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the list Report No. 37– August to December 2006
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This report contains details of 52 cross-border complaints cases handled by the EASA’s cross-border complaints system and closed during the period August to December 2006. 49 of these cases concerned misleadingness, 1 concerned offensiveness, and 2 concerned illegality. The media in question are direct mail (47 cases), internet and emails (2 cases), press (2 cases) and TV (1 case).
N.B. 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, email 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 (country of destination). 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 to the Swiss SRO, which communicates the decision to the advertiser.
Offensiveness
Complaint (offensive) from an Irish consumer to the Irish SRO, ASAI, concerning a car advertisement broadcast on UK television. The complainant found the ad offensive as it showed a woman jumping off a bridge on to the roof of a speeding train. She then smashed a carriage window to swing inside the train. The ASAI transferred the complaint to the ASA (UK). The BACC (responsible for pre-transmission clearance) had placed a scheduling restriction on this advertisement to keep it outside children’s programming. The ASA considered the advertisement to be clearly in the style of an “action film”, not to be viewed in a literal sense and consequently unlikely to cause widespread offence or distress.
Complaint not upheld. Case closed.
1712 Caimanzone
Complaint (illegal) to the German SRO, WBZ, from a German consumer about the website www.caimanzone.de. on the grounds that
1) the website contained no details about the company (address) according to Art. 5 of the European E-Commerce Directive.
2) the website did not inform the consumer about the possibility of withdrawing from the contract within a ‘cooling off period’ (at least 7 days according to the European Distance Selling Directive). This is not in line with EU-legislation and is also in breach of German law (§ 6 Teledienstegesetz, § 312c BGB, § 4 Nr. 11 UWG).
The WBZ initially wrote to the advertiser’s mother company, based in Ireland, but received no reply. The German SRO therefore asked to Irish SRO ASAI to investigate. The complaint fell outside the remit of the ASAI, but the case was transferred to the Director of Consumer Affairs, who decided to investigate the case.
Case transferred to appropriate authority. Case closed.
Complaint (illegal) to the ASA (UK), from a UK consumer concerning an advertisement in the press featuring a lottery. The advertisement, in the Wall Street Journal, published in Belgium, offered a $1.000.000 prize to the winner. The complainant considered the lottery to be illegal. The ASA transferred the complaint to the Belgian SRO, JEP, under the cross-border procedure. The JEP contacted the Federal Public Service of Home Affairs who confirmed that this operation was unauthorised and therefore contrary to the law of 31/12/1851 concerning lotteries. The case was transferred to the Public Prosecutor.
Case transferred to authorities. Case closed.
Misleadingness
Complaint (misleading) to the BVP (France), from a French consumer concerning a direct mailing from Switzerland featuring clairvoyance. The mailing offered ‘good vibrations’ from the clairvoyant. The complainant found the advertisement misleading and illegal. The French SRO, BVP, considered the advertisement to be in breach of French Consumer Protection Regulations arts. L311-4 (missing information for credit payment), and L121-1 (misleading). The complaint was transferred to the Swiss SRO, CSL, under the cross-border procedure. The CSL informed the advertiser of the decision.
Complaint upheld. Case closed.
Complaint (misleading) to the ASA (UK), from a UK consumer concerning a direct mailing from Switzerland featuring “regenerative capsules”. The advertisement claimed that the capsules would help to get rid of wrinkles, and that “10 years could vanish from your face”. The complainant objected to the 'before' and 'after' photographs used to demonstrate the effect of the anti-ageing capsules, claiming that they had been electronically enhanced and were therefore misleading. The complainant was also concerned that the ad preyed on vulnerable people. The ASA considered that the mailing contravened arts. 3.1 (lack of documentary evidence), 6.1 (exploitation of lack of knowledge), 7.1 (misleading), 14.1 (details related to testimonials), 14.3 (testimonials must conform with the code), 50.1 (evidence of medical claims), 50.7 (rejuvenating signs of age must be substantiated), 50.24 (distinction between product and the way it is applied), and 50.25 (delay of ageing), of the UK Code and transferred the case to the Swiss SRO, CSL, under the cross-border procedure. The CSL informed the advertiser of the decision.
