5 July 2008

Recent decisions from the ASA

Consumer Complaints

The travel industry has recently been the subject of several complaints concerning misleading advertisements. Two disgruntled consumers complained in separate instances about airfares advertised by Mango.

In the first complaint, a Mrs N noted that Mango had advertised in Edgars Club Magazine that Edgars Club members could fly with Mango for only R259 per one way flight "whenever travelling". The complainant then discovered that no flight seats were available at the advertised price and complained to the ASA. Mango responded to the complaint by indicating that the advertisement noted that seats were subject to availability and that terms and conditions applied. In truth, Mango's arrangement with Edgars was that only 10 of every 186 seats are available at the advertised special price. The ASA upheld the complaint and held that the advertisement was misleading as it did not indicate that seats at the special price were limited or that Edgars Club members may have to pay a higher price in any circumstance.

In the second complaint, a consumer complained that flights at prices advertised on Mango's web-site were not available and that this was misleading advertising. Mango countered that if the consumer had reference to its terms and conditions (contained on a separate web-page), he would have noted that the fares advertised were for a limited period only. The ASA upheld the complaint saying that such a term (limiting the duration of the advertised offer) must appear in the advertisement. Emirates Airlines similarly had to undertake to amend an advertisement of its ticket prices that were subject to limited availability by explicitly saying so in the advertisement. Imperial Car Rental, meanwhile had to withdraw an advertisement which indicated that Toyota Corollas "or similar" were available for hire at a particular price because when the Toyota's were not available, the so called similar cars proved to be very dissimilar and this was misleading.

In the food market, Milky Lane had to withdraw (its misleading) claims that it supplied Maple Syrup with its waffles and other sweet treats because the syrup concerned is merely maple flavoured golden syrup and not syrup milked from a Maple tree. The makers of Cape Way Sorbet acknowledged that not all of their sorbet flavours were "low fat" as advertised, as those with coconut milk had a fat content of more than 3%. KFC fended off a complaint that ads for its new Colonel Burger might be misleading because the chicken used could be a reconstituted patty by proving that it had actually sourced bigger, better quality whole chicken breasts. McDonald's had to contend with a complaint that a burger served to a customer was neither as large or replete with the fresh and appealing looking garnish as a picture of the burger on a McDonald's menu suggested it was. McDonald's was successful by proving that it photographed its actual food products when preparing its ads, even if it didn't manage to make the products look as appealing when serving them to customers and the pictured burger was sufficiently similar.

In the leisure industry, Silversands Casino successfully defended its advertisement featuring an over-the-hill telephone temptress engaged in bluffing her client by arguing that the ad was not offensive, did not contain inappropriate sexual innuendo communicated in an inappropriate fashion and was very clearly a tongue in cheek pun. Montagu Springs resort defended its advertisement that it enjoyed sunshine 365 days a year on the basis that the rare precipitation in the Karoo is usually followed by sun and no reasonable person would expect any portion of South Africa to never receive rain. The same logic was applied previously by the ASA to a complaint that the name "Blue Train" mislead a consumer because the locomotive was in fact yellow. The passenger portions of the train are blue and the colour of the locomotive could not cause disappointment to the extent of misleading a consumer. The Southern Sun Waterfront Cape Town was permitted to keep its name in its advertisements as it had also published a notice in the ad that it was close to the V&A Waterfront and not on the Waterfront. The name of the hotel as advertised is thus not misleading as suggested by the complainant in the matter.

Meanwhile, the distributors of Nivea Goodbye Cellulite were ordered to withdraw claims that the product reduces cellulite because they were not able to produce independent documentary substantiation of this claim. This highlights the importance of never making claims in advertisements that cannot be substantiated.

Nick Altini, Director, Regulatory and Competition Practice.

Competitor Complaints:

The Code of Advertising Practice prohibits an advertiser from copying an existing advertisement or any part thereof in a manner that is recognizable or that clearly evokes an existing concept and which may result in the loss of advertising value. This applies even where there is no likelihood of confusion.

In two recent ASA complaints concerning alleged breaches of the above provisions of the Code, the ASA reiterated that it would only intervene where there was conscious copying of original intellectual thought.

In the first instance, Danone Clover (Pty) Ltd submitted a complaint that two Liqui-Fruit television commercials copied the concept used by its brand, Tropika, in its commercials. Tropika has for many years used the concept of an island and a relaxed tropical lifestyle as a creative device for its brand. Danone Clover complained that the Liqui-Fruit ads, which portrayed a Caribbean-like scene and featured women making fruit juice in an island setting, imitated the advertising concept used by Tropika. The ASA considered the complaint and determined that the only similarity between the two products’ commercials was the concept of a laid-back, tropical island setting. The ASA found that this island concept was a generic one and was not on its own distinctive of the Tropika brand.

In the second matter, Royco complained that Knorr's use of empty thought bubbles in the form of plates above the heads of a family in a commercial imitated the thought bubble device used by Royco in its advertisements. Royco submitted that the empty “thought bubble plates” in Knorr's commercial set up the same "problem-solution” insight that Royco had used to communicate the solution to the problem of what meal to prepare. The ASA found that there could be no original intellectual thought in the generic thought bubble device in isolation. However, certain elements in an advertisement might be generic in isolation, but a particular combination of those elements could amount to original thought in a particular context. Despite this, the ASA found against Royco as the execution of the concepts in the commercials differed and there was no conscious copying of Royco's original intellectual thought by Knorr.

Many ASA complaints are resolved before a final ruling is made, where an advertiser voluntarily agrees to withdraw or amend its advertising – often to avoid further sanctions or a ruling against them on the merits. This was the case when Vodacom complained that Cell C’s “Woza Weekend” campaign was misleading. The television, print and internet commercials implied that users could talk for free on weekends with a particular Cell C package but, although stating that conditions applied, did not clearly specify what the material conditions were, for example that the offer only applied to calls to other Cell C customers and that a minimum weekly spend of R10.00 for prepaid customers was required.

Debonairs Pizza lodged a competitor complaint against Scooters Pizza in respect of the published financial report of Scooters Pizza's holding company, which referred to Scooters Pizza as “the leading pizza delivery chain”. Debonairs Pizza contended that the claim was false and misleading because Debonairs was in fact the leading pizza delivery chain. It submitted independent research results as motivation for this claim. Scooters Pizza agreed to remove the statement from any future advertising and removed access to the financial results from its website.

In another matter, the ASA was asked to consider whether Pratos’ advertising claim that it sold "the world's most desirable shoe brands" was objectively capable of substantiation in terms of the code, which states that advertisers must hold documentary evidence to support all claims that are capable of objective substantiation and that such evidence must emanate from or be evaluated by an independent and credible expert. Pratos submitted that the claim was not intended to be objectively assessed – it was a general statement to indicate that a broad range of high profile and desirable brands were offered at Pratos stores. In this context, the statement was to be seen as hyperbole. The ASA Directorate confirmed that advertisers may use a certain amount of hyperbole in the description of their goods. Desirability is not a feature or product that can objectively be assessed and is clearly a matter of opinion. However, the claim that the shoe brands were the “World’s most desirable” made it comparative within a specific sphere and could be objectively assessed by looking at appropriate research surveys. The ASA accordingly found that the claim was unsubstantiated and had to be withdrawn.

Brigit Rubinstein, Director, Dispute Resolution practice, Cliffe Dekker Hofmeyr.

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