Who: Advertising Standards Authority (“ASA”), Timeshare Solutions Ltd, Essex Pamper Parties, The Hospital Medical Group Ltd
When: August – September 2015
Law stated as at: 13 October 2015
The UK’s advertising regulator the ASA has had a recent run of adjudications on advertisers’ use of testimonials. In the three examples below (which cover adverts on TV, social media and the internet) the advertiser fell foul of the rules each time and was told to withdraw their advert or testimonial by the ASA.
- Timeshare testimonials
Background. The first adjudication concerns Timeshare Solutions Ltd: a company offering assistance to people wanting to exit holiday timeshare contracts. KwikChex Ltd, part of the “Timeshare Task Force initiative”, asked the ASA to investigate whether testimonials on Timeshare Solutions’ website were genuine. The testimonials in question were apparently word-for-word the same as testimonials appearing on an unrelated company’s website under different customer names.
The advertiser’s response. The ASA reports that Timeshare Solutions spoke to them on the phone. The advertiser claimed that they could understand the similarities between the testimonials and that this was due to them being in the same industry as the other company. In a second call, Timeshare Solutions said that they were not sure if they still had the original testimonials as these were provided in 2014, but they still had the contact details for the people in question and could confirm that these people had used their service.
No evidence provided. In a short adjudication text, the ASA found that the testimonials on the advertiser’s site were misleading as the advertiser did not provide the ASA with the original testimonials, the contact details of the people who had given them or supporting documentary evidence to demonstrate that the details were genuine, as is required under Rule 3.45 of the CAP Code. The advertiser was therefore told that the testimonials must not appear again and the complaint was upheld.
- Pamper party plaudits
Background. The second adjudication was against Essex Pamper Parties (“EPP”), a business which organises parties at which guests can receive various day spa or beauty treatments. EPP has a Facebook Page for its services. On this page, a Facebook user had posted two testimonials giving the business a five star review and making a number of positive comments about the party they had experienced.
Unfortunately, this garnered a complaint from an individual who told the ASA that the Facebook user in question was in fact the owner of EPP and that as such they didn’t think the reviews were genuine.
The advertiser’s response. In its response to the ASA, EPP insisted that the reviews were in fact genuine. It does not appear to have disputed that the poster on Facebook was the owner of the business, but explained to the ASA that she had posted the reviews on behalf of the customers involved. Based on the report, it does seem that this advertiser appears to have engaged with the ASA to some extent and amended the posts on Facebook to identify the names of the customers who gave the original testimonials. It also provided the ASA with email copies of the original feedback from customers.
Not enough evidence provided. However these steps were not enough to satisfy the regulator, which considered that the testimonials were still misleading as it was unable to verify that the email addresses related to real individuals with a connection with the advertiser. The advertiser did not provide further contact details for the customers (such as a business or home address) nor any additional information such as the customers’ ordering history, which could have demonstrated that the reviews (and the customers) were genuine.
As such the advert failed under both Rule 3.1 of the CAP Code (the general rule that advertising must not be misleading) and Rule 3.45 of the CAP Code, which states that “Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it.” The advertiser was required to remove the testimonials.
- Regrowth reviews
Background. A month earlier, The Hospital Medical Group Ltd’s business Ziering Hair Transplant Clinic (“Ziering”) was also told by the ASA to pull some of its claims following a complaint about a TV advert. The advert showed three men with thinning hair describing their negative experience of hair loss, followed by the line “Then a friend told me about hair transplant surgery from Ziering”. The second part of the ad showed the same men whose hair showed significant signs of regrowth, with a voiceover describing the positive aspect of the transplant.
A complainant didn’t think the before and after comparisons of hair regrowth were genuine, so challenged whether the ad was misleading to the ASA.
The advertiser’s (and Clearcast’s) response. Ziering’s defence to the ASA was that the ad was a visual representation of hair transplant surgery, and encompassed the thoughts and feelings of actual patients after surgery. Ziering claimed that it was not exaggerating the effects. It claimed to have results and testimonials on its website to back up its claims.
Clearcast, responsible for pre-screening all TV ads prior to broadcast, said that it was clear that the ad was not a genuine testimonial, and they were satisfied that the ad represented the experience a consumer would have and the results that had been achieved. They did not consider the ad overpromised, as, among other things it made clear that the process could take a long time (four months) and that patients might need more than one procedure to achieve better coverage. Clearcast had also taken advice from a consultant, and held a document from Ziering stating that the ad was not exaggerating the effects, which referred to the International Society of Hair Restoration website, and another document outlining the transplant procedure.
Not testimonials, but testimonials not enough to support claims. The ASA acknowledged that the treatment of the ad was such that a viewer would be unlikely to see it as a testimonial, as the viewers would be unlikely to perceive the actors as genuine customers of the clinic. Instead it found that the ad was therefore depicting the type of results that the average customer was likely to receive. Unfortunately, as the advertiser had not provided robust evidence to show that the results in the ad were possible, the ad was misleading and breached the BCAP Code. Testimonial evidence on the Ziering website was not sufficient to support the claims made, and, in any event, the fact that the viewer was only given a link to the website at the end of the ad meant that this didn’t adequately clarify the achievable results to viewers. The ad was found in breach of BCAP Code Rules 3.1 (Misleading advertising), 3.9 (Substantiation), 3.12 (Exaggeration) and 3.45 (Endorsements and Testimonials).
Why this matters:
Robust substantiation. In all three adjudications, the advertiser’s defence failed to some extent because they did not have robust substantiation for their claims. In particular, if using testimonials, advertisers should make sure that they comply with Rule 3.45, which requires marketers to hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine and hold contact details for the person who gives it.
The Pamper Party adjudication continues the ASA’s previous position that unverified email addresses alone were not sufficient to demonstrate that a testimonial was genuine. The ASA instead indicated that the advertiser should also have been willing to produce evidence of the order history for the customer that provided the testimonial. This is in line with a previous adjudication where the ASA found that copies of the original e-mails containing testimonials from a customer, the address and the ordering history of a customer would be sufficient (although the regulator is of course not bound by its own previous decisions).
Testimonials not substantiation. Looking at testimonials from another angle, the Ziering adjudication is a good reminder that testimonials themselves will not be adequate as substantiation for advertising claims, a position in line with CAP’s AdviceOnline guidance on Substantiation at the date of this article.
Don’t review yourself. Although it was not specifically raised in any of the above adjudications, advertisers should also bear in mind the prohibition on pretending to be a consumer in Rule 2.3 of the CAP Code. Advertisers should steer well clear of writing their own testimonials (so-called “astroturfing” – creating the impression of fake grassroots support) as this is not only a breach of the CAP Code, but likely to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (with potential criminal penalties of unlimited fines and up to 2 years imprisonment) if the advertiser is found to be “falsely representing [itself] as a consumer” to promote a product.
Get permission. Finally, with very few exceptions, advertisers must get written permission from the person or company giving the testimonial in order to make use of it under Rules 3.45 and 3.48 of the CAP Code.