Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one Upheld.
Ad description
A 30-minute teleshopping ad, for a blemish treatment, viewed in August 2015 featured several American celebrities endorsing the product.
Issue
The ASA received complaints from two members of the public:
1. One complainant challenged whether the endorsements were misleading, because they believed that the celebrities were likely to have used the American formulation of Proactiv+, which contained an active ingredient that was not present in the UK formulation.
2. One complainant challenged whether the ad was misleading, because it did not make sufficiently clear that customers who purchased the product were signing up to a rolling monthly contract which renewed unless cancelled.
Response
1. Guthy-Renker UK Ltd stated that for regulatory purposes they did not sell the American formulation of Proactiv+ in the UK, but the European version instead. They confirmed that each of the celebrities featured in the ad was sent the European Proactiv+ products for them to use in advance of providing their endorsements and that they continued to send the products to them for regular use.
Guthy-Renker UK stated that when they prepared the ad for clearance, they obtained testimonial statements from all four celebrities and submitted signed copies. They believed that these statements confirmed that the celebrities had used the European Proactiv+ products. Furthermore, they provided supplemental statements from three celebrities which confirmed that they continued to regularly use the European Proactiv+ products and were all signed in October 2015. However, Guthy-Renker UK stated that they were unable to get a supplemental statement from one of the celebrities, but explained that they were in the process of removing that celebrity from their advertising as their contract with that celebrity had ended in December 2015.
Clearcast stated that they received the pre-production script for the ad on 2 July 2014 and was approved on 26 September 2014. During that time they also received four signed testimonials from the featured celebrities, which were signed between 17 July and 07 August. The ad itself, was approved on 1 October 2014.
Clearcast stated that the celebrities featured in the ad were sent the European Proactiv+ products for them to use in advance of supplying their endorsements, which they believed was confirmed in the celebrities’ testimonial statements. At the time of approval, Clearcast were content with the signed testimonials and confident that they were accurate and correct.
2. Guthy-Renker UK stated that the offer promoted in the ad was available through their “Proactiv+ Clear Skin Plan”. They stated that plan members would receive regular deliveries of the Proactiv+ products every 90 days unless they opted to cancel their membership, which they could do at any time.
Guthy-Renker UK stated that when the offer was first presented in the ad, the voice-over clearly stated that customers would receive a new supply of Proactiv+ every 90 days. They also believed that the voice-over and on-screen text made it clear that customers could cancel their supply of new products at any time.
Guthy-Renker UK emphasised that they did not lock customers into rolling monthly contracts, as there was no obligation to take further deliveries and no minimum orders applied. They stated that customers could always cancel at any time, with no further obligation to purchase Proactiv+ products. Furthermore, they offered a 60-day money-back guarantee on all returned products and deliveries, which they stated was mentioned numerous times in the ad – specifically when the offer was presented to consumers.
Guthy-Renker UK stated that they were willing to amend the ad, specifically at each point when the offer was made to viewers, making it clear that it was contingent upon consumers signing-up to ongoing shipments of the products.
Clearcast stated that the offer made in the ad was for an on-going supply of Proactiv+ products rather than a one-off payment for the items. They believed that this was made clear throughout the ad and that viewers were informed that they would receive a 90-day supply of the product for an ongoing monthly fee.
Clearcast stated the onus of cancelling an order was on consumers, which they believed had been made clear in the ad with the use of “Cancel anytime” both in the voice-over and on-screen text. Furthermore, they referred to the money back guarantee, stating that it allowed consumers who had not cancelled their next shipment of products to still obtain a refund.
Clearcast stated that they had discussed the use of the ad’s claim “cancel any time” with Guthy-Renker UK. They stated that Guthy-Renker were content to repeat this claim throughout the ad during each call to action so that the claim would be on screen for at least three separate occasions.
Assessment
Not upheld
1. The ASA acknowledged that for regulatory purposes, the ad was marketing the European formulation of Proactiv+ to UK consumers and not the American version. We noted the veracity of the celebrities’ testimonials was not being challenged, but only whether they were relevant to the Proactiv+ products available to the UK audience at which the ads were targeted.
We noted that the signed testimonial statements of all the American celebrities featured in the ad confirmed that they had received and used the European formulation of the products. We understood that the statement was an agreement that each celebrity would “regularly” use the products for a specified duration of time before providing an accurate testimonial based on their personal experience.
We noted that the ad included a voice-over that stated “The news is out. Now there’s a brand new clear skin solution that starts to work fast to end your breakouts you have today and keep working to prevent new ones … We’ll discover the exciting science that can give you control over your breakouts by getting rid of the blemishes you have today and helping to prevent new ones”. We considered that this suggested that once consumers’ blemishes had cleared, they would need to use the products continually and regularly to prevent any future breakouts. This was further expressed by the co-developers of the products, who stated “What we came up with is prevention. We designed the three steps in the Proactiv+ system to work inside your pores to get rid of the blemishes you have today and help prevent new ones from surfacing tomorrow”. Therefore, we considered that consumers would understand that the results seen and described in the ad were achieved through continuous and regular use of the products.
