ASA Rulings Recap February 2020
Passing Off and giving away another brand as a prize
5th March 2020
PromoVeritas joins thenetworkone
10th March 2020
This month our Compliance Manager Amy Powell takes a look at Ryanair making unfounded environmental claims, a points-based promotion that didn’t quite work and a shady prize draw promotion. She also looks at another Pretty Little Thing advert that wasn’t all that it cracked up to be.
Ryanair, not so Low!
At the beginning of the month, Ryanair ran an advert in press, on TV and on the radio claiming that they were Europe’s “lowest emission airline”. Now, making bold statements about your environmental impact these days is bound to get you some traction, but for Ryanair, it wasn’t necessarily the kind of attention they were intending. A number of complainants (including a consultant in energy, transport and sustainable development, no less) asked the ASA to investigate whether this claim was entirely accurate, along with a challenge against whether any airline can even have “low CO2 emissions” by their very nature. 
Ryanair’s response statement said that the metric they used to measure CO2 emissions was grams of CO2 per passenger-kilometre and that on comparing their brand to four others in the aviation sector, they performed the strongest. The also said that while Ryanair was the top airline of 27 in terms of traffic according to the European aviation organisation Eurocontrol, they scored only 5th for CO2 emissions. Surprise, surprise, it turns out that Ryanair were being misleading as they weren’t comparing themselves with all of their top direct competitors. The ASA also considered:
“While we were satisfied that CO2 per passenger distance was an appropriate method to compare the carbon footprint of passengers on different airlines, we were concerned that the basis of the claims had not been made clear in the ads and that the evidence provided was insufficient to demonstrate that Ryanair was the lowest carbon-emitting airline on the basis of that metric. Consequently, we concluded that the claims “Europe’s…Lowest Emissions Airline” and “low CO2 emissions” were misleading”.
How this Ruling might have been avoided: Environmental claims by brands need to be backed up with a significant amount of accurate and fair, comparable data. Not comparing your brand with all other competitors in your market that are equally popular with consumers is the same as comparing an iPhone with a plastic cup and a piece of string – any claims about comparative effectiveness are bound to be misleading. Likewise brands must be ultra-clear about all considerations they factor in when making comparisons – quantifying how they came to this conclusion is key to provide the consumer with all information and avoid misleading them.
Candy Coat’s Sticky Gumball Promotion
Way back in January 2019, nail polish company Candy Coat’s website claimed “1 Gumball for every £1 spent”. A complainant who had an account with Candy Coat challenged whether the promotion had been administered fairly because they received fewer Gumball points than the amount they’d spent on purchases on six separate occasions.
So apparently for Candy Coat, points don’t always necessarily mean prizes. They said that one Gumball was awarded to customers for every £1 they spent (minus shipping and tax) and for actions completed on social media – and that this was made clear in their FAQs. Candy Coat claimed that the complainant had been unable to redeem Gumball points because they had duplicated actions on social media to gain points, which was against the rules.
Ultimately, however, Candy Coat attempted to lay the blame elsewhere, stating that their Gumball rewards programme was run by third-party company and that they should not be held responsible. Naturally, the ASA wasn’t satisfied with this response:
“We considered that promoters should avoid disqualifying entrants for their promotion on the basis of broad terms if they did not hold clear evidence of abuse…although they used a third-party app to run their Gumball rewards programme, Candy Coat was responsible for all aspects and all stages of their promotions. In the absence of sufficient explanation about the complainant’s circumstances and evidence to show how the complainant had duplicated actions on social media, we considered that Candy Coat had not conducted their Gumball rewards programme fairly and honourably.”
How this Ruling might have been avoided: The devil is in the detail with points-based promotions like this – what is included and excluded from the promotion in particular. In addition to this, brands must take ultimate responsibility for the running of their promotions, passing the blame on to another just won’t stick with the ASA.
Inside Lifestyle’s Shady Holiday Prize Draw
The bespoke travel experience company partnered with reality TV personality, Jack Fincham, to give away a £15,000 holiday to Dubai. However, the posts on both the brand and Fincham’s Instagram pages were devoid of a closing date and no T&Cs were available. A complainant spotted this blatant breach of the CAP Code and challenged whether the promotion was administered fairly. On investigation, the ASA found that a winner had been selected but the closing date was actually changed three times – Inside Lifestyle said that the competition had been extended due to the large number of applications they had received…great! But that’s never a legitimate reason to extend a promotion. 
Although the ASA accepted a winner had been chosen, in their consideration they quoted the CAP Code which states that a closing date must not be extended “unless unavoidable circumstances beyond the control of the promoter made it necessary, and either: not to change the date would be unfair to those who sought to participate within the original terms; or those who sought to participate within the original terms would not be disadvantaged by the change”.
Unsurprisingly, they didn’t consider a participation rate to be an unavoidable circumstance and the brand should have foreseen the high level of interest. “We also considered that the extension of the closing date meant that consumers who had entered by the original date would have reduced chances of winning because of the new entries that were received…and therefore the change disadvantaged those who sought to participate within the original terms of the competition.”
How this Ruling might have been avoided: When running any form of prize promotion, it’s imperative that all material information – including closing dates and a link to the full T&Cs – are made available in every communication, regardless of the medium or channel. In addition to that, we always strongly advise to never change a closing date unless completely unavoidable (i.e. due to technical issues), as it’s highly unlikely the ASA will ever deem that as compliant.
Pretty Little Thing on the ASA Hitlist again!
The ASA have made another ruling against the retailer clothing brand, this time for an overly sexualised advert seen on a pre-roll Youtube ad. Now, no-one is going to judge if you love the idea of a “black vinyl, high waisted chaps-style knickers and a cut-out orange bra” ensemble plus other risqué outfit choices…as the kids are (apparently) saying these days, you do you. 
However, I would strongly advise against any brand advertising an outfit that would be deemed by many to objectify women, particularly when they have so many other clothes to advertise. Besides, do you want to be THAT brand that is seen to be overly sexualising and objectifying women in order to sell clothes?
The brand’s response stated that “the ad highlighted how they supported and promoted diversity through bold and distinctive fashion of all shapes and sizes which focused on different trends,” and they had not intended to create an ad which was deemed offensive and irresponsible. The ASA didn’t think much of the advert either, “We considered that the cumulative effect of the scenes meant that overall, the products had been presented in an overly-sexualised way that invited viewers to view the women as sexual objects. We therefore concluded that the ad was likely to cause serious offence and was irresponsible.”
How this Ruling might have been avoided: Whilst diversity is to be absolutely celebrated and lauded, brands need to consider the wider, overall impact of an advert on those being exposed to it (in this case, quite literally!). In an era where equality is as important as diversity, brands need to use their creativity and rely on one of the many other ways to sell their clothes, without (even unintentionally) being seen to portray women as objects in order to sell their products.