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Virgin’s service email to customer who had opted out of marketing communications broke CAP Code

Mark Weston — Mon, 16 Aug 2010 14:09:51 +0000

Virgin Media breached the CAP Code by emailing a customer who had opted-out of marketing communications with details of other aspects of the service that the customer may be missing out on. Virgin argued that the email had been sent to inform the customer that Virgin Mobile had become part of the Virgin Media group, but the Advertising Standards Authority disagreed and said that it was really a marketing communication. It did not just include information about the change, but went further and described prizes and referred to exclusive deals.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: ‘This is a tricky one for businesses. It is possible under the Data Protection Act to inform customers who have opted-out of marketing communications, as part of normal contact with them, of a change of service or even a new aspect of the service that they may not otherwise be aware of. But specifically promoting to them or telling them what they are missing is not permitted. It can be a very fine line and a grey area, as this case has shown.’

ASA tells brand not to use misleading ‘manufactured by leading British manufacturer’ claim in its ads

Paul Gershlick — Fri, 16 Jul 2010 11:46:55 +0000

The Advertising Standards Authority has upheld a complaint against the following: ‘Manufactured by a leading British manufacturer, Tootal’. Tootal was a brand that was not the manufacturer. It was not clear where the goods were actually manufactured, but Tootal did not make the goods in Britain. The ASA acknowledged that Tootal was a registered UK company , but because the advert referred specifically to a ‘British manufacturer’, people would assume from that that the goods were made in the UK. As that was not the case, the advert was likely to mislead and the ASA ordered that it would not be repeated.

The ad breached the CAP Code. The CAP Code is a code of practice governing the content of adverts and marketing communications, and it is administered by the ASA. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space.

ASA to consider charging to consider complaints

Mark Weston — Tue, 06 Jul 2010 18:15:20 +0000

The Advertising Standards Authority is considering requiring people to pay a fee if they want the ASA to consider complaints about their competitors. As yet, it is unclear how much the charges would be and in what circumstances. This will become apparent when the ASA reveals its plans, probably in 2011. It is thought that the only charge will be from competitors rather than from consumer complainants, although Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, questions: ‘How will the ASA be able to identify whether a complaint is made by someone genuinely acting as a consumer, or by someone claiming to be a consumer even though they were asked to complain by a corporate whom they represent?’

The ASA administers the CAP Code. The CAP Code is a code of practice governing the content of adverts and marketing communications. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space. A new CAP Code is due to come into force on 1 September.

Direct mailshot appearing to be torn magazine page with personal post-it note misleading

Mark Weston — Wed, 21 Apr 2010 20:33:17 +0000

A direct mailing appearing to be a torn magazine page with a personal handwritten post-it note was misleading, according to a ruling from the Advertising Standards Authority. The note said ‘Hi. I saw this and thought you’d find it useful – he’s really good! J.’ and was sent in a plain envelope appearing to have been delivered by hand. The page was also formatted and written as if it had been by an objective reporter, and it contained claims that Chris Cardell had helped thousands of struggling businesses to experience dramatic turnarounds and grow. In addition, the mailshot contained a photograph of Chris Cardell with Duncan Banatyne, from the BBC’s Dragons Den.

The ASA ruled that the advertising was misleading because it did not make clear that it was a marketing communication and used techniques which gave the opposite impression. The claims about the purported success of the business were also not substantiated. A third claim about the photograph with Mr Banatyne was deemed not to have been misleading because it did not suggest that he had endorsed Mr Cardell – instead, only that they were at the same event.

Accordingly, Mr Cardell had breached the CAP Code on two counts, and he was warned not to use the advert again in its current form. The CAP Code is a code of practice governing the content of adverts and marketing communications, and it is administered by the ASA. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space. A new CAP Code will come into force on 1 September.

New Codes of Practice for advertising

Paul Gershlick — Thu, 25 Mar 2010 14:07:26 +0000

BCAP (the Committee of Advertising Practice Broadcast Committee) and CAP (the Committee of Advertising Practice) are introducing new Codes of Practice regulating adverts. BCAP regulates the BCAP Code (which deals with broadcast adverts, ie on television and radio) and CAP regulates the CAP Code (which deals with non-broadcast adverts. Both Codes are enforced by the Advertising Standards Authority. Following a review, both Codes will come into force from 1 September 2010.

Amongst the changes are the following:

More consistency between the CAP Code and BCAP Code, such as for misleading advertising, harm and offence
The Codes are intended to be simple, user-friendly and joined-up.
Television and radio advertising need to have regard to social responsibility to the audience and society as a whole.
A prohibition on collecting data from under 12 year-old children without the consent of their parents or guardian. In addition, information cannot be collected from under 16 year-olds about other people.
Further clarification over how to use the word ‘free’.
A prohibition on advertisers from exaggerating any environmental benefits. Absolute claims of green credentials must be supported by a high level of substantiation. Meanwhile, comparable claims such as ‘greener’ or ‘friendlier’ must be justifiable on the basis of the total environmental impact over the previous range or the competitor’s product. The environmental claims must be measured over the full lifecycle of the product. As with other ads, the green qualities must not mislead.

