Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two ads, for a horse racing tipster service, which appeared in the Racing Post:
a. The first ad stated "If YOU have got the PATIENCE then WE have got the BETS ...". A list of each date between 11 and 28 October appeared beneath this with varying profits provided against five of the dates and "no bet" listed alongside the others. Further text stated "Over £2800* profit in just a couple of weeks has more than paid for the annual fee once again in a matter of days. You do not need to bet every day to make big profits ... A full list of every bet since 2004, showing over £230,000 profit is available free to all members". The asterisk linked to small print at the bottom of the ad which stated "*All bets and client quotes are proofed in advance to the Racing Post as evidence. Starting bank required for above profit = £400 starting bank. Total stakes = £2600".
b. The second ad stated "... a full list of every bet since 2004, showing over £230,000 profit for each client is available free to all members".
Issue
Lord David Lipsey, Vice-Chair of the All-Party Parliamentary Group on Betting and Gaming and member of the Starting Price Regulatory Commission, acting in a personal capacity, and one other complainant, who was a subscriber to the service, challenged whether:
1. the references to profits in ads (a) and (b) were misleading, and could be substantiated; and
2. ad (b) was misleading, because it did not give any indication of the stakes required.
Response
1. & 2. Isiris Racing Services provided evidence to support the profit claims in the form of a spreadsheet which detailed every tip from 2004, and detailed the profit/loss individually and cumulatively for each tip across that period. They provided evidence, from bets selected at random by the ASA Executive, to demonstrate that those bets had been proofed prior to the races taking place. They believed the prices were not difficult to obtain and that those included in the proofing (upon which the profit claims were based) were often equal to, or bigger than, that of the starting price. They said that following a previous ASA investigation, they had sent photographic proof to the press and independent adjudicators at least five minutes after the tip message was sent to its customers, so that all recent proofs demonstrated that members had at least five minutes from the time the tip was received to place their bet and achieve the same price.
They said that if the price shortened during this period, they used a shorter price from 12.20pm onwards.
Assessment
1. Upheld
With regard the £2800 profit claim in ad (a), the ASA noted Isiris had supplied a spreadsheet of all tipped bets and outcomes (including losing bets) that were made over a ten-year period and which included the activity which represented the bets placed during that two-week period to which the October profit claim applied. The spreadsheet demonstrated that during those two weeks there had been no losing bets and that although only five bets had been placed, all of them resulted in a win. The proofing documentation, which Isiris had submitted to an approved proofer prior to making their tips available to customers, demonstrated that at that particular point in time the odds that were specifically stated in the ad, were available. However, we considered that the claim "If YOU have got the PATIENCE then WE have got the BETS" and "Over £2800*profit in just a couple of days ..." would be understood by consumers to mean that members of Isiris' service would have been able to achieve this level of profit if they staked the recommended amounts (which were detailed at the bottom of the ad in specific relation to that period). We understood the profit claim was based on the odds that were available at the time Isiris sent out the tips (rather than starting prices). Although we considered consumers would understand that odds could change and were outside of the direct control of Isiris, we also considered that for the profit claim to be substantiated, Isiris should have been able to demonstrate either that this level of profit was achieved by a significant number of their members, or that the odds the selections were tipped at were available for a significant amount of time after the tips became available, i.e. long enough for their members to have reasonable opportunity to back the selections at the tipped odds. Whilst Isiris said it now additionally sent photographic proof of the availability of the tipped odds (to proofers) five minutes after the tips were originally made available to customers, they did not provide details of whether this new additional procedure to proof availability of odds applied to any of the profit claims made in the ad.
Although the ad made clear that the October sample period was an example of what could be achieved by members of the service in the short term and that consumers would understand that there would be losses as well as wins over the longer term, without qualification we considered the ad implied that the two weeks’ results were representative of the sort of short-term profits that could be made through the system. We noted, however, that most other periods in the previous 12 months resulted in lower profits, and in many cases, two-week periods resulted in losses. We therefore considered that the selected period was likely to exaggerate the likely profits and losses that would be typically achieved over the short term by being a member of Isiris.
With regard the £230,000 profit claims in ads (a) and (b), we were provided with a spreadsheet that contained over 4000 records of bets over a ten-year period. We selected 20 at random across this period and asked for proofing to be supplied. Four proofing records were supplied but the remaining requested proofs were not. Whilst we understood this was a result of technical problems with another approved proofer (with whom most tips were proofed), which were beyond the advertiser’s control, we considered that without this information it was not possible to demonstrate that those selections had been proofed. However, based on the proofs that were supplied, we understood that, as with the October 2013 profit claims, the profit claims had not been based on starting prices and that no evidence was available to demonstrate that the price at which the bets were proofed (upon which the profit claims were based) were still likely to be available to the majority of customers when they placed their bets.
We had not been provided with evidence that demonstrated that the majority of tips had been proofed, and where proofing was available, the evidence did not show that the odds at which the profit claims were based continued to be available to its customers for a sufficient length of time after the tips were made (or that most of their customers had achieved the level of profits quoted based on their tips). We therefore concluded the profit claims in the ads had not been substantiated and were misleading.
Ads (a) and (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications 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) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
2. Upheld
We considered that in order to consider profit claims in the context of financial outlay, consumers would need to be aware of the amount required to be staked, along with the starting bank required. Whilst the ad included information about the total amount that would need to be staked and the amount required in the starting bank in order to achieve the profit claims relating to the two-week October period, no such information was provided in relation to the £230,000 profit claim from bets tipped from 2004 until the ad was placed in November 2013. We therefore concluded that the ad was misleading.
Ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications 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) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
Action
Ads (a) and (b) should not appear again their current form. We told Isiris Racing Services to ensure bets were proofed appropriately and that profit claims were based on odds that were achievable by most customers. We told them to ensure ads which contained profit claims made clear the amount required to be staked and the starting bank required.
