Background
The ASA received two complaints as to whether news items published on 28 September 2011 in the Daily Express and the Daily Star were marketing communications. The ASA Council considered that the news items were outside remit.
Summary of Council Decision:
Four issues were investigated in relation to two ads, all of which were Not upheld.
Ad description
A TV ad and a national press ad for The Health Lottery:
a. The TV ad, broadcast from 28 September stated "... choose five numbers and match any three balls to win a lovely fifty pounds ... match four balls and win a cheeky five hundred pounds. And if you match five balls in the Health Lottery, you win a whopping one hundred thousand pounds ...". On-screen text stated "... T&Cs, Game Rules & Procedures apply ...".
b. The national press ad, published on 15 October in the Daily Mail, was headed "7 times more likely to win our top prize*". Underneath text stated "Match any 5 balls. Win £100,000.". The asterisk in the headline linked to small print that stated "*Compared to the odds of winning the top prize of Lotto".
Issue
1. Six viewers challenged whether the claim "if you match five balls in the Health Lottery, you win a whopping one hundred thousand pounds" in the TV ad (a) was misleading, because they understood that the top prize was 'up to' £100,000.
2. One of the viewers also challenged whether the claims "choose five numbers and match three balls to win a lovely fifty pounds" and "match four balls and win a cheeky five hundred pounds" in ad (a) were misleading, because she understood the amount might vary.
3. One reader challenged whether the claim "Match any 5 balls. Win £100,000." in ad (b) was misleading, because he understood that the top prize was 'up to' £100,000.
4. Two readers challenged whether the claim "7 times more likely to win our top prize" in ad (b) was misleading and could be substantiated.
Response
1. & 2. The Health Lottery (THL) explained that the Lottery scheme was run as a fixed prize lottery game, where winners won one of three prizes worth £100,000, £500 or £50. They said the prizes were not shared and the amount did not vary, no matter how many people had the same winning lottery numbers. They said they had an insurance scheme to cover them if the money paid out was more than that taken in through revenue and they would therefore still be able to pay out the three prize amounts to all winners.
THL said, as explained in their terms and conditions, that they nonetheless reserved the right to adjust the prize pay-out in the exceptional circumstance that it exceeded £15 million in any one week. However, they explained that statistically the likelihood of that happening was just 0.0096% and they therefore believed that on-screen text referring viewers to the terms and conditions was sufficient to cover that unlikely possibility.
Clearcast said THL paid out at three tiered levels to all participants who matched the relevant number of balls drawn, and THL had insurance to finance those pay outs in all but the most unlikely circumstances. They said the likelihood of THL not being able to pay out £100,000 to players who matched five balls was statistically shown to be once every 200 years. Clearcast believed that, because there was no significant likelihood of that happening, it did not warrant adding on-screen text stating "prize funds may be reduced in exceptional circumstances", which might be seen to be contradictory and misleading to the main claim. Clearcast said they also considered using "up to" in the ad, but believed that it might misleadingly imply that the £100,000 would rarely be won when matching five numbers or that sharing the prize fund was the norm, which was not the case.
3. As with points 1 and 2 above, THL believed that small print explaining the rare chance that the top prize might be less than the advertised £100,000 was not needed in the ad and the text stating "Terms and conditions ... apply" was sufficient to cover that unlikely event.
4. THL said the intention of the ad was to allow consumers to judge their relative chances of winning the THL top prize compared to winning the Lotto top prize. They explained that the odds of winning the Lotto top prize were 14 million to one, and the odds of winning the THL top prize were 2.1 million to one. They said this was a mathematical calculation of 6.7:1 expressed as seven more times likely to win the top prize.
Assessment
1. Not upheld
The ASA noted THL was a fixed prize lottery and understood that contingency plans ensured that THL would be in a position to pay out the advertised prize amounts each week. We also understood that there was a 0.0096% chance that the top prize might be less than £100,000, but considered that, because the likelihood of that happening was so remote, it was unnecessary for the ad to state that the top prize was "up to" £100,000. We therefore concluded that the ad was unlikely to mislead viewers as to the amount paid out on winning the top prize.
On this point, we investigated the TV ad (a) 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),
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
3.12
3.12
Advertisements must not mislead by exaggerating the capability or performance of a product or service.
(Exaggeration), but did not find it in breach.
2. Not upheld
We understood that participants matching three balls or four balls would win £50 and £500 pounds respectively and that the amount did not vary, no matter how many other winners there were. We noted THL had insurance to finance those occasions when more prize money was paid out than that taken in through revenue. Because we understood that the amounts did not vary, we considered that the claims "choose five numbers and match any three balls to win a lovely fifty pounds" and "match four balls and win a cheeky five hundred pounds" were not misleading.
On this point, we investigated the TV ad (a) 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),
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
3.12
3.12
Advertisements must not mislead by exaggerating the capability or performance of a product or service.
(Exaggeration), but did not find it in breach.
3. Not upheld
As with point 1 above, because the likelihood of THL being unable to pay out the top prize was remote, we considered that it was unnecessary for the press ad (b) to state "up to" £100,000. We concluded that the ad was not misleading on this point.
On this point, we investigated the national press ad (b) under CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer 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 the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are 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),
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.
(Qualification) and
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
(Exaggeration) but did not find it in breach.
4. Not Upheld
We understood that five numbers had to be matched in order to win the THL top prize and six numbers matched to win the Lotto top prize and also noted the two lotteries paid out different top prize amounts. We understood that if the odds were based on winning £100,000 in both lotteries, or based on matching five numbers in the two lotteries then the odds were likely to be different to that quoted in the ad.
However, we considered that the claim "7 times more likely to win our top prize" and the qualifying small print was a clear reference to the chances of winning the top prize in the two lotteries and not the mechanics of the games or the amount likely to be won. We considered that the comparison was fair and concluded that consumers would not be misled about their chances of winning THL's top prize.
On this point, we investigated the national press ad (b) under CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer 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 the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
(Exaggeration) and
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
and
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
(Comparisons with identifiable competitors) but did not find it in breach.
Action
No further action necessary.
BCAP Code
CAP Code (Edition 12)
3.1 3.11 3.3 3.33 3.35 3.7 3.9
