Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
A TV ad for Speedy Cash. Voice-over stated, "... those pesky unexpected bills ... A flex loan from Speedy Cash could help take the weight off your shoulders ... unlike some payday loans, if you borrow say £100 with a flex loan, you pay just £22.60 in monthly interest." Text shown in white against a moving but primarily pale background at that point stated "Representative Example, Borrow £100 for 30 days and make a single repayment of £122.60. Interest is charged and applied daily at the rate of 75p per day, per £100 borrowed, equating to an annual rate of 275% (fixed). 1373.8% APR representative". The on-screen text then changed to "Loans subject to status and affordability. Applicants must be over 18. T&Cs apply". The background at that point was mostly blue or brown and the voice-over stated, "... just £22.60, versus as much as £29!"
The ad featured a man standing beneath a sign stating "UNEXPECTED BILLS" who was struggling to lift weights, whilst an actor in a kangaroo suit standing beneath the sign "SPEEDY CASH FLEX LOANS" was able to lift his above his head easily. The voice-over was in the style of a conversation, with the characters affecting a grandiose manner of speaking, using terms such as "I say", "Oh, blast!" and "wizard!". A short jingle played at the end of the ad.
Issue
1. The complainant challenged whether the on-screen text was legible.
The ASA challenged whether:
2. the APR was displayed with sufficient prominence; and
3. the ad was irresponsible, because it trivialised the nature of the product advertised.
Response
1. SRC Transatlantic Ltd, t/a Speedy Cash (Speedy Cash), said on-screen text was displayed in the ad for a period of 25 seconds. The text showing the representative example was shown for a continuous period of 16 seconds, which was over half the duration of the ad and significantly longer than required by industry guidance. They noted that the white text appeared against coloured backgrounds, including blue backgrounds, and considered that the guidance suggested such colour combinations were likely to be acceptable. They also noted that a drop-shadow had been used to highlight the font. They acknowledged that industry guidance recommended that on-screen text be placed on an opaque block where the presence of a moving background might serve to distract viewers. They stated, however, that both they and Clearcast had considered that the on-screen text in the ad was sufficiently clear and legible, because of the manner and style of its presentation, to enable an interested viewer making some positive effort to read all of the text, without the need for an opaque background. Speedy Cash said they would nevertheless be willing to make changes to the presentation of the on-screen text in order to improve its prominence and legibility if that were deemed necessary.
Clearcast said that in considering the legibility of the on-screen text in the ad they had given weight to the fact that both sets of text were displayed for longer than required by industry guidance; the first was shown for 17 seconds and the second for 8.3 seconds. They noted that the guidance recommended a longer hold duration for text which made up more than three full-length lines. They said they did not consider the on-screen text containing the representative example in the ad to fall into that category, because the first and fourth lines did not extend as far as the second and third and were therefore not "full-length". However, they pointed out that the text was in fact shown for a period of time exceeding even the longer recommended duration.
2. Speedy Cash stated that the representative APR (RAPR) was displayed with sufficient prominence in the ad, as part of the representative example shown in on-screen text. They noted that the ad stated an amount relating to the cost of the credit, which under the Consumer Credit (Advertisement) Regulations 2010 ("the Regulations") constituted a trigger requiring the inclusion of a representative example, including the RAPR, with greater prominence than the trigger. They also noted that the Regulations required that each element of the representative example be presented together with equal prominence.
Speedy Cash stated that determining prominence was a subjective issue, but that guidance produced by the Office of Fair Trading on a previous version of the Regulations implied that consideration should be given to the question of whether information was presented in such a way as to be likely to be seen first and to the period of time for which information was presented on screen. Speedy Cash said the representative example, including the RAPR, appeared on screen before any triggers requiring the inclusion of either the representative example or the RAPR were given, and was shown for a long continuous period, including at times when no triggers were present. They described the text as being written in a large, bright font highlighted by drop-shadow and positioned in the middle of the screen. They considered that they had satisfied the prominence requirements for the representative example (including the RAPR) imposed by the Regulations because the viewer's attention would be drawn to the on-screen text, which was the focal point of the screen, both before and during the points where triggers were given.
Clearcast said they had sought strong assurances from Speedy Cash's legal representatives that the ad would be fully compliant in respect of the prominence requirements. They provided a copy of a letter from the legal representatives which confirmed that the ad was compliant with the Regulations, in particular because it included a representative example pursuant to the triggering provisions, and because the representative example contained the correct information and was presented in accordance with the requirements of the Regulations. They also provided a copy of correspondence sent by the legal firm to Speedy Cash during the development of a number of television ads, which demonstrated that issues concerning triggering information and prominence of the RAPR and representative example were considered before the final ads were produced.