Complaint upheld. Case closed.
Complaint (misleading) to EASA from a Belgian consumer, concerning an e-mail from the UK featuring a lottery. The message declared the complainant to be the winner of the lottery. The complainant doubted that this was the case. EASA transferred the complaint to the UK SRO, ASA, under the cross-border procedure. Upon investigation, the ASA found that the advertiser was based in the USA and consequently outside its remit. The case was therefore not pursued.
Case not pursued. Case closed.
1411 Office Central des Comptes
Complaint (misleading) to the BVP (France), from a French consumer concerning a direct mailing from the Netherlands featuring a lottery. The complainant was declared the winner of the lottery, and was asked to pay a handling fee of €30 to obtain a prize of €7 000. The complainant doubted the veracity of the claims. BVP transferred the case to the Dutch SRO, SRC, under the cross-border procedure. Investigations revealed that the advertiser was based in Switzerland, so the complaint was transferred to the Swiss SRO, CSL. The BVP considered the mailing to be in breach of the French Consumer Protection Regulations.The CSL informed the advertiser of the decision.
Complaint upheld. Case closed.
Complaint (misleading) to the ASA (UK), from a UK consumer concerning a direct mailing from Switzerland, featuring a lottery. The complainant was declared to be the winner of the lottery, but doubted that this was the case. ASA transferred the complaint to the Swiss SRO, CSL, under the cross-border procedure. The ASA considered the advertisement to be in breach of arts. 27.4 (causing unnecessary disappointment), 34.1 (conditions of participation), 35.2 (overstating the chances of winning), 35.3 (claiming the consumer to be luckier than is really the case), and 35.4 (misleadingly implying a deadline for replies) of the UK Code. The CSL informed the advertiser of this decision.
Complaint upheld. Case closed.
Complaint (misleading) to the BVP (France), concerning a direct mailing from the Netherlands featuring a lottery. The complainant was declared to be a winner in the lottery, whereas it was only an invitation to participate, which the complainant found misleading. BVP transferred the case to the Dutch SRO, SRC, under the cross-border procedure. SRC ruled that the advertisement was in breach of art. 7 (misleadingness) of the Dutch Advertising Code and art. 2 and 3 of the Code for Sweepstakes (no conditions imposed on the recipient of a sweepstake / false expectations).
Complaint upheld. Case closed.
1574 L'Union des Industries de la Protection des Plantes
Complaint (misleading) to the Belgian SRO, JEP, from a Belgian environmental group, concerning a press advertisement promoting pesticides. The advertisement, which had appeared in various French magazines, explained the importance of pesticides for the quality of fruit and vegetables, and suggested that there was no risk in their use. The complainants maintained that some pesticides currently in use might not be entirely harmless, and referred to scientific evidence and recent legislation limiting the use of pesticides. JEP transferred the case to the French SRO, BVP, under the cross-border procedure. Ecological associations also took the case to the French courts, which rejected their attempt to ban the advertising.
Case transferred to judicial authorities. Case closed.
Complaint (Misleading) to the ASA (UK), from a UK company concerning a direct mailing from Finland featuring a business directory. The advertiser offered to place subscribers’ company information in the directory and invited the recipient 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 did not clearly state that returning the signed form automatically constituted an order. The complainant had subsequently been asked for payment. ASA transferred the complaint to the Finnish SRO, LTL, under the cross-border procedure. The LTL informed the ASA that industry complaints incurred a charge, and warned that the advertiser was very likely to be bogus and impossible to contact. The complainant decided not to pursue the case.
Case not pursued. Case closed.