We noted that the first celebrity mentioned in the ad was described by the voice-over as, “These days [she] credits Proactiv+ with keeping your skin clear, gorgeous and red carpet ready”. Furthermore, towards the end of the ad, the same celebrity had stated “When I wake up in the morning my spots actually go down and all the irritation, all the redness is gone”. We considered that this suggested that the celebrity continued to use the products on a regular basis, which we acknowledged they had confirmed in their recently signed supplemental statement.
Further into the ad, another celebrity provided their endorsement for the products and stated, “Back when I was breaking out a lot I would wake up in the morning look in the mirror and look at all those zits that popped up overnight … But since I started using Proactiv+ everything changed. It not only controls blemishes better than anything I’ve ever used but also improves the quality of my skin at the same time. My skin is softer and brighter, it’s smoother, my pores look smaller, my tone is even …”. Towards the end of the ad, the celebrity further stated, “Proactiv+ not only clears up the breakouts that you have now but it also helps prevent future breakouts”. We considered that this suggested that the celebrity also continued to use the products on a regular basis, which we acknowledged they had confirmed in their recently signed supplemental statement.
The fourth celebrity who was mentioned in the ad was described by the voice-over as someone who “has struggled with breakouts since his teens”. The celebrity then provided his testimonial, stating, “It’s something that’s just been a lingering problem throughout my life … and I still deal with it to this day”. The voice-over then stated “Now with Proactiv+ he’s found a product that he not only uses but wants to speak out for”. We considered that this suggested that the celebrity also continued to use the products on a regular basis, which we acknowledged they had confirmed in their recently signed supplemental statement.
The third celebrity who provided their testimonial in the ad had stated, “It’s fighting all my breakouts …” and further into the ad they stated, “I’m trying everything under the sun … Now I use the new Proactiv+ and it is heaven. I’ve been getting so many compliments lately. My make-up artist has told me she’s never seen my skin better … Not only does it clear up my skin, it’s also very nourishing, hydrating, so it fights the breakouts … it’s fantastic”. We considered this suggested that the celebrity continued to use the products on a regular basis.
We noted that Guthy Renker UK was only unable to obtain a signed supplemental statement from this one celebrity, whereas the rest had confirmed that they continued to regularly use the European formulation. Furthermore, we noted that the wording of the third celebrity’s original statement was consistent with those belonging to the other three personalities; that they had regularly used the European formulation before they provided their endorsement.
Therefore, weighing the overall evidence, we considered that Guthy Renker UK demonstrated that the celebrities had used the European Proactiv+ products available to the UK audience and concluded that the testimonials were not misleading.
We investigated the ad under BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading Advertising),
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
3.45
3.45
Testimonials or endorsements used in advertising must be genuine, unless they are obviously fictitious, and be supported by documentary evidence. Testimonials and endorsements must relate to the advertised product or service. Claims that are likely to be interpreted as factual and appear in advertisements must not mislead or be likely to mislead.
(Endorsements and Testimonials) but did not find it in breach.
2. Upheld
We noted that the presentation was 30 minutes long and in the first minute, featured on-screen text informing viewers how they could place their order and stated “ORDER NOW! PROACTIV.CO.UK”. Shortly after this, the celebrity host stated “So stay with us for all this plus your best opportunity to try Proactiv+ with a special introductory offer you don’t won’t to miss”. At approximately 12 minutes into the presentation, viewers were introduced to all three individual products that were included in the offer, along with information on how they could place their order with the on-screen text stating “PROACTIV.CO.UK FREE PHONE 0808 …”.
We noted that only after almost 14 minutes into the presentation, were viewers informed of the products introductory price and that they would be committing to a rolling monthly contract, which renewed unless cancelled. At this point in the presentation, the voice-over stated “… For the low introductory price of only £19.99. When you order you can lock in this low price. Every 90 days you’ll receive a new supply of Proactiv+ for only £19.99 a month. You can cancel at any time”. Throughout this time in the presentation was on-screen text that stated, “LOW INTRODUCTORY PRICE ONLY £19.99 + £4.95 P&P Lock in low introductory price! Receive a 90 day supply only £19.99 a month CANCEL ANYTIME GUARANTEED!” We noted that the 60-day money-back guarantee was then referred to shortly after this in on-screen text and by one of the celebrities endorsing the products.
However, we noted that the rolling monthly contract was not mentioned again even though the presentation continued to refer to the products’ “special introductory offer” as well as the 60-day money back guarantee. Furthermore, the ordering hotline as well as the website address for online orders was continuously shown in on-screen text.
Therefore, because details of the rolling monthly contract had only been disclosed on one occasion and at almost halfway through the presentation, we concluded this had not been made sufficiently clear in the ad and concluded that it was misleading.
Investigated under BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
3.2
3.2
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
and
3.3.5
3.3.5
the arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect
(Misleading Advertising),
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.18
3.18
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product or service depicted in the advertisement.
(Prices).
Action
The ad must not appear again in its current form. We told Guthy-Renker UK that their advertising should make sufficiently clear that consumers would be committing to a rolling monthly contract, which renewed unless cancelled.
BCAP Code
3.1 3.10 3.18 3.2 3.3.5 3.45 3.9
