This week the ASA have ruled on two misleading claims, one regarding the provision of “complementary food and drinks” on trains and the other assessing the overall impression created by a medical ad.  

No such thing as a free lunch (literally) with XC Trains Ltd t/a Cross Country Trains (CCT)

What was complained about? CCT advertised that First Class passengers could "Sit back, relax and enjoy complimentary refreshments" on their “First Class services." The ad included a route map which only showed the Reading to Guildford route as "no catering" and the offer was caveated with the text “all items and offers listed are subject to availability, may change or may be withdrawn at any time".  The ad received complaints from two frequent First Class travellers who claimed that the advertisement was misleading as complimentary food and drink were not provided.

What was the ruling?  Upheld. Despite CCT explaining that their operations were disrupted by strikes and storms beyond their control and sharing data that showed complimentary catering was scheduled to be available on 70-78% of their services during this time, the ASA ruled that CCT's advertisement was misleading. This was in no small part because merely planning (which is not the same as providing) complimentary refreshments on 70-78% of trains means that 30-22% of trains do not have any complimentary refreshments is a significant qualification which was not evident in the ad. In addition, this 70-78% figure which was provided by CCT was a scheduled figure only, and didn’t appear to reflect the actual provisions of food on board during the further disruption caused by the strikes and storms. This led to a breach of the CAP Code on several counts - rules 3.1 (Misleading Advertising), 3.7 (Substantiation) and 3.9 (Qualification).

What are the ramifications?   It is always tempting for advertisers to present their products as more desirable than they really are. However, brands should take a step back and consider the effect of their ad claims from that of an average consumer. If you or I had shelled out for a first-class ticket, deliberately avoided Reading to Guildford, and then found that there were no complimentary refreshments to be sat back with and enjoyed it is highly likely that we would be annoyed – if it is good enough to be advertised as a benefit, that benefit (and any limitations) should be accurately described. The ruling also shows that including text such as "all items and offers listed are subject to availability, may change or may be withdrawn at any time" (which the ad contained) is not sufficient to counter an overall impression that a stated benefit will be provided and should be used only in exceptional circumstances (ie not where 30-22% of all journeys would not have such benefit).

Medical adverts are Flarin up with infirst Ltd t/a Flarin

What was complained about? The ASA assessed a TV ad for Flarin. The Ad featured a voice over and text claiming that “no other ibuprofen has been proven to be more effective” in dealing with joint pain. Another voice over then stated - “Only Flarin features lipid lock technology, encasing ibuprofen in lipid oils, which are absorbed in the small intestine. So when joint pain flares, choose Flarin.” At the same time, the ad included an animation of the lipid lock technology working as two tablets moved through the stomach into the small intestine, and product shots of Flarin and Flarin Joint & Muscular Pain Relief with on-screen text that stated, “WHEN JOINT PAIN FLARES CHOOSE FLARIN”. The ad and phraseology used in the ad was challenged for being misleading by implying that Flarin was more, or uniquely, effective for combatting joint pain. 

What was the ruling? Upheld. The ASA acknowledged Flarin’s response that accepted that the ad was an ibuprofen product and was intended to make two distinct claims: (a) that Flarin was just as effective for joint pain, and (b) that only Flarin featured Lipid Lock technology, and confirmed that these claims had been substantiated. Interestingly, despite Flarin substantiating the claims made in the ad, the ASA assessed how the ad itself was likely to be interpreted by consumers. However, the ASA felt that the phrases “joint pain” and “more effective” appearing on the screen in red enlarged print, was likely to lead consumers to believe instead that Flarin was uniquely specifically more effective for joint pain than other ibuprofen products (which it is not). Additionally, the ASA noted that the above claims, in combination with the claim that “only Flarin uses Lipid Lock technology” were likely to mislead consumers into thinking that Lipid Lock technology was linked to the product’s efficacy while it was not. 

What are the ramifications? The ruling reinforces the importance of clear and accurate communication in advertisements, especially for medical products. Advertisers must ensure that their claims are not only substantiated by data but also and presented in a way that is not likely to mislead consumers. In previous articles, we emphasised the importance of maintaining data that can be used to substantiate any claims made in ads for medical products. Despite the ASA finding that Flarin had adequately substantiated the claims which they intended to (“no other ibuprofen is more effective” (our emphasis added) ie Flarin is the same as other ibuprofen products), the style and emphasis on the words in the ad meant that consumers would interpret this claim differently (ie that Flarin is more effective than other ibuprofen products) and this claim had not been substantiated, so their ad was deemed to be misleading. This case demonstrates the importance of ensuring that the claims made in an ad correspond to the product’s practical effects and do not exaggerate the efficacy of the product.  This ruling shows once again that attempting to ‘out smart’ the ASA is not an option. Being able to substantiate the express claims made in an ad will count for little if the ad is implicitly making other claims that cannot be substantiated (eg in this example that ‘Flarin was the most effective treatment for joint pain due to lipid lock’). The ASA will always consider an advert’s “overall impression” (including its presentation) and will base its rulings on the likely effect on the consumer, irrespective of a marketer’s intentions or express claims. Readers of this blog may be familiar with English courts construing ambiguity contra proferentem and one could adduce that the ASA construes it contra venditator.