Clifford Chance

Very necessary or Very extravagant?

The ASA has ruled that a radio advert released by online retailer Very was in breach of the BCAP Code in relation to responsible advertising and the advert must not be broadcast again in the same form.

The advert in question, which was released in 2021, featured a fictional mother speaking about her daughter Bella. She states "My Bella is logo mad. I tell you what, she’d rather go to school in her socks than in trainers that aren’t Adidas or Nike. But, I wanted to treat her, so I went to Very and got all the stuff she wanted, and I was able to spread the cost. This was a really big year for Bella, and I want her to smash it …". The statement was followed by a voiceover that said "With Very Pay, you have a choice of ways to pay for this very big school moment. Life is this very moment".

Complainants argued that the voiceover encouraged the use of credit to finance excessive spending on branded goods and argued that the advert was irresponsible. Very responded that the scenario in the advert involved a mother purchasing necessary items for her child. The ASA disagreed and upheld the complaint on two counts.

Firstly, "Very Pay" includes a "Buy now Pay Later" functionality, which allows consumers to delay repayment by up to 12 months. Any monthly balance remaining after the 12 months would incur interest at 39.9 APR representative. Therefore, the adverts messaging explicitly connected the use of a form of credit to buying more expensive goods.

Secondly, the mother in the advert stated that her child would “rather go to school in her socks than in trainers that aren’t Adidas or Nike”. Some listeners may have seen these comments as disparaging the purchase of non-branded items for their children to wear at school, thus putting pressure on parents to purchase expensive items on the basis that they could affect their child's success at school.

Key takeaway:

• Adverts should not encourage excessive spending, or the use of credit to facilitate this, as this is socially irresponsible.

Uche Eseonu, Associate in the Intellectual Property team

Lack of support for Adidas' new advert

Adidas UK's recent campaign to promote and celebrate the diverse nature of women's bodies has instead caused several complaints claiming that the advert's use of nudity objectifies women's bodies, causes offense and is inappropriate for children.

Adidas launched a campaign in February 2022 featuring a poster and a tweet containing the bare breasts of 20 women representing a diverse range of skin colours, shapes and sizes. The campaign also included a third poster containing the same series of photographs but with the models' nipples obscured by pixilation.

The campaign aimed to promote their brand-new range of 43 sports bras made in varying styles. With this new range, Adidas aims to dispel the historically incorrect assumptions around the homogeneity of the female body by accommodating for a range of different body types.

Adidas iterated to the ASA that the campaign was intended to promote a positive message, with all models being "supportive of its aims". The advert propelled this message by accompanying the posters and posts with slogans such as "We believe women's breasts in all shapes and sizes deserve support and comfort", "the reason we didn't make just one new sports bra" and the hash tag "#SupportIsEverything". Despite this, the ASA received 24 complaints which could be categorised into the following two types.

The first type of complaint claimed that the campaign was harmful and offensive as it used nudity to objectify and sexualise women's bodies.

The ASA found that the women featured in the poster and the Twitter post were not sexually objectified in a manner that went against the regulator's guidelines, but the ASA did consider that naked breasts are likely to be seen as explicit nudity which may cause harm and offence. This is amplified by the fact that the advert's focus, the sale of sports bras, was only featured in the text and not in any of the imagery.

The ASA also deemed the pixelated version of the poster to be "less immediately explicit", but as still recognisably depicting naked breasts, the concluded the effect is therefore the same.

The second type of complaint challenged whether Adidas' poster, which was displayed in untargeted spaces, was appropriate for display in areas where it could be seen by children.

The ASA noted here that considering the advert was deemed to have explicit nudity, care must be taken to avoid placing them in areas where offence might be caused to those who view it. The posters that Adidas had commissioned were placed in public spaces where it was likely to be seen by people of all ages, including children which could cause widespread offence.

Key takeaway:

• Adverts must not contain nudity, particularly when displayed in spaces that can be viewed by children, as this may cause harm and offence.

Yousif Alawoad, Trainee in the Intellectual Property team

The Fast v the Furious: What does it take to be the UK's fastest broadband provider?

The ASA has again made a ruling on broadband advertising as part of a series of complaints by UK broadband providers against one another's advertising practices, dubbed by some the "Broadband Wars".

In 2021, Virgin Media included on its website two adverts including a claim to be the UK's fastest major broadband provider, based on average fibreoptic speeds. BT challenged this claim before the ASA on the basis that (a) the statement was misleading; and (b) it was not verifiable by consumers (as required of comparisons with identifiable competitors under the CAP and BCAP Codes).

The first prong of BT's challenge was made on the basis that Virgin's Gig1 Fibre service was only available in certain areas of the UK. BT were concerned because their full fibre service was available in some locations where Virgin Media’s Gig1 Fibre service was not, and so for those consumers, the fastest major broadband provider was not Virgin Media but BT.

The ASA reviewed the information Virgin Media had provided to substantiate the average download speeds stated in the adverts. ASA found the methodology used to calculate the average download speed of their Gig1 Fibre service was in accordance with Ofcom’s Voluntary Residential Broadband Speeds Code of Practice and the CAP Advertising Guidance for broadband speed claims. ASA agreed that for a minority of consumers the fastest broadband service available from a major provider would be from BT rather than Virgin Media, but the advert made clear Virgin's Gig1 Fibre service was not available in all areas and this was sufficient to qualify the claim. The ASA therefore determined that the advert was not misleading.

However, on BT's second claim regarding lack of verifiability, the ASA held that although the advert included a table describing average download speeds of a number of providers, Virgin should have provided further information about the methodology used to calculate the figure for Virgin Media’s own speed, and to clarify the source of information for the download speeds for the other broadband providers.

As such, the adverts breached the CAP and BCAP codes and should not appear again until amended to include sufficient information to allow consumers to verify the comparison.

Key takeaway:

• Advertisers must be prepared to substantiate their claims with a high level of detail, including any relevant methodologies used to calculate statistics. 

Roland Scarlett, Associate in the Intellectual Property team