 2916 products cheaper."  Voice-over stated "This week, independent price checker mySupermarket.co.uk found that Tesco were cheaper on 962 products.  Not bad until you discover that the same independent price checker found Asda were cheaper on more than three times as many.  Asda.  Why pay more?"  Large text in the centre of the screen stated "ASDA.  WHY PAY MORE?"
Issue
Tesco challenged whether:
1. the press ad and
2. the TV ad were misleading because they believed the prices mySupermarket.co.uk had used for the purposes of the comparison were lower in many cases than the prices charged in Asda stores or to online shoppers.
Tesco also challenged whether:
3.  the press ad and
4.  the TV ad were misleading for suggesting that the comparative figures were accurate for an entire week when that was not the case.

The verdict?

Assessment
1. & 2. Upheld
The ASA noted that the ads identified the name of the independent company that had made the price checks and stated that the company had checked Asda and Tescos' website prices and used them for the basis of the claim. We noted Asda's statement that they operated a national pricing policy; that prices on their website were identical to their in-store prices and that ads before and after the investigated ad contained what Asda described as a standard disclaimer that online prices might vary from those in-store in case of error. We also noted their response that it was possible some shelf-edge labels might continue to show the previous, higher price but customers at the till would be charged the new, lower price. We noted that neither Asda nor Tesco had provided till receipts or similarly definitive proof that showed the prices charged when the products were purchased in-store, but that Tesco had supplied data, also compiled by an independent company, that compared prices by scanning shelf bar codes. According to that data, approximately 100 products cited as being cheaper at Asda were cheaper at Tesco, and approximately 50 further products cited as being cheaper at Asda were priced equally at Tesco.
We considered that, although the ads made it clear that the claim was based on a comparison of website prices, customers were likely to expect to be able to obtain those savings whether shopping in-store or online. In light of the data Tesco supplied, and in the absence of till receipt evidence (or similar), we considered Asda's evidence did not conclusively prove the specific claim that 2,916 products were cheaper at Asda than they were at Tesco. We concluded that the claim was not substantiated and that the ads were misleading.
On point 1 the press ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) 18.1 and 18.3 (Comparative claims) and 19.1 (Other comparisons).
On point 2 the TV ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.1 (Evidence) and 5.4.6 (Comparative advertising).
3. Upheld
We noted that the date the prices were checked was omitted from the press ad due to an error and welcomed Asda's assurance that that error would be rectified in future press ads. We also noted that Asda had provided price comparison data for the three days that followed the price check, which they believed showed Asda's prices were lower than Tesco's for those days also. For the reasons stated in 1 and 2 above, however, we did not consider Asda had shown that the pricing information they had used for the comparison was accurate. In the absence of data to show when the price checks took place, we considered the ad suggested the claim was valid for the entire time it appeared, but that Asda had not demonstrated that was the case. We therefore concluded that the ad was misleading.
On this point the press ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1 and 18.3 (Comparative claims) and 19.1 (Other comparisons).

What to do?

Action
The press ad must not appear again in its current form. We told Asda to remove it and to ensure they held suitable evidence before making price comparisons in future. We told them to consult the CAP Copy Advice team before publishing any future comparative ads.
The TV ad must not be broadcast again in its current form.

Right. So to sum up Asda, Tesco and Morrisons you are all LIARS

So my conclusion? Never believe anything anyone ever tells you. All companies lie to some degree and some to a huge degree. LIARS LIARS LIARS LIARS LIARS LIARS LIARS LIARS LIARS LIARS LIARS .

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