ASA Adjudication on DSG Retail Ltd

Ad

A national press ad for PC World stated "IPOD IN YOUR CAR! ... JUST ARRIVED! £29.99 INC VAT". The small print stated "This product is a short range FM transmitter and may not be used in the UK without a broadcasting licence. Broadcasting licences are not normally available to consumers. This product may be operated without a licence in Germany, Poland, Iceland, Liechtenstein, Switzerland, Estonia and America ... The current legislation is under review ...".

Issue

The complainants believed that the ad was irresponsible, because it encouraged the public to break the law by using a product that was not legal to use in the UK without a broadcast license; not normally available to consumers. They further considered that it was misleading to state only in the small print that a license was required, because readers might miss this.

CAP Code (Edition 11)

Response

PC World asserted that, although the product was illegal to use in the UK without a license, the use of FM transmitters in the UK was expected to be legalised in autumn 2006 and they were giving their customers the chance to use the technology abroad before that time.  They said they consulted the Office of Communications (Ofcom) before selling the product; Ofcom confirmed to them that FM transmitters could be placed on the market in the UK under certain circumstances.  Those circumstances included the requirements that the packaging must state the countries where the equipment was intended to be used; the manufacturer must notify Ofcom before the product was placed on the UK market and the product must have a CE mark and relevant identification information.   PC World said they had complied with all those requirements.  Ofcom's website stated "Under European law, Ofcom cannot prevent the sale of radio equipment in the UK that fully complies with all the relevant EU directives, as indicated by the CE mark ... Manufacturers are required to mark the packaging of the equipment sold in the EU to notify consumers of restrictions on use".  PC World argued that they were encouraging consumers to comply with the law, not break it, because the ad stated that FM transmitters could not be used in the UK without a broadcasting license. PC World believed the text that explained that condition was sufficiently prominent and unlikely to mislead consumers.

Assessment

Upheld

The ASA noted Ofcom's advice to PC World and acknowledged that it was not illegal to sell FM transmitters in the UK, providing that certain regulatory requirements were adhered to.  We noted PC World's argument that they had complied with those requirements.  We also noted, however, it was illegal to use the product in the UK without a broadcasting license, which was not normally available to consumers.  We considered that that was a significant condition and that referring to it only in the small print was likely to mislead consumers, because small print was not prominent enough to make clear an important condition of that kind.  As the condition that a license was required was not prominent enough, we considered that the ad could encourage the public to break the law and was irresponsible.

The ad breached CAP Code clauses 2.2 (Responsible advertising) and 7.1 (Truthfulness).  We also investigated the ad under CAP Code clause 4.1 (Legality) but did not find it in breach.

Action

We told PC World to state prominently in future ads the requirement to obtain a broadcasting license for the product and the fact that broadcasting licenses were not normally available to consumers.  We advised them to contact the CAP Copy Advice team before advertising the product in future.

Adjudication of the ASA Council (Non-broadcast)