Background
Summary of Council decision:
Three issues were investigated, all of which were Not upheld.
Ad description
An interactive video on the website www.outofthedark.tv showed different scenarios of a cyclist riding home though a city at night to promote a reflective jacket. In one scenario, the cyclist was wearing a non-reflective jacket. In a second scenario he was wearing the advertiser's reflective jacket. Viewers were able to click and hold an on-screen button to keep the reflective jacket on, or to let go of the button to see the cyclist, following the same route, but wearing the non-reflective jacket. At the end of the ad, if viewers were not holding the button, the cyclist (in the non-reflective jacket) was seen being struck by a car emerging from a junction.
Issue
Three complainants challenged whether:
1. the ad exaggerated the visibility and brightness of the product;
2. the ad, in particular the scene showing the cyclist in a non-reflective jacket being hit by a car, was harmful and amounted to scaremongering, because it implied that cyclists who did not wear the jacket were likely to be killed or injured on the road; and,
3. the ad misleadingly implied that complying with the legal requirements was inadequate from a safety perspective, and that cyclists who did not wear reflective jackets were therefore at fault if an accident occurred, because they contended that a bike which was properly fitted with lights and pedal reflectors, in line with the legal requirements, would be adequately visible to traffic and that reflective jackets were not legally required.
Response
1. Proviz Ltd and AMV BBDO stated that the jacket had not been manipulated to exaggerate the visibility and brightness of the product. They provided further technical information from the producers of the ad outlining the process used to make the ad, which reaffirmed that the jacket was not brighter in the ad than it would be when illuminated by headlights.
They noted that the complainants believed the lights on the bike had been manipulated, by angling the front one downwards and significantly dimming the rear one, and the complainants did not believe that the lighting conditions shown in the ad would have resulted in the level of, and constant appearance of, the reflection from the jacket. They explained that the lights had not been dimmed in post-production. The front light was angled, not to disguise it or make it less effective, but so as not to shine directly into the camera that was placed on the filming vehicle. They stated the camera was higher than a driver's eye line and, as such, the lights had not been rendered any less effective. They added that was also true of the rear light which had not been angled. The lights used were Knog lights which provided high levels of illumination and were widely used.
The production company which produced the ad explained that the jacket itself was reflective and did not give out light. The appearance of the jacket in the ad could be alternated between grey and being reflective. In order to make that possible, the film had had to be shot in one take and with available light. It therefore had to be lit in such a way that the technical teams who graded and finished the film in post-production had equal control over the darkness and lightness. They stated that the lights had to be lowered in angle slightly so they did not interfere with the lighting passes. Starting at a 'neutral' point, the technical teams graded the film in three passes: a background pass that was true to the environment; a dark jacket pass where the jacket was deliberately made darker; and a Proviz jacket pass that was graded to match the art work provided by Proviz. The technical teams composited the different passes together so the alternating effect could be achieved. They also balanced out the film and stated that, in some instances, they had had to dial down the level of reflective light on the jacket.
Proviz provided a Reflective Material Technical Report which showed that the material used in the jacket had passed retro-reflective performance standards.
They also provided high resolution images of the jacket and two testimonials (one from a cyclist, one from a driver) praising the jacket, as well as a link to consumer review films which they believed indicated that they had been conservative regarding the level of reflectiveness shown.
2. They stated the ad was an interactive experience that demonstrated the reflective performance of the jacket at night. The ad allowed people to click back and forth between a normal grey jacket and the Proviz jacket, allowing the user to see the difference for themselves and to draw their own conclusions. They said they did not claim that the Proviz jacket rendered cyclists invincible, or that failing to wear one did the opposite. They stated they were committed to cyclist safety, and some proceeds from the jacket sales were donated to the Royal Society for the Prevention of Accidents (RoSPA). They provided a quote from RoSPA's Head of Campaigns and Fundraising, which indicated that he recognised the risks of cycling at night and considered that the jacket increased visibility in the dark.
