Posts Tagged ‘advertising’
Thursday, December 2nd, 2010
The OFT have today published their final report into which pricing models are most likely to mislead consumers. The report will set enforcement priorities for the OFT (and others), and is the result of a year-long investigation into how consumers understand different pricing practices.
The pricing practices examined in particular were:
- drip pricing
- time limited offers
- “bait” prices
- complex offers
- reference pricing
- volume offers and free offers
The report ranked drip pricing as having most potential to mislead, and volume/free offers as having the least potential to mislead. This does not mean that all drip pricing is banned and all volume offers are permitted – further factors are set out in the report, which will be considered before a decision to take enforcement action is made.
Businesses which continue to use such pricing models may be at risk of court action. We recommend that businesses take advice and review their pricing practices to check they are compliant with the guidance.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, Brands, Consumer protection, misleading consumers, OFT, pricing, pricing practices
Posted in Advertising & Marketing, Brands | No Comments »
Wednesday, November 24th, 2010
The Health Secretary, Andrew Lansley, has reignited considerations to force tobacco companies to sell their products in standard packaging, despite Conservative opposition to similar plans by Labour.
Mr Lansley believes ‘glitzy’ packets attracts young people to smoke, and has said ‘the evidence is clear that packaging helps recruit smokers so it makes sense to have less attractive packaging’. He wants to cut the ‘vast’ smoking related cost to the NHS and the economy, and instead use this money to ‘educate our children and treat cancer’.
Though the ban has been welcomed by doctors and anti-smoking bodies, the tobacco industry has already indicated it will totally reject the idea of plain packets. This is an unsurprising response from an industry already effectively stripped of its marketing arsenal, now facing a Government intending to ban companies from using their intellectual property rights.
Dmitrije Sirovica
0115 976 6243
dsirovica@brownejacobson.com
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Tags: advertising, marketing, tobacco advertising
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Tuesday, November 16th, 2010
Yesterday, Unilever proudly unveiled its new “Sustainable Living Plan”. Through “small actions”, the plan “aims to help everyone enjoy a good quality of life while respecting the planet”.
Consumers are increasingly looking for ways to ensure that they do not add to negative environmental impacts. Unilever clearly recognise that having an environmental plan will help the company increase its sales. Its claims that it will halve the environmental impact of its products over the next 10 years are bold. In order to meet its targets, Unilever say that some of its products will be reformulated, while others will go through complete packaging overhauls.
Our favourite regulator of advertising, the ASA, is alert to the power of the green badge of honour. It will be interesting to see whether Unilever are asked to substantiate its claims or whether the promises alone are enough to bring about the benefits of a good company greenwash.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Tags: advertising, advertising standards, ASA, Brands, environmental, sustainable, Unilever
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Thursday, November 11th, 2010
The ASA has banned a cinema commercial for Nivea Anti Wrinkle cream showing a woman moisturising her face as a voice proclaims “…it’s no surprise that 37% of women feel more attractive now than they did ten years ago”.
The ASA agreed with a viewer’s complaint that the ad does not make it clear whether the 37% was referring to women in general or just those who had used the cream.
In support of the claim, Nivea had carried out a survey on over 12,000 subscribers to its e-mail newsletter. The problem was that the survey sample was too general, as the ASA could not be certain that they were all users of the Nivea product. In addition, the questions asked were not specific to the eventual claim made in the ad but were instead general attitudes questions.
Companies should take heed; it is much easier to withstand challenge if you have a smaller sample of good quality, directly applicable evidence to substantiate your claim.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Tags: advertising, ASA, marketing, Nivea
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Wednesday, November 3rd, 2010
The Advertising Standards Authority (ASA) this week ruled that an ad for Harpic Power Plus misleadingly implied that it was more effective than bleach at killing germs.
The TV ad showed a woman scrubbing a toilet with bleach and then showed limescale under the toilet seat rim and a close up of germs on it.
The voiceover makes various claims, including that “Harpic Power Plus…is five times better than bleach at powering through limescale…”
Unilever were the complainant. It will come as no surprise that one of Unilever’s brands is Domestos: a domestic bleach product. Unilever has become a pro in using the ASA as an effective tool to challenge comparative advertisements. They clearly recognise that a well drafted complaint to the ASA, which highlights breaches of relevant legislation and codes of conduct, can be a more effective (and less costly) tool than engaging in potentially lengthy litigation.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Tags: advertising, ASA, Harpic, marketing, Unilever
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Wednesday, October 27th, 2010
Only last month did we tweet that Antonio Federici had been chastised by the ASA for making a mockery of the Catholic religion.