1639 Secretariat Général des Gagnants
Complaint (misleading) to the BVP (France), from a French consumer concerning a direct mailing from Switzerland featuring a lottery. The mailing promised €450 to the first 1000 people to return their voucher, together with a handling fee of €5. In France, a prize cannot be made conditional on the payment of a participation fee, and the complainant therefore objected. The BVP considered the mailing to be in breach of arts L121-36 (participation fee) and L 121-1 (misleadingness) of the French Consumer Protection Regulations, and transferred the case and the decision to the Swiss SRO, CSL, The CSL informed the advertiser of the decision.
Complaint upheld. Case closed.
Complaint (misleading) from a French consumer concerning a direct mailing from Switzerland promoting a “miracle phial”. The consumer doubted the veracity of the claims and sent a copy of the mailing to the French consumer organisation UFC Que Choisir. This organisation transferred the complaint to the BVP. The BVP considered the mailing to be in breach of French law for lack of registration number of the company (art 72 Decret 30 Mai 1984), and of the Consumer Protection Regulations (art L121-1) for exaggerated claims likely to mislead the consumer. BVP transferred the case, with its decision, to the Swiss SRO, CSL, which informed the advertiser .
Complaint upheld. Case closed.
1700 Associated Newspapers Ltd
Complaint (misleading) to the ASAI (Ireland) from an Irish consumer, about an advertisement broadcast on the UK television channel ITV1, offering a free encyclopedia CD-Rom with the Mail on Sunday newspaper. The complainant bought the newspaper and found out she had to send a stamped envelope in order to obtain the CD Rom; she consequently challenged the claim that the offer was “free”. The ASAI transferred the case to the ASA in the UK under the cross border procedure. ASA did not uphold the complaint as Art 32.1 UK Advertising Code states "A free offer may be conditional on the purchase of other items. Consumers’ liability for costs should be made clear in all material featuring the offer. An offer should be described as free only if consumers pay no more than: a) the minimum, unavoidable cost of responding to the promotion, e.g. the current public rates of postage, the cost of telephoning up to and including the national rate or the minimum, unavoidable cost of sending an e-mail or SMS text message". The ASA wrote to the complainant, explaining that the advertisement did not breach the Code.
Complaint not upheld. Case closed.
1702 Centre de la Vie Saine / VEDA VITAL
Complaint (misleading) to the BVP (France) from a French consumer, concerning a direct mailing from Switzerland promoting a miracle pill. The complainant doubted the veracity of the claims. BVP considered the mailing to be in breach of French Commerce Regulations - art 72, 30/05/1984 Decree, as the advertiser was not registered in France. Moreover, the direct mail presented the product as a medical cure (with doctors’ testimonials), which the BVP considered to exceed the claims which could be made for a simple dietary supplement. The BVP transferred the case, with its decision, to the Swiss SRO, CSL, under the cross-border procedure. The CSL informed the advertiser of the decision. Complaint upheld, case closed.
Complaint (Misleading) to the EASA, from a Polish company concerning a direct mailing from Switzerland featuring a business directory. The advertiser offered to place subscribers’ company information in a business directory and invited the company 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 made clear that returning the signed form automatically constituted an order. The complainant had subsequently been chased for payment. EASA informed the complainant that the Cantonal and Federal authorities in Switzerland has opened proceedings against this advertiser.
Complaint transferred to appropriate authority. Case closed.
1687- 1688 – 1689 1691 1692 1693 16941695 1696 1697 1698 1699 1703, 1704 1705 1706 1714 1715 1716 1717, 1718, 1722 1723 1724 1725 1726 1728 1729 1730 1731 1732 1733 1734 1741 Construct Data Publishers
Complaints (misleading) to EASA, from 34 companies in Sweden (11), Ireland (1), France (1) and Israel (21) concerning a direct mailing from Austria featuring a business guide. The mailing invited the recipient to confirm information already held about the company but failed to make it clear that signing the form automatically constituted an order for an advertisement in the guide. The complainants considered the advertisement to be misleading. EASA transferred the complaint to the Austrian SRO, OWR, under the cross-border procedure. OWR noted that the advertiser had persistently disregarded the OWR’s decisions against its advertising, and therefore transferred the case to the appropriate authorities.
Complaints transferred to appropriate authorities. Case closed.