3. They did not believe that the ad implied that using lights and pedal reflectors was inadequate. They considered it conveyed the message that cyclists were more visible whilst wearing a piece of high visibility clothing and believed that could not be better demonstrated by the fact that all rescue services globally wore high visibility clothing, as did a very large percentage of cyclists on the roads.
Assessment
1. Not upheld
The ASA did not consider that the testimonials or artwork provided were sufficient to accurately demonstrate the brightness and visibility of the jacket in real life. However, we noted that the technical report indicated that the material used to make the jacket enabled the wearer to be conspicuous under the illumination of lights in the dark and that it achieved reflectiveness from light when worn in the dark.
We acknowledged that, to produce the comparative effects in the ad, the use of some post-production techniques would be required and considered that the technical explanation provided addressed the complainants' particular concerns. We understood that, in order to achieve the effect in the 'Proviz jacket' version of the ad, there was a constant light on the jacket during filming. We considered that, in a 'real life' setting, the jacket would not appear constantly lit in the dark, as it did in the ad, because the reflectiveness would depend on the lights and illuminations caused by passing traffic and streetlights. There were therefore likely to be moments when the jacket would appear darker than the way it constantly appeared throughout the film; for example, when there were no nearby street lights or passing traffic.
Notwithstanding that, in the context of a comparative interactive video showing a reflective and a non-reflective jacket, we considered that viewers would understand that the ad was illustrative of the jacket's reflectiveness when worn at night and was being lit by street lights and other traffic, and would understand that the jacket provided the wearer with increased visibility and brightness. We therefore concluded that, on balance, the ad did not exaggerate the visibility and brightness of the product.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), but did not find it in breach.
2. Not upheld
We understood that the complainants believed that the circumstances of the collision shown in the ad were unlikely to have resulted in the jacket being visible prior to the collision. They also considered that the driver failed to give way and was driving at speed.
We considered that most viewers would understand that the ad was drawing a general distinction between cyclists who were visible to drivers at night (for example, because they might be wearing reflective clothing, such as the advertiser's jacket) and those who were not (for example, because they were not using any means to improve their visibility, such as some form of bright or reflective clothing or equipment). We considered the action in the ad would be interpreted to mean that cyclists who were more visible to drivers were less likely to be overlooked and were therefore at comparatively reduced risk of being hit by a driver who had not seen or noticed them.
Although we acknowledged that the ad set up an emotive scenario and made use of dramatic music, we did not consider that the ad went so far as to imply that it was only by wearing the advertiser's jacket that cyclists would avoid serious accidents. We concluded that the ad was not harmful and did not amount to scaremongering.
On that point, we investigated the ad under CAP Code (Edition 12) rule 4.2 4.2 Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention. (Harm and offence), but did not find it in breach.
3. Not upheld
We understood that the Highway Code recommended that appropriate clothes for cycling "should" be worn, and further detailed that cyclists "should wear: light-coloured or fluorescent clothing which helps other road users to see you in daylight and poor light" and "reflective clothing and/or accessories (belt, arm or ankle bands) in the dark". However, we acknowledged that wearing such clothing was not a legal requirement, but instead was a decision cyclists could make at their own discretion. We acknowledged that the Highway Code specified that there were legal requirements relating to the use of bike lights at night.
We noted that the ad did not make any reference to any legal requirements about cycling and considered viewers would understand that the ad was promoting a commercial product and was not commenting on formal safety requirements or UK legislation regarding cycling.
As set out in point 2, we considered that the ad was making a general contrast between cyclists who were more visible to drivers at night with those who were not. We did not consider that the ad went so far as to imply that it was only by wearing the advertiser's jacket that cyclists would comply with the relevant UK legal safety requirements or that they would avoid being at fault if an accident occurred. We therefore concluded that the ad was unlikely to mislead.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), but did not find it in breach.
Action
No further action necessary.