Federici were told not to run their advert, which depicted a heavily pregnant woman, dressed as a nun, holding a tub of ice cream ad, again. In response, Federici said that they would be unveiling a new advert, which would continue the theme, to coincide with the Pope’s visit to the UK.
Well, they did, and guess what; it has fallen foul of the advertising code of conduct yet again. This advert shows two men dressed as priests about to kiss, with the text ‘we believe in salivation’.
Call me suspicious, but something tells me that Federici did not fall foul of the code accidentally. It looks like the ASA and its adverse rulings are being exploited by the ice-cream maker’s marketing team to support the brand’s slightly risqué image.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Tags: advertising, Antonio Federici, ASA, Brands, marketing
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Friday, October 15th, 2010
The ASA has upheld yet another complaint against Ryanair’s pricing claims. Easyjet complained that Ryanair could not substantiate the claim ‘Cheapest way to the Sun‘, and did not make the basis of the implied comparison clear. The ad encouraged consumers to ‘Book now for Summer 2010′.
The ASA upheld both complaints. Ryanair’s evidence showed they sometimes offered cheaper flights than their nearest competitor, but did not show that they were cheaper for the whole of Summer 2010. Ryanair have been told not to repeat the ad in its current form.
On the one hand, this is an example of why certain advertisers feel able to ignore the threat of an adverse ASA ruling – because by the time this adjudication was made, ‘Summer 2010′ was long gone. On the other hand, will the reporting of rulings such as this, combined with protests such as ‘ihateryanair.org,’ undermine the credibility of Ryanair’s low-cost business model for Summer 2011?
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, ASA, Brands, marketing, Ryanair
Posted in Advertising & Marketing, Brands | 1 Comment »
Friday, October 8th, 2010
Last month we reported that the ASA plans to significantly extend its online remit. Our opinion was that this would bring much new material into their territory, and that your competitors may start complaining to the ASA if they feel there is potentially misleading information on your website.
This issue has clearly now been picked up by the ASA and CIPR. The ASA have clarified that “online public relations”, defined as “press releases, other public relations material and editorial content”, are not covered. The ASA will be concerned only with marketing communications, including advertising, sales promotion and direct marketing.
In our view, the boundaries of the above definition are currently insufficiently clear to prevent an influx of complaints once the new system gets underway. However CIPR will be giving further guidance, including examples of common types of activities considered as “public relations”– whether this will resolve the issue remains to be seen.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, ASA, cipr, online advertising
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Tuesday, October 5th, 2010
The European Commission has referred the UK to the European Union’s Court of Justice for having insufficient laws on internet privacy and for failing to comply with EU rules, specifically the ePrivacy Directive and the Data Protection Directive which state that a person’s consent to interception of their communications must be a ‘freely given, specific and informed indication of a person’s wishes,’ rather than a default presumption.
It follows an investigation in 2009 by the UK Information Commissioner’s Office after BT collaborated with targeting company Phorm to collect online browsing data that was later used to select ads for delivery to individual computers. The investigation concluded that no laws had been broken by BT or Phorm.
Whilst some marketers, advertisers and brand owners will see this latest development as another blow to their potential creativity others will regard it as an opportunity to gain greater customer respect and loyalty by being seen to be open and transparent about their advertising techniques.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Tags: advertising, Brands, Data Protection, internet privacy, marketing
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Wednesday, September 15th, 2010
On Wednesday the ASA ruled that an advert for Antonio Federici ice cream was offensive to Catholics. The advert depicted a heavily pregnant woman, dressed as a nun, holding a tub of ice cream. The advert’s text said “Immaculately Conceived….”
Federici said that their advert was a form of art and self-expression. They felt that advertising should be challenging and often iconoclastic. However the ASA said that the use of the image was likely to be seen as a distortion and mockery of the beliefs of Roman Catholics, and using it in a light hearted way to advertise ice cream was likely to cause serious offence.
In response, Federici have stated that they will be unveiling a new advert, which continues this theme, to coincide with the Pope’s visit to the UK.
This approach is similar to ambush marketing, and at the very least, contradicts the spirit of the ASA’s ruling. Is this another example of an adverse ASA ruling providing useful publicity for a brand?
