Who: The Advertising Standards Authority (“ASA”); The Comedy Club Ltd (the “CCL”); Leviathan Entertainment Limited (“Leviathan”)
When: 19 August 2015
Law stated as at: 1 September 2015
CCL has been left frowning after complaints were upheld concerning claims made in a sponsored search result, two websites and a flyer, each advertising the London Comedy Club. Leviathan, a competitor who runs the Comedy Carnival, challenged whether the following claims were misleading and capable of substantiation:
- “Each and every week we bring you acts that have won Awards”;
- “BUY TICKET 50% CHEAPER! … CLICK to GET at least 50% off ENTRANCE FEE”; and
- various ratings and quotes given by certain publications (including TimeOut and GQ).
Leviathan has the last laugh as the ASA doesn’t see the funny side of CCL’s claims
The ASA upheld all three aspects of the Leviathan’s complaint. Regarding the first two claims, the ASA noted that CCL failed to provide evidence of any awards received by the organisation or its performers, and did not demonstrate that consumers generally benefitted from a 50% discount.
In response to the third claim, although CCL did provide sources which quoted the reference, these were not sufficient. With the exception of one original quote, the sources provided by CCL were all third-party sites which had themselves copied quotes from the publications; CCL failed to provide evidence from the publications themselves. As such, the ASA did not deem the sources provided to constitute adequate substantiation evidence regarding the quotes. The ASA specifically stated in their decision that “examples of other websites using the same quotes were insufficient to support the press reviews used in the ads, and (we) therefore concluded that the ads were misleading.”
Why this matters:
The decision is unsurprising. Following decisions in March 2013 and November 2013, this is the third time in less than 3 years that the ASA has upheld a complaint against the CCL. The key takeaway point here is to do with substantiation: this should serve as a reminder that marketers need to hold documentary evidence from the original source which gave the quote being used in advertising materials. Evidence from third parties who have also used the quote is not sufficient.
Additionally, it is worth bearing in mind that, as a general rule when using testimonials, the CAP Code obliges marketers to hold contact details for the person, or organisation, that provides the testimonial or endorsement (rule 3.45) and that even if a quote is a genuine endorsement, it cannot be used if it is likely to be interpreted as factual, but is in fact incorrect or misleading (rule 3.47).