In a recent decision to uphold a complaint about misleading use of “as seen on TV” in advertising, the Advertising Standards Authority has revised its interpretation of the claim and “raised the bar.” Hannah Willson reports.
Who: Committee of Advertising Practice
When: April 2012
Law stated as at: April 2012
There has been an about-turn for advertising using 'As seen on TV' claims by the Advertising Standards Authority ("ASA") in a recent adjudication against Ergoflex Limited.
Up to this case, it had been thought that "As seen on TV" could be used in press ads for a product if it could be shown that ads for the same product had previously appeared on TV. This principle seemed to have been established in the 2010 ASA case involving national press advertising for vibrating footrests by Sasaki International Ltd.
In contrast, the latest adjudication against Ergoflex by the ASA has turned the tables 180°.
In this case, the use of "As seen on TV" was on websites of mattress retailer Ergoflex. The sites also used "As seen in" as in "As seen in The Mail on Sunday, the Telegraph, The Observer, the Daily Mail, House Beautiful, The Sunday Times, 4 Homes and Channel 4."
When these claims were challenged, Ergoflex produced copies of pages in the listed publications showing their mattresses. All of these appearances except for that in "House Beautiful" magazine, however, were paid for by Ergoflex.
The advertiser also produced a letter from the producer of a contest broadcast on Channel 4. This asked Ergoflex to donate a mattress to be used as a prize for a contestant.
Other evidence was by way of notification to Ergoflex from various Channel 4 programme production entities that their mattresses had apparently appeared in one or more programmes.
The ASA decides on "as seen in" referring to press appearances
In the adjudication the ASA first looked at the "as seen in" references to various newspapers and magazines. The regulator considered that consumers would understand an 'as seen in' claim to imply an editorial decision was taken by the relevant publisher to feature the products in question.
Since this applied to none of the relevant appearances except for that in "House Beautiful", the ASA held that since consumers would regard the "as seen in" references as indicating an editorial decision to feature Ergoflex products, thus constituting an independent endorsement of the product, its use in relation to the paid-for appearances was misleading.
This decision therefore changes the position from that indicated by Sasaki, which accepted that previous paid-for ads for the product in question justified use of "As seen on."
What about "As seen on TV"?
Turning to the use of "as seen in… Channel 4" and "as seen on TV," it did seem from the evidence that the relevant decisions to feature Ergoflex products were editorial decisions by the programme makers. There was also mention of Ergoflex in a list of featured brands on the website of the Channel 4 programme "This Morning."
However, the ASA had seen no actual evidence that the Ergoflex mattress advertised in the challenged ads was specifically referenced during any Channel 4 programme.
In light of this and the fact that no mattresses appearing in the referenced Channel 4 programmes were readily identifiable as Ergoflex products, the ASA again held that the use of "as seen in Channel 4" and "As seen on TV" were misleading.
This was because again, the ASA considered that consumers would understand "as seen on TV" to indicate that the makers of the programme had taken an editorial decision to feature the product, thereby constituting an independent endorsement.
Consumers would also believe that the product was specifically referenced and readily identifiable in the programme in question.
The ASA therefore concluded that the ad breached the CAP Code for being misleading (rule 3.1) and for lacking the required substantiation (rule 3.7) and it must not be shown in the same form again.
Why this matters:
This does appear to be a rather harsh decision given the previous decision in Sasaki where paid-for advertising was sufficient to substantiate an "As seen on TV" claim.
Ergoflex argued that the use in a Home makeover programme of its memory foam mattress, without specific mention during the programme but specific mention on the Channel 4 website was sufficient substantiation to satisfy Cap Code Rule 3.7. But this did not wash with the ASA.
Therefore, if you are looking to use an 'as seen' claim, be it for news print or TV, the following must apply to the previous appearances in the relevant media:
• the product was specifically referenced and readily identifiable as your product;
• there was no payment for the product to appear; and
• there was an editorial decision by the relevant producers to include the product.
Clearly, therefore, paid-for product placement under the recently introduced regime allowing this, will not qualify!