Report No. 30 – January to April 2004 This report contains details of 36 Cross-Border Complaints cases handled by the EASA’s Cross-Border Complaint System and closed during the period January - April 2004. 35 of these cases relate to allegations of Misleadingness, and one to Unsolicited Advertising. The media concerned are Direct Mail (33 cases), Internet (2 cases), and Fax (1 case).
Note: In cases involving EU member states, advertisements are required to comply with the rules in the country of origin of the media in which the advertisement appeared or, in the case of direct mail or Internet advertising, the country where the advertiser is based. Switzerland, as a non-member of the EU, requires advertisements addressed by Swiss-based advertisers to consumers in other countries to comply with the rules in those countries. Consequently, in such cases, the SRO in the complainant’s country assesses the complaint on the basis of its own national rules before passing it on the Swiss SRO.
0947 European Weight Loss Centre
Complaint (misleading) to the UK SRO, ASA, from a UK consumer concerning a mailing from the Netherlands, featuring a slimming product. The advertisement guaranteed specific weight loss within a specified time; the complainant doubted the veracity of these claims. ASA transferred the complaint to the Dutch SRO, SRC, according to the EASA cross-border procedure. SRC considered the mailing to contravene art. 7 (misleadingness) of the Dutch advertising code, and requested the advertiser not to use the same mailing again. Complaint upheld, case closed.
0971 Bureau International d'Attribution de Gains
Complaint (misleading) to the French SRO, BVP from a French consumer concerning a direct mail from Switzerland claiming that the complainant had won a lottery. The complainant doubted the veracity of the claims. BVP found the advertisement to be in breach of arts. 121-36 (promoters should not mislead consumers as to the likelihood of winning) 121-1 (misleadingness) and 121-18 (promotions should include all necessary information for the conclusion of the contract), and transferred the complaint to the Swiss SRO, CSL. As the advertiser was not registered in Switzerland according to legal requirements, the case was transferred to the State Secretariat of Economic Affairs. Case transferred the appropriate authority, case closed.
Complaint (misleading) to the UK SRO, ASA, from a UK consumer concerning a direct mailing from the Netherlands featuring a lottery. The mailing declared the complainant to have won a prize, which could be obtained by paying a handling fee. The complainant doubted the veracity of the claims. ASA transferred the case to the Dutch SRO, SRC, under the cross-border procedure. The SRC considered the mailing to contravene art. 3 (not clear that it is only an invitation to play) of the Code for Sweepstakes. The advertiser was requested not to use such advertising in the future. Complaint upheld, case closed.
Complaint (misleading) to the French SRO, BVP, from a French consumer concerning a direct mailing from the Netherlands featuring a lottery. The advertisement declared the complainant to have won a prize, but objected to the fact that he was requested to pay a fee to obtain the prize. BVP transferred the complaint to the Dutch SRO, SRC, under the cross-border procedure. The SRC found the advertising to contravene art. 2 (failure to include the address of the advertiser) of the Dutch Code for P.O. Box advertising, House Sampling and Direct Response Advertising, and art. 8 (request for handling fee to obtain the prize) of the Dutch Code on Sweepstakes. The advertiser was requested not to use the same advertising again. Complaint upheld, case closed.
Complaint (misleading) to the Irish SRO, ASAI, from an Irish consumer concerning a direct mailing from the Netherlands featuring a lottery. The complainant was the declared winner of the lottery, and was asked to pay a handling fee to obtain the prize. The complainant doubted the veracity of the claims. ASAI transferred the complaint to the Dutch SRO, SRC, under the cross-border procedure. SRC considered the advertisement to contravene art. 3 (misleadingness and raising false expectations of the likelihood of winning) of the Dutch Code for Sweepstakes. The advertiser was asked not to use the mailing in the future. Complaint upheld, case closed.
0998, 1038, 1041-1045, 1053-1054, 1216-1217 Laboratoires La Roque
Complaints (misleading) to the UK SRO, ASA, and the French SRO, BVP, from UK and French consumers, concerning a direct mailing from Switzerland containing a promotion for a slimming product and featuring a lottery. The complainants were declared winners of the lottery, but they doubted the veracity of this claim, as well as the weight loss claims and whether the ‘before and after’ photos were genuine. ASA and BVP transferred the complaints to the Swiss SRO, CSL, under the cross-border procedure. CSL transferred the case to the State Secretariat for Economic Affairs, as the advertiser had not respected previous decisions by CSL. Case transferred to appropriate authority. Case closed.
