Report No. 34 – May to August 2005
This report contains details of 11 Cross-Border Complaints cases handled by the EASA’s Cross-Border Complaint System and closed during the period May to August 2005. 8 of these cases relate to allegations of misleadingness, 2 to issues of offence and 1 to unsolicited mailing. The media concerned are direct mail (8 cases), brochure (1 case) and magazine (2 cases).
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 to the Swiss SRO.
Complaint (misleading) to the UK SRO, ASA, from a UK consumer concerning a direct mailing from the Netherlands featuring a lottery. The recipient was declared a winner of the lottery, but doubted the veracity of the claims, and objected to the fact that a purchase was necessary to obtain the prize. ASA transferred the case under the cross-border procedure, to the Dutch SRO, SRC. SRC considered that the advertisement was in breach of the art. 7 (misleading) of the Dutch Advertising Code, and requested the advertiser to refrain from using a similar approach in future mailings. However, the SRC did not uphold the complaint concerning the obligatory purchase to obtain the prize, as the terms and conditions stated "No purchase is necessary". Complaint partly upheld, case closed.
1559 Institut de Recherches en Therapies Naturelles
Complaint (misleading) to the French SRO, BVP, from a French consumer concerning a direct mailing from Switzerland featuring health products. The mailing contained a series of statements about the effects on the user’s health when using the product, without providing any evidence. The consumer doubted the veracity of these claims and objected to the lack of scientific backing. BVP considered the advertisement to be in breach of art. L121-1 (misleading) of the Consumer Regulations, as well as not containing the necessary information concerning the identity of the advertiser, as required by art. 72 of the Decree of 30.5.1994. BVP transferred the complaint to the Swiss SRO, CSL, under the cross-border procedure. CSL noted that the advertiser was not registered in Switzerland according to legal requirements, and transferred the case to the appropriate authority. Complaint transferred to appropriate authority, case closed.
1560 TVV Tele Verzeichnis Verlag GmbH
Complaint (misleading) to the Irish SRO, ASAI, from an Irish company concerning a direct mailing from Germany featuring a business directory. The mailing invited recipients to confirm their company information printed on the form. However, by signing the form, the companies automatically ordered an advertisement in the Directory on Line. The complainants considered that the advertisement did not make it sufficiently clear that the signature constituted an order, and hence found it misleading. The ASAI transferred the complaint to the appropriate authority in Germany, the Deutscher Schutzverband gegen Wirtschaftskriminalitet e.V.. Complaint transferred to appropriate authority, case closed.
1562 Symantec Internet Services
Complaint (misleading) to the Irish SRO, ASAI, from an Irish consumer concerning an internet advertisement for antivirus software. The antivirus software was advertised to come with a free copy of the DVD of Spiderman 2. On delivery of the product, the complainant found that the DVD was not enclosed, but instead a voucher which had to be redeemed within 7 days, with no guarantee of the DVD being in stock. The complainant considered the advertising to be misleading, since these conditions were not mentioned on the website. ASAI transferred the complaint under the cross-border procedure to the UK SRO, ASA. ASA’s investigations revealed that the advertiser was based in the USA, and consequently outside the remit of the self-regulatory system. Complaint not pursued, case closed.
Complaint (misleading) to the German SRO for misleading advertising, WBZ, from a German company concerning an advertisement for a Spanish company in a brochure featuring plugs. The advertisement claimed that the advertiser was TUV certified and quoted a certification number. The complainant maintained that the number quoted belonged to a German company and the advertiser had no right to it and should be stopped from using the reference WBZ transferred the complaint to the Spanish SRO, Autocontrol, under the cross-border procedure. Autocontrol considered the advertisement to be in breach of art. 14 (Truthfulness) of the Code of Advertising Practice, since the certificate referred to, had expired 1 ˝ years previously, and requested the advertiser to refrain from using the claim. Complaint upheld, case closed.
Complaint (misleading) from UK and Finnish companies to EASA, and the Finnish SRO, LTL,concerning a direct mailing from Switzerland featuring a business directory. The advertisement offered to place company information in a business directory and invited the recipient to verify the company details already printed on the form, and then to sign the response. The complainants believed that the mailing was misleading because it was not clearly stated that returning the signed form with approval of the company details, automatically placed an order. The complainants were consequently asked for payment. EASA transferred the complaint to the Swiss SRO, under the cross-border procedure. The CSL informed the complainants that the Cantonal Police of Lucerne had opened an investigation of the advertiser’s activities, and consequently CSL would not itself pursue the case. Complaints transferred to appropriate authority, case closed.
Complaint (misleading) to the EASA, from a UK company concerning a direct mailing from Spain featuring a business directory. The mailing invited recipients to confirm their company information printed on the form. However, by signing the form, the companies automatically ordered an advertisement in the Directory on Line. The complainants considered that the advertisement did not make it sufficiently clear that the signature constituted an order, and hence found it misleading. EASA transferred the complaint to the Spanish SRO, Autocontrol, under the cross-border procedure. Autocontrol noted that this advertiser continued to disregard the decisions of the Spanish court against its misleading advertising, and transferred the case to the court in Valencia. Case transferred to appropriate authority, case closed.
Complaint (unsolicited mail) to the UK SRO, ASA, from a UK consumer concerning a direct mail from Spain featuring pornographic publications. The complainant did not wish to receive such publications, which she found offensive. The complaint was transferred to the Spanish SRO, Autocontrol under the cross-border procedure. Autocontrol contacted the advertisers, who confirmed that somebody at the complainant's address appeared to have asked to receive their advertisements, but in view of the complaint, agreed to delete the address from their mailing list. Complaint upheld, case closed.
Complaint (offensive) to the German SRO for taste and decency issues, DW, from a German consumer concerning a press advertisement in the UK magazine ‘Safety at Sea’, featuring survival suits. The advertisement stated 'Only angels provide better protection', and showed a rear view of a naked woman with angel's wings. The complainant found the advertisement offensive on the grounds of religion and sex. DW transferred the complaint to the UK SRO, ASA, under the cross-border procedure. The ASA pointed out that art. 60.28 of the British Code of Advertising, Sales Promotion and Direct Marketing requires a complaint to be submitted within three months of the appearance of the advertisement. In this case the advertisement had appeared 16 months earlier, and the ASA could therefore not pursue the case. Complaint not pursued, case closed.
Complaint (offensive) to the Irish SRO, ASAI, concerning an advertisement in the in-flight magazine of the Spanish Volar Airlines featuring Calvin Klein perfume. The advertisement depicted two women licking the top of a bottle of Calvin Klein perfume. The complainant considered the advertisement sexually explicit and felt offended and embarrassed by it. The ASAI transferred the complaint to the Spanish SRO, Autocontrol, under the cross-border procedure. Autocontrol considered that the advertisement did not breach the advertising code, as it only expressed the idea of the attraction the perfume produces between the sexes and was unlikely to cause widespread or serious offence. Complaint not upheld, 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)