Misleading Hovis ad not quite the best thing since sliced bread

Paul Gershlick — Tue, 02 Mar 2010 20:40:14 +0000

The Advertising Standard Agency has ruled that Premier Foods should stop using a misleading advert which stated that its Hovis brand had been voted Britain’s softest white bread. The claim was based on an independent survey of 200 people in November and December 2008. However, rival bakers complained that the advert was misleading. The ASA agreed. Even though Premier Foods had continued to carry out its own surveys following the independent 2008 survey, they did not hold the same weight as the independent one. Since the 2008 surveys had been conducted, the recipe in at least one of the breads had changed, and all the breads were using 2009 rather than 2008 flour, which may have affected the results if a further independent survey was carried out. The ASA said it could not be certain how people would have voted if there had been a subsequent survey.

In addition, the ASA objected to the fact that the survey had asked people to give the products a mark out of 10 and although Hovis’s average was higher it was not necessarily chosen preferred by more people.

Consequently, the ad breached the CAP Code. The CAP Code is a code of practice governing the content of adverts and marketing communications, and it is administered by the ASA. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space.

Dabs comes unstuck as ASA tells retailers not to publish prices in printed brochures if they change regularly

Mark Weston — Fri, 26 Feb 2010 18:29:41 +0000

The Advertising Standard Agency has rebuked Dabs, the online retailer, for advertising prices in its printed brochures that were not accurate. Dabs argued that its prices changed regularly and its printed brochure warned readers to ‘check www.dabs.com for latest prices’. However, the ASA said that that did not go far enough. It had not indicated that the prices in the advert regularly changed. The advert was therefore misleading, contrary to the CAP Code. The ASA went further and said that the printed brochure was unsuitable to advertise prices because it was likely to be in circulation after prices had changed.

Wheels fall off bike chain business’s ad campaign for wrongly suggesting endorsement of Olympic winner

Paul Gershlick — Wed, 10 Feb 2010 22:12:46 +0000

A bike chain manufacturer has been rebuked by the Advertising Standards Authority for misleading people into thinking that an Olympic medal winning cyclist had endorsed their products when she had not. KMC had an advert with a picture of Emma Johansson, which said that she had chosen their products. However, she had never consented to her image being used in this way and the ASA upheld a complaint that the advert was misleading for suggesting that she was endorsing their products. KMC said that the picture was genuine and Johansson’s cycling team was sponsored by KMC. Johansson herself, though, had not personally endorsed the products. She had not agreed for her image to be used. The ad therefore breached the CAP Code.

The CAP Code is a code of practice governing the content of adverts and marketing communications, and it is administered by the ASA. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space. The ASA here ruled that KMC must not use the advert again and should ensure it had people’s approval for products allegedly endorsed by them.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘This seems the correct result. It follows on from the Eddie Irvine case a few years ago which established image rights, when the racing driver was awarded £25,000 by the Court of Appeal after talkSPORT had featured his photo superimposed with a radio containing talkSPORT’s logo without his permission. This latest ruling shows that the ASA will also take action to stop the practice. In addition, it may now be possible for traders conducting misleading practices to be prosecuted under the Consumer Protection from Unfair Trading Regulations.’

Proposals to extend the CAP Code will give the ASA power to adjudicate on web site content…

Samantha Lloyd — Wed, 02 Dec 2009 16:45:23 +0000

The Advertising Standards Board of Finance has been working on plans to extend the current CAP Code to cover web site content which would bring statements made on web sites within the remit of the Advertising Standards Authority, the advertising watchdog. The CAP Code is a code of practice governing the content of adverts and marketing communications, and it is administered by the ASA. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space. Currently, the CAP Code specifically excludes web site content, except sales promotions and advertisements in paid-for space. This loophole means that whilst banner ads appearing on a web site are within the ASA’s jurisdiction, any promotions made by that advertiser on its own web site are not. The ASA already receives more than 2,000 complaints each year about web site content which it cannot deal with in the absence of the proposed new powers.

ASA rules fake invoice ad was misleading…

Paul Gershlick — Wed, 18 Nov 2009 16:55:50 +0000

The Advertising Standards Authority – the advertising watchdog – has ruled that a leaflet presented as a fake invoice for trade mark registrations was misleading. The leaflet, sent to businesses by Community Trade Marks & Designs, appeared to be an invoice for trade mark services. In fact it was simply an advertisement for CTMD’s services, but this was only made clear in the small print which stated: ‘This is not a bill. This is a solicitation…You are under no obligation to pay the amount stated underneath unless you accept the offer…’ The ASA found that the admission in the small print did not do enough to counter the overall impression that the advertisement was an official request for payment. The ASA ruled that the advert breached the CAP Code as it was misleading. The ASA ordered CTMD not to repeat the advert.
The CAP Code is a code of practice governing the content of adverts and marketing communications, and it is administered by the ASA. Although the Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space.