TV ads: is it a qualification or is it a contradiction?

A recent decision by the ASA held that a gambling advertisement was misleading where a qualification to the offer was included on screen – the ASA found that the qualifying comment was actually contradictory to the main offer contained in the ad.  A complaint against the ad was upheld even though the ad had been cleared by Clearcast, highlighting how the ASA may interpret the obligation not to mislead consumers in a stricter manner.

Background

William Hill released a television ad on 15 September 2017 concerning a horseracing promotion.  A voiceover promised “bet on any live ITV flat race and if your horse wins by 2 lengths or more you’ll get a 15% free bet bonus on your winnings” and that the offer was “available on all ITV flat races”.

On screen, the words “Free Bet Bonus” and “Live ITV Flat Races” flashed up when referenced in the voiceover. Meanwhile, at the bottom of the screen, small text stated “selected UK flat races.  6+ runners.”

The BCAP Code seeks to prevent broadcast advertising which may be misleading. According to rule 3.10 of the Code, advertisements must state significant limitations and qualifications; such qualifications may clarify but must not contradict the claims they qualify.

William Hill argued that the key terms of the promotion were highlighted that consumers still had the ability to make an informed choice on whether to participate. In any event, of the races in question, 97% were scheduled to have 6 or more runners.  After non-runners and withdrawals, 95% of races would have been eligible for the offer, which is still a significant proportion.

Clearcast had reviewed the ad and said that William Hill often ran these kinds of ‘enhanced offers’ and for each one, they provided full and substantive details. They considered that the chance of dropouts leading to a race being ineligible for the promotion was rare, and they were therefore happy that the small print was a qualification, rather than a contradiction.

Decision

Despite the relatively minor effect of the ‘qualification’, the ASA still held that the limitation to races with 6+ runners was “a significant qualification that should have been prominently included in the main body of the ad.” 

The small print and the voice-over (which referred to ‘any live ITV flat race’ and ‘all ITV flat races’) were considered by the ASA to be contradictory and the ASA held that the advert was misleading.  It ruled that the ad must not appear again in its current form.

Effect of this Decision

The ASA’s decision here highlights that advertisers should be very careful when using qualifications. Despite the relatively minor effect of the qualification (excluding only 5% of races), and despite the fact that the ad had been cleared by Clearcast, the ASA has shown that it may have a different interpretation of when a qualification becomes a contradiction. 

This article was written by Peter Byrd. For more information, please contact Peter on +44 (0)20 7427 6754 or at peter.byrd@crsblaw.com.

To view the ASA ruling, click here.