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, ASA, Brands, marketing
Posted in Advertising & Marketing, Brands | 1 Comment »
Wednesday, September 1st, 2010
The Advertising Standards Authority (ASA) today announced that it will be extending its remit to cover marketing communications which appear on businesses’ own websites. Previously, the ASA’s online coverage only extended to paid-for adverts. The change will come into force on 1 March 2011.
This is a significant change, as it brings a large amount of new material into the ASA’s territory. The ASA will now have the power to, for instance, examine claims made about your product on your website, and pronounce that they are misleading, or socially irresponsible. The ASA would then require that such claims not be made again. Businesses which operate primarily online through their own website could find themselves subject to ASA investigation for the first time.
An adverse ASA adjudication can produce a great deal of negative publicity, and in addition the ASA have decided that they may in future place their own advertisements online, to be found by search engines, to name and shame advertisers who refuse to comply with their rulings. For this reason your competitors may look to instigate a complaint if they feel there is misleading information on your website. Businesses should take the opportunity now to submit their website’s content for review, to avoid the risk of a complaint.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, ASA, Brands, marketing, online advertising
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Friday, August 27th, 2010
On Friday it was reported that the US FTC has ruled against a firm whose employees, posing as ordinary consumers, posted favourable reviews of its own clients’ iPhone applications. This type of marketing activity is known as “astroturfing.” The firm must now remove all the reviews.
In the UK, astroturfing is illegal as it is “blacklisted” by the Consumer Protection from Unfair Trading Regulations 2008. If degrading reviews of competitors’ products are also posted, this could breach the Comparative Advertising Directive, and constitute malicious falsehood, for which damages could be claimed.
The precise extent of astroturfing online is unknown – though there are certain ways to detect if a review is genuine or fake. But in a world where the casual consumer relies heavily on reviews and averaged star-ratings (be it on Amazon, TripAdvisor or iTunes), astroturfing can clearly impact on sales if left unchecked.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, astroturfing, Brands, Consumer protection, marketing
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Friday, August 27th, 2010
The new CAP and BCAP Codes come into effect on 1 September 2010.
Changes include:
- an over-arching “social responsibility” rule for broadcast adverts
- clearer guidance for both broadcast and non-broadcast on what the ASA will consider are unfairly exaggerated “green” claims
- rules preventing marketers from collecting data from children under 12 and from exploiting the trust that young persons place in parents, teachers or other persons
- clarification on the acceptable use of the word ‘free’
- a requirement that prize promotions be clear about which prizes are available to win and those that are guaranteed to be won
- new sector-specific rules for charities, food and drink, adult products, debt advisers and lotteries
Advertisers should review their current marketing projects against the updated Codes, so that they do not get caught out by the changes – and so they do not miss out on any new opportunities now available.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, ASA, marketing, new ASA rules
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Friday, August 13th, 2010
In the motor industry it is important to differentiate your product, and currently concerns about quality are running high. So Kia’s ’7 year warranty’ advertising campaign is timely – however, the ASA have this week ruled that it should not be repeated as it is misleading.
Kia had failed to sufficiently highlight that the warranty was subject to a 100,000 mile limit, and that not all items would be covered for the full length of the warranty – even though the 100,000 mile limit was referred to in the final frames of the ad, and was considerably in excess of the UK’s average annual mileage (around 10,000 miles).
Although the ruling is not fatal for Kia’s ’7 year warranty’ strapline, Kia will have to alter its adverts. Advertisers of course want to have a clear message, but this ruling shows how difficult this can be if there are significant qualifications to an offer, which need bringing to the consumer’s attention. If an offer is qualified – that information must be as clear as the strapline itself.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Advertising Campaign, ASA, Kia
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Thursday, July 22nd, 2010
In a novel promotion, Dr Pepper recently launched a Facebook app which gave consumers the chance to win £1,000 – if they allowed Dr Pepper to “hi-jack” their status updates. Dr Pepper, in line with their “what’s the worst that could happen” strapline, would use the app to post amusing embarrassing statements, which would appear as if they had been made by the entrants.
However the promotion went wrong when a 14-year-old girl’s status was updated with a reference to a hardcore pornography film, causing an outrage. Now Coca-Cola are reportedly considering moving their account from the advertising agency responsible for the promotion.
