Background
Summary of Council decision:
Three issues were investigated, all of which were Not upheld.
Ad description
A national press advertisement feature for Viviscal, a food supplement, stated "Singer and actress Maureen Nolan chose award-winning Viviscal [..] to restore confidence in her hair [..] "I now take Viviscal, a natural food supplement [..] sold in 20 countries worldwide" Other fans of Viviscal have been reported to include celebrities Reese Witherspoon and Liv Tyler" [..] New York based hair stylist Harry Josh who works with some of the most lusted-after modern-day hair icons says: "I believe in Viviscal Maximum Strength Tablets.. tons of models swear by them.", UK Glamour Magazine". Text also stated "As seen on TV".
Issue
The complainant challenged whether:
1. the claim "As seen on TV" could be substantiated, because they did not believe it had been seen on TV recently;
2. the claim "sold in 20 countries" could be substantiated; and
3. the claim "New York based hair stylist Harry Josh who works with some of the most lusted-after modern-day hair icons says: "I believe in Viviscal Maximum Strength Tablets ... tons of models swear by them" was misleading, because they did not believe he was referring to the advertised product.
Response
1. Lifes2good UK Ltd (Lifes2good) said the product had appeared on TV both in advertising and in TV programmes. They provided a list of the most recent broadcast coverage for the product and a copy of the footage of a broadcast in September 2012.
2. Lifes2good provided a list of 20 countries in which they said the product was sold. They provided example invoices in relation to five countries.
3. Lifes2good said that their Viviscal Maximum Strength Tablets went by the name of Viviscal Extra Strength Tablets in the USA for legal/claims reasons, but that they were the same product and contained the same percentages of each ingredient.
Assessment
1. Not upheld
The ASA considered that consumers would understand the claim "as seen on TV" to mean that the makers of a TV programme or programmes had taken an editorial decision to feature Viviscal products, thereby constituting an independent endorsement and that, where those products were featured, they would be readily identifiable as Viviscal products. The list of broadcast coverage provided by the advertiser included paid for advertising, but we did not consider this was relevant to the claim. They also referred to the ad appearing on various TV programmes. One of these was in 2009, which we did not consider was sufficiently recent to support the claim, which we considered consumers would understand to be recent media coverage. The advertiser provided a copy of the broadcast material from one appearance in September 2012. We viewed the coverage and noted it referred to the product by name. Because we had seen evidence that the product had been identifiably featured on a recent TV programme we concluded the claim had been substantiated.
On this point we investigated the ad under CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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) but did not find it in breach.
2. Not upheld
The advertiser had provided a full list of the 20 countries in which they sold the product. We had randomly selected five countries and asked the advertiser to provide us with invoices relating to these countries, which they did. We considered the evidence provided to us demonstrated they sold the product in 20 countries and therefore concluded that the claim had been substantiated.
On this point we investigated the ad under CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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) but did not find it in breach.
3. Not upheld
The quote referred to "Maximum Strength Tablets" which we understood was the UK product name. Although we understood that Viviscal Maximum Strength Tablets went by the name of Viviscal Extra Strength Tablets in the USA for legal/claims reasons, the actual quote referred to the UK product. We therefore concluded the claim was not misleading.
On this point we investigated the ad under CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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) but did not find it in breach.
Action
No further action necessary.
