ASA Ruling on Nintendo of Europe GmbH, UK branch
Nintendo of Europe GmbH, UK branch
55–57 High Street
16 January 2013
Number of complaints:
A TV ad for the Nintendo Wii U games console included the claim "Say someone wants to watch TV when you're halfway through a game ... do both, and everyone's happy". The player was shown switching from playing on the TV screen to playing on the built-in screen of the GamePad controller.
The complainant, who believed that the option to switch gameplay to the GamePad controller would not be available on all games, challenged whether the ad was misleading.
Nintendo of Europe GmbH, UK branch (Nintendo) did not believe the ad was misleading. They said the ad showed the functional capabilities of the hardware including various examples of how the Wii U GamePad may be used in games to interact with the console. They said the Wii U console hardware did allow users to switch from playing games on their TV to playing on the GamePad, but that this was dependent on the feature being incorporated into the game's software and would obviously vary from game to game. They said the ad included other features of the Wii U that would also vary from game to game. They said the ad featured uses of the GamePad that consumers would understand would not be included in all games, such as shooting objects at the screen and using the GamePad to input a code. They said the game that featured in the ad when the claim "Say someone wants to watch TV when you're halfway through a game ... do both, and everyone's happy" was made included this feature. They said it was correct that some games would not include this feature but they had no control over how third-party software developers used the capabilities of their console. They did not believe that the ad required qualification as they did not believe the average consumer viewing the ad would believe that the feature was available on all games.
Clearcast said that when clearing the ad they received confirmation from Nintendo that for some games when in single player mode it was possible to continue play uninterrupted on the GamePad if the TV was switched to another channel. For other games there was a menu option to continue play on the GamePad. In their view the ad highlighted the capabilities of the new console and GamePad with certain games. They said there was nothing in the ad that implied all featured functions would be available on all games, as this would be entirely dependent on the games' publishers and not the console manufacturer.
The ad referred to a number of features of the Wii U console and GamePad, including being able to shoot at the TV using the GamePad, switching gameplay to the GamePad if someone else wanted to use the TV and using the GamePad to zoom in on targets, enter key codes and interact with the surroundings in the game. The ASA considered that it would be clear to consumers that many of these features would not be available in all games. However, we considered that the option to switch gameplay to the GamePad controller could be available on all games, and as this was a new console consumers would not have an awareness of whether this was something specific to individual games or a general feature of the console. We considered that, in this context, the ad should have made clear that this feature would not be available on all games. Because it did not, we concluded the ad was misleading.
The ad breached BCAP Code rules 3.1 and 3.2 (Misleading advertising) and 3.10 (Qualification).
The ad must not appear again in its current form.