This shows the importance, when dealing with a novel promotion mechanic, of ensuring the promotion is carefully reviewed before it is run – not just for legal compliance, but also to establish what’s the worst that could happen?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Brands, Food & drink, Social Media
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Friday, July 9th, 2010
On Monday, the coalition government asked its marketing departments to plan for spending cuts of up to 40% to their advertising budgets.
Yesterday, the health secretary, Andrew Lansley gave an insight into how the government sees that businesses can help keep important marketing campaigns alive.
Lansley explained that beer companies, confectionary firms and crisp-makers will be asked to fund the government’s Change4Life campaign; an advertising campaign that aims to persuade people to switch to a healthier lifestyle. In return, Lansley has promised that these companies will not face new legislation that was to outlaw excessively fatty, sugary and salty food.
Whilst this is an innovative way of keeping an important government campaign alive, the public don t always realise that the majority of restrictions on food are imposed by mandatory implementation of European Regulations.
Is the government indulging in soft sell – or is this a promise Lansley can keep?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Saturday, June 12th, 2010
Last week we posted that Mars and The FA were considering legal action against Nestlé .
This week a study by Nielsen has revealed that Nestle are not the only ones taking advantage of “ambush marketing” during the lead up to the World Cup. The likes of Nike and Carlsberg appear to got the upper hand over their bitter rivals but its not all bad news. Nielsen also found that FIFA partner Coca-Cola was found to have had five times the level of mentions around the World Cup than Pepsi did.
With the raft of brands that are currently and will continue to engage in ambush marketing, is it time for sponsors to start taking advantage of their alignment to the World Cup by being more creative, since “owning” the tournament is clearly not enough?
Would money be better spent on savvy marketing strategies rather than on potentially fruitless attempts to try and go after arguably more creative (ambush) marketeers?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, ambush marketing, Brands, marketing, world cup
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Monday, June 7th, 2010
Mars, the FA’s official sponsor, is considering taking legal action against Nestlé’s latest advertising campaign for Kit Kat for “passing themselves off” as being associated with the England football team. This is particularly interesting since Mars ran a very similar campaign 4 years ago.
With major sporting events, “ambush marketing” can be rife with advertisers other than official sponsors keen to piggyback on the popularity of the event without expressly associating themselves with it.
Although sporting associations often publish guidelines as to what references they will permit, which prohibitions are actually enforceable is a question of law. There is obviously a line which must not be crossed. However Nestle say they have taken advice, and feel that the campaign is permissible.
If the law doesn’t protect the rights which official sponsors have paid for, whats the point in paying ? – or maybe we are all “fair game” when it comes to making money for football?…
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Monday, May 24th, 2010
At 10.10pm on Channel 4 this Monday, the UK will see its first ever TV advert aimed at providing women with advice about abortion.
Abortion has been legal in the UK for more than 40 years, but advertising rules still restrict commercial providers from advertising their services. Though clearly the advert will be highly controversial, Marie Stopes say they have taken legal advice and have been given permission to air the advert, as they are a “non-commercial organisation.” Such organisations, including the Government, are permitted to advertise “pregnancy advisory services.”
Similar, the ASA have said that non-commercial providers of post-conception advice services have long been permitted to run such advertisements. Any advert that is broadcast has to comply with all the relevant rules in their Advertising Code. However, the ASA cannot act on objections that viewers might have about the service being advertised at all – they can only act on complaints, after broadcast, that the advert has breached its codes, for instance on its actual content, or inappropriate scheduling.
Nevertheless, the Society for the Protection of Unborn Children is considering making a challenge to the legality of the advertisement. As the ASA have set out the limits of their involvement, it will be interesting to see what other route SPUC try to pursue to prevent such advertisements – potentially arguments about human rights, including the right to life and the right to free speech, may be involved.
From a legal perspective, this shows the importance of seeking advice before embarking on an advertising campaign, because Marie Stopes are now able to state that they have taken such advice ahead of any controversy which might be brewing. It shows the limits of the ASA’s remit, even in highly controversial cases – but also that these limits do not prevent offended groups from seeking to take other forms of legal action.
advertisement will ask women “are you late?”, and will direct those facing an unplanned pregnancy to Marie Stopes’ helpline. It is anticipated that the advertisement will cause uproar amongst pro-life campaigners.
This may be Legal Honest and Truthful – but is it Decent?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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