Complaints (misleading) to the UK SRO, ASA, from UK consumers concerning a direct mailing from Spain featuring a lottery. The complainants were declared winners of the lottery, but doubted the veracity of the claims. ASA transferred the complaints under the cross-border procedure to the Spanish SRO, Autocontrol. Investigations showed that the address where the advertiser claimed to be operating did not exist. Furthermore, the fact that the advertiser used the logo of the Spanish Ministry of Economic and Tax Affairs, suggesting official authorisation, made Autocontrol transfer the complaint to the competent Spanish statutory authority for lotteries. Complaint transferred to appropriate authority, case closed.
Complaint (misleading) to the Italian SRO, IAP, from an Italian consumer, concerning a direct mailing from Switzerland featuring an internet database of European companies. The mailing stated that the complainant’s company information was to be published in an internet business database and invited it to verify the details already printed on the form, and then to sign and return it. The complainant believed that the mailing was misleading because it did not make sufficiently clear that returning the signed form automatically constituted an order. The complainant was subsequently invoiced for payment. IAP transferred the complaint to the Swiss SRO, CSL, according to the cross-border procedure. The CSL considered that the form clearly stated that by signing the form, an order would be automatically placed, and therefore found that there was not sufficient evidence to decide that the advertisement was misleading. Complaint not upheld, case closed.
Complaint (misleading) to the European Advertising Standards Alliance, EASA, from a Maltese company concerning a direct mailing from Switzerland. The advertiser offered to place the recipient’s company information in a business directory and invited him to verify the company details already printed on the form, and then to sign the response. The complainant believed that the mailing was misleading because it was not clear that returning the signed form automatically placed an order. The complainant was subsequently invoiced. EASA transferred the complaint to the Swiss SRO, CSL, under to the cross-border procedure. CSL investigated the case, and found that the advertiser appeared to be based in Liechtenstein, and consequently transferred the case to appropriate authorities in Liechtenstein. Case transferred to appropriate authority, case closed.
Complaint (misleading) to the Spanish SRO, Autocontrol, from a Spanish company, concerning an internet advertisement by a German company for data recovery services. The advertisement, which appeared on several of the company’s international websites, claimed that its data recovery services were guaranteed by an ISO certification, a claim which the complainant questioned. The complaint was transferred to the German SRO, ZEN, under the cross-border procedure. Investigation revealed that the ISO 9000 certification was only granted to the French branch of the company and did not cover the advertised services, and that the certification had expired. However, the advertisers assured ZEN that they were in process of obtaining a new certification, which would also include data recovery services. The advertiser also explained that no data recovery was actually carried out in Germany, but done by the French branch, which held the relevant certification. The complaint was therefore not upheld. Complaint not upheld, case closed.
Complaint (misleading) to the UK SRO, ASA, from a UK consumer concerning a direct mailing from the Netherlands featuring a lottery. The complainant considered the caption printed on the envelope to be misleading as to the importance and status of its contents, while being merely prize draw material sent from a commercial organisation. The complainant therefore considered the advertisement dishonest. The ASA transferred the case to the Dutch SRO, SRC, under the cross-border procedure. The SRC did not consider the caption on the envelope to be misleading. Case not upheld, case closed.
Complaint (misleading) to the UK SRO, ASA, from a UK consumer, concerning a German website containing a banner, which turned out to be a pop-up advertisement. The complainant objected that the pop-up advertisement was disguised to look like navigation buttons, and when clicked on, redirected the complainant to a new website. The complaint was transferred to the German SRO, ZEN, under the cross-border procedure. ZEN visited the advertiser’s website, but the banner was no longer appearing. Complaint not pursed, case closed.
1219-1224 Herbal Swiss Institute Research
Complaints (misleading) to the UK SRO, ASA, from UK consumers concerning a mailing from the Netherlands featuring a slimming product and including the claim "Your weight falls off so fast you need a stopwatch to keep track". The complainants doubted the veracity of the claims. ASA transferred the complaint to the Dutch SRO, SRC, under the cross-border procedure. SRC considered the mailing to contravene the art. 7 (misleadingness) of the Dutch advertising code, and requested the advertiser not to use the mailing again. Complaint upheld, case closed.
Complaint (misleading) to the UK SRO, ASA, from a UK television production company, concerning a mailing from Switzerland featuring a lottery. The complainant objected that the mailing contained a picture of a winner of the UK television programme "Who Wants to be a Millionaire?", which was produced by the complainant. The advertiser had not obtained permission to use the picture and the complainant believed that the mailing falsely suggested a link with the programme. ASA considered the mailing to contravene arts. 7.1 (misleading) and 13.1 (publication without permission) of the British Code of Advertising Practice, and transferred it to the Swiss SRO, CSL, under the cross-border procedure. CSL investigated the case, and found that the advertiser was not registered in Switzerland in accordance with the law, and transferred the complaint to the State Secretariat for Economic Affairs. Case transferred to appropriate authority, case closed.