3. Speedy Cash did not comment on this point.
Clearcast said the ad made clear throughout that the service offered by Speedy Cash should only be considered in an emergency situation. They pointed out that the ad referred to "unexpected bills" and times when consumers felt "weight" on their shoulders, which they felt indicated that the service advertised was a financial option that should not be taken lightly. They further stated that the voice-over discussed borrowing a relatively small amount of money (£100) which might reasonably be spent on an unexpected bill and emphasised the level of commitment required by the viewer in repaying the loan, including by explicitly stating "£22.60 in monthly interest". That ensured that the viewer would understand how much money they would need to pay back on the loan.
Clearcast acknowledged that the imagery used in the ad had a playful element, but considered that that went no further than to highlight the perceived differences between the service advertised and other payday loans providers, with the unexpected bill being depicted as a weight requiring some management on each side of the divide. They considered that all the elements of the ad, when taken together, ensured that the ad did not trivialise the nature of the product being advertised and was not irresponsible.
Assessment
1. Upheld
The ASA noted that the on-screen text throughout the ad was presented in white font against a moving background. The background changed frequently, but whilst the representative example was shown was often partially or completely a beige colour. The predominant background colour, whilst the text "Loans subject to status and affordability. Applicants must be over 18. T&Cs apply" was displayed, was blue.
The BCAP Code required qualifying information to be presented clearly, with the aim being to achieve a standard of legibility that would enable an interested viewer, who made some positive effort, to read all text. In addition, the Consumer Credit (Advertisements) Regulations 2010 ("the Regulations"), with which the Code stated that credit ads must comply, required that ads were easily legible. We considered that the existence of a moving background behind text was likely to be distracting to viewers and impede their ability to read on-screen text, if it were not presented against a single-colour opaque block. We were also concerned by the use of a white and beige colour combination for the on-screen text and background, which we considered was in general likely to prove difficult to read, even where a drop-shadow was used.
We considered the length of time for which both sets of text appeared on-screen. The first set, which contained the representative example, was shown for 17 seconds, which we noted exceeded the recommended hold duration given in industry guidance. However, we considered that, because the background was not static and, further, was largely made up of a colour providing little contrast to the text, the additional time was insufficient in this case to ensure that the text was clear and easily legible.
In relation to the second set of on-screen text, which stated "Loans subject to status and affordability. Applicants must be over 18. T&Cs apply", whilst the background was not entirely static, we noted that sudden changes of scenery were much less frequent and the predominant background colours against the white text were blue and brown. It was also shown for longer than suggested by industry guidance. We considered that all three of those factors combined were sufficient to ensure that viewers would be able to easily read the text.
Although we were satisfied with the presentation of the second set of on-screen text, we considered that the moving background and colour combination between the background and the first set of text were likely to distract viewers and make it difficult to read the information, despite the fact that it was shown for a period exceeding the recommended hold duration for on-screen text. On that basis, we concluded that that set of on-screen text was not sufficiently legible and breached the Code.
On that point, the ad breached BCAP Code rules
1.3
1.3
Advertisements must comply with the law and broadcasters must make that a condition of acceptance.
(Compliance),
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),
3.11
3.11
Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
. The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
(Qualification) and
14.11
14.11
The advertising of unsecured consumer credit or hire services by consumer credit businesses or consumer hire businesses and / or credit brokering businesses or related credit services, such as debt counselling or debt adjusting is acceptable only if the advertiser complies with the financial promotions requirements imposed by FSMA and the FCA's rules set out in Chapter 3 of CONC.. The requirements for financial promotions set out in Chapter 3 of CONC do not apply: (a) where the credit is available only to a company or other body corporate (such as a limited liability partnership); (b) where a financial promotion is solely promoting credit agreements or consumer hire agreements or P2P lending agreements for the purposes of a customer's business; (c) to a financial promotion to the extent that it relates to qualifying credit or (d) it falls within the definition of an excluded communication as set out in the FCA's handbook. If the applicability or interpretation of these rules or provisions is in doubt, advertisers may contact the FCA. The FCA does not check financial promotions for compliance with the CONC rules before they are published. Such advertisements that involve distance marketing must also comply with the Financial Services (Distance Marketing) Regulations 2004 (as amended). Other distance-marketing financial advertisements are covered by the FCA Handbook.
(Lending and credit).
