Two TV ads for Phones 4 U promoted upgrades:
a. The voice-over said, "Listen up you lot. You can upgrade your phones at Phones4U." The ad featured a number of characters with a range of traits such as smelling of fish, keeping a lot of cats and wearing gilets. The voice-over indicated that they could all get upgrades saying "Upgrades for you and you and you at Phones4U." On-screen text stated "T&Cs apply".
b. The voice-over said, "Listen up you lot. You can upgrade your phones at Phones4U." A woman asked, "I'm scared of long-term commitment. Can I?" The voice-over replied, "I hear you lady. With our exclusive jump contract you could update your phone every 6 months ... Upgrades for you and you and you at Phones4U." On-screen text stated "T&Cs and exclusions may apply".
The complainant, who understood that upgrades were not available to customers on all networks, challenged whether the ads were misleading.
Phones 4 U Ltd (Phones 4 U) said the rationale behind the ad campaign that included these ads was to communicate to customers that it was possible to upgrade their handset at Phones 4 U. They said there was a common misconception that this could only be done with their existing network provider. They offered upgrades on the majority of network providers, even if the customer did not originally get the handset or contract from them. However, some networks such as Three and Tesco Mobile were not partnered with them, and so customers of these networks would not be able to upgrade with them. They said they made sure never to claim that "everyone" could upgrade with them and that during both ads the voice-over responded to questions from specific individuals, rather than making a universal claim. They said that in ad (a) "T&Cs apply" was shown clearly, as was "T&Cs and exclusions may apply" in ad (b). They said their website made it clear to consumers that upgrades were only available on some networks. They said that if a customer was on a network that they were not partnered with, it would be possible for them to upgrade to another network by switching provider or buying a SIM-free phone. They believed consumers would understand "upgrade" to refer to getting a new phone.
Clearcast said that when clearing the ad they made sure that no absolute claims that "everyone could upgrade" were made. They considered that the ad addressed a series of individuals with a range of factual and comical needs or concerns and that the voice-over made clear they could take advantage of the offer to upgrade at Phones 4 U. They did not think the ads implied that everyone could upgrade and believed that the text "exclusions apply" was sufficient to qualify the claim.
The ASA understood that the purpose of the ads was to address a myth that it was not possible to upgrade with Phones 4 U if you had not purchased your phone or contract from them. However, we considered that in addressing this, by using various comic characters asking if they could upgrade with them, the ads gave the impression that everyone could upgrade with Phones 4 U. We understood that for consumers who were not already with one of their partner networks they would have to switch networks to upgrade with them. We agreed that consumers would understand "upgrade" to refer to getting a new phone, but considered that they would not expect to have to change networks to do so. We considered, in the context of an ad that implied everyone could upgrade with Phones 4 U, the fact that upgrades were only available on certain networks was significant material information that should have been made clear. Ad (a) included the on-screen text "T&Cs apply" and ad (b) included the text "T&Cs and exclusions may apply". However, we did not consider these made clear that it was only possible to upgrade on certain networks. We concluded that the ads were misleading.
Ads (a) and (b) breached BCAP Code rules
Marketing communications must not materially mislead or be likely to do so.
Obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead.
(Misleading advertising) and
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualification).
Ads (a) and (b) must not appear again in their current form.