Complaint (misleading) to the UK SRO, ASA, from a UK consumer concerning a direct mailing from Switzerland featuring a lottery. The mailing declared the complainant to be a winner of the lottery. The complainant doubted the veracity of the claim. ASA considered the mailing to contravene arts. 27.4 (promoters should avoid causing unnecessary disappointment), 35.1 (promoters should not claim consumers have won a prize if they have not), and 35.2 (promoters should not create false expectations as to the likelihood of winning), and transferred the complaint to the Swiss SRO, CSL, under the cross-border procedure. CSL investigated the case and found that the advertiser was not registered in Switzerland according to Swiss law, and transferred the case to the State Secretariat for Economic Affairs. Complaint transferred to appropriate authority, case closed.
Complaint (misleading) to the UK SRO, ASA, from a UK consumer concerning a direct mailing from Switzerland featuring clairvoyance. The mailing claimed that the advertised services would secure the complainant money, happiness and love. The complainant doubted the veracity of the claims. The ASA considered the advertisement to contravene arts. 6.1 (exploitation of the credulity of consumers) and 7.1 (misleading) and transferred it to the Swiss SRO, CSL, under the cross-border procedure, and transferred the complaint to the Swiss SRO, CSL, under the cross-border procedure. CSL transferred the complaint to the State Secretariat for Economic Affairs, as the company had failed to respect previous decisions. Complaint transferred to the appropriate authority, case closed.
1260 Bureau International d'Attribution de Gains
Complaint (misleading) to the French SRO, from a French consumer concerning a direct mail from Switzerland featuring a lottery. The mailing declared the complainant to be a winner of the lottery. The complainant doubted the veracity of the claim. BVP found the advertisement to be in breach of arts. 121-36 (promoters should not mislead consumers as to the likelihood of winning) 121-1 (misleadingness) and 121-18 (promotions should include all necessary information for the conclusion of the contract) of its Code, and transferred the complaint to the Swiss SRO, CSL, under the cross-border procedure. CSL established that the advertiser was not registered in accordance with the requirements of Swiss law, and therefore transferred the case to the State Secretariat of Economic Affairs. Case transferred the appropriate authority, case closed.
Complaints (misleading) to the UK SRO, ASA, from UK consumers concerning a direct mailing from Switzerland featuring a lottery. The complainants were declared winners of the lottery, but doubted the veracity of the claim. ASA considered the advertisement to contravene the arts. 6.1 (exploitation of credulity), 7.1 (misleading), 27.4 (promoters should avoid causing unnecessary disappointment), 31.1 (promotions should be administered with appropriate resources), and 35.1 (promoters should not claim that consumers have won, when they have not), and transferred the case to the Swiss SRO, CSL, under the cross-border procedure. CSL established that the advertiser was not registered in accordance with Swiss law, and therefore transferred the cases to the State Secretariat for Economic Affairs. Complaints transferred to the appropriate authority, cases closed.
Complaint (misleading) to the UK SRO, ASA, from a UK consumer concerning a direct mailing from Switzerland, featuring clairvoyance and claiming to be able to provide love, money and/or health. The complainant doubted if the advertiser could substantiate these claims and found them misleading. The ASA considered the advertisement to contravene arts. 6.1 (exploitation of the credulity of consumers) and 7.1 (misleading) and transferred it to the Swiss SRO, CSL, under the cross-border procedure. CSL upheld the complaint and requested the advertiser not to use the mailing again in the future. The case was also transferred to the State Secretariat for Economic Affairs as the advertiser had not respected a previous decision by CSL. Complaint upheld, case closed.
Complaint (unsolicited fax advertising) to EASA from a Belgian company, concerning an unsolicited fax from the Netherlands, featuring office and computer equipment. The complainant objected to the fact that the fax was unsolicited, and asked to be removed from the mailing list. EASA transferred the complaint to the Dutch SRO, SRC, under the cross-border procedure. After writing to the advertiser, SRC received an assurance that the complainant’s details had been removed from the mailing-list. Case closed.
Abbreviations:
SROs:
ASA = Advertising Standards Authority (UK)
ASAI = Advertising Standards Authority Ireland
ASASA = Advertising Standards Authority of South Africa
BVP = Bureau de Vérification de la Publicité (France)
CSL = Commission Suisse pour la Loyauté (Switzerland)
EASA = European Advertising Standards Alliance
ITC = Independent Television Commission (UK)
JEP = Jury d'Ethique Publicitaire/Jury voor Ethische Praktijken Inzake Reclame (Belgium)
OWR = Österreichischer Werberat (Austria)
SRC = Stichting Reclame Code (the Netherlands)
ZEN = Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. (Germany)