2. Upheld
According to the Regulations, credit ads which included a rate of interest or an amount relating to the cost of the credit should also include standard information by means of a representative example, and that representative example should be of greater prominence than the trigger. We noted that the voice-over in the ad stated "£22.60 in monthly interest" which, because it was an amount relating to the cost of the credit, triggered the requirement for the inclusion of the representative example with greater prominence.
The Regulations further required that credit ads specify the RAPR if they indicated in any way that any of the terms on which credit was available was more favourable than corresponding terms applied in any other case or by any other creditors. Again, the RAPR should be included with greater prominence than any such indication. The ad contained claims in the voice-over, which we considered were triggers of that type: "unlike some payday loans" and "just £22.60 versus as much as £29". However, we noted that the RAPR formed part of the standard information included within the representative example, and that where a representative example was given in an ad it was necessary under the Regulations to present each element of that example together, with equal prominence. We therefore understood that the ad, because it contained triggers for the inclusion of both a representative example and the RAPR, should have included a representative example (containing the RAPR) with greater prominence than any of the triggering claims.
The triggers "£22.60 in monthly interest", "unlike some payday loans" and "just £22.60 versus as much as £29" were included in the voice-over of the ad, whilst the representative example featured in on-screen text. Although we noted that the ad should be taken as a whole, we considered that information given in a voice-over would generally be seen by consumers as being more prominent than on-screen text at the bottom of the screen, and that on-screen text at the bottom of the screen was therefore unlikely to be sufficiently prominent if the triggering information was given in the voice-over. We also noted that the representative example was not shown in the ad at the point at which the voice-over stated "just £22.60 versus as much as £29", or at any point thereafter, and that the voice-over claim "just £22.60" was given added emphasis in the ad because it was repeated. Furthermore, for the reasons outlined at point 1 above, we considered that the on-screen text containing the representative example was insufficiently legible. For those reasons, we concluded that the RAPR, as part of the representative example, was not given greater prominence in the overall presentation of the ad than the triggering information in the voice-over.
We further noted that the text featuring the representative example included the statement "Interest is charged and applied daily at the rate of 75p per day, per £100 borrowed". We understood that that was not part of the standard information needing to be included within a representative example and, because it was itself a trigger requiring the inclusion of the representative example, should have been less prominent. On that basis, we considered that the representative example was insufficiently prominent in respect of the on-screen text "Interest is charged and applied daily at the rate of 75p per day, per £100 borrowed", as well as the triggering information in the voice-over.
Because we considered that the representative example, which included the RAPR, was insufficiently prominent with regard to triggers in both the voice-over and on-screen text, we concluded that the ad breached the Code.
On that point, the ad breached BCAP Code rules 1.3 1.3 Advertisements must comply with the law and broadcasters must make that a condition of acceptance. (Compliance) and 14.11 14.11 The advertising of unsecured consumer credit or hire services by consumer credit businesses or consumer hire businesses and / or credit brokering businesses or related credit services, such as debt counselling or debt adjusting is acceptable only if the advertiser complies with the financial promotions requirements imposed by FSMA and the FCA's rules set out in Chapter 3 of CONC.. The requirements for financial promotions set out in Chapter 3 of CONC do not apply: (a) where the credit is available only to a company or other body corporate (such as a limited liability partnership); (b) where a financial promotion is solely promoting credit agreements or consumer hire agreements or P2P lending agreements for the purposes of a customer's business; (c) to a financial promotion to the extent that it relates to qualifying credit or (d) it falls within the definition of an excluded communication as set out in the FCA's handbook. If the applicability or interpretation of these rules or provisions is in doubt, advertisers may contact the FCA. The FCA does not check financial promotions for compliance with the CONC rules before they are published. Such advertisements that involve distance marketing must also comply with the Financial Services (Distance Marketing) Regulations 2004 (as amended). Other distance-marketing financial advertisements are covered by the FCA Handbook. (Lending and credit).
3. Not upheld
We noted that the ad primarily focused on the credit product as being of interest to those who had received unexpected bills, and considered that it did not go so far as to imply that a short-term loan should be taken out for frivolous reasons, or to encourage irresponsible spending on non-essential items. We considered that both the tone of the voice-over and the portrayal of the actor in the kangaroo suit lent the ad a light-hearted air, which was further enhanced by the short jingle at the end of the ad. However, although the tone of the ad was upbeat, we were satisfied that the information about the loan was presented in a responsible manner and that the overall effect was not to trivialise the nature of the product advertised. On that basis, we concluded that the ad was not irresponsible.
On that point, we investigated the ad under BCAP Code rule 1.2 1.2 Advertisements must be prepared with a sense of responsibility to the audience and to society. (Social responsibility), but did not find it in breach.
Action
The ad must not appear again in its current form.
