An ad for KMC X10SL bicycle chains pictured and quoted Swedish cyclist Emma Johansson, but had she consented to this? Ms Johannson’s management team thought not and complained to the Advertising Standards Authority. Omar Bucchioni joins the peloton.
Topic: People in advertising
Who: The ASA and KMC Chain Europe BV
Where: Advertising Standards Authority
When: 3 February 2010
Law stated as at: 26 February 2010
What happened:
The Advertising Standards Authority (ASA) received a complaint from Swedish female cyclist Emma Johansson’s management team in relation to an advert, carried in a specialist cycling magazine, for bycycle chains.
The ad was headlined “KMC X10SL Gold” and showed an image of a cyclist winning a race while text stated “The light weight champion!”. The ad pictured Johansson and stated that she “chooses” the KMC X10SL Gold chain”. The ad apparently quoted her as saying: ‘Details makes [sic] the difference between the podium or nothing. KMC is the most innovative in chain technology and makes the difference with their X10SL Gold; optimal shifting performance and its extreme light weight. KMC Chains are simply the best’”.
Emma Johansson’s management team said that:
a) the testimonial was not genuine: and that
b) she had not endorsed the chains
What did KMC Chain Europe say in its defence?
KMC Agencies Ltd (KMC) said they had sponsored the Red Sun Cycling team that Emma Johansson belonged to and that she was pictured in the ad riding with that team and using a KMC gold chain. They said Emma had been part of the Olympic AA-Ladies Cycling team who had also been sponsored by KMC.
What did the ASA make of all of this?
The ASA ruled that KMC had not demonstrated that the testimonial in the ad was directly attributable to Emma Johansson or that she had given permission for her image or name to be used and concluded that the ad was likely to mislead.
The ASA ordered the company not to use the ad again, and told KMC to ensure that it had people’s approval before claiming that they endorsed its products.
Why this matters:
All in all, it did not go too badly for KMC. In 2002 motor racing driver Eddie Irvine was awarded £25,000 (by arguing that that was his minimum fee for endorsements) in damages for passing off by the High Court in a case which emphatically confirmed that celebrities have the right to control the use of their name and/or likeness in apparent product endorsements.
These days, for a false endorsement claim, one could also potentially be prosecuted for a “misleading action” under the Consumer Protection from Unfair Trading Regulations of 2008 (the CPRs).
By way of a reminder, an advert could amount to a “misleading action” if “its overall presentation in any way deceives or is likely to deceive the average consumer” in relation to “any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product”.
In this case, KMC apparently escaped with a “complaint upheld” finding, although given its apparently heavy involvement with Ms Johannson’s team, one can perhaps sympathise a little with KMC, who were clearly under the impression that their sponsorship contract granted more usage rights than was in fact the case.
For more information, please see here.
