Background
Summary of Council decision:
Three issues were investigated of which one was Upheld and two were Not upheld.
Ad description
Ads in the Racing Post promoted a betting tipster service:
a. A press ad stated "peter naughton the ethical edge CALL 0XXXX XXX XXX ANOTHER HUGELY PROFITABLE YEAR! Peter did it yet again with 11 PROFITABLE MONTHS in 2012 and December was one of his best months so far!"
b. A second press ad stated "peter naughton the ethical edge CALL 0XXXX XXX XXX LONG-TERM PROFITS If you are looking for long-term profits, Peter is the man to follow. The Ethical Edge is an extremely selective informative daily tipping service.
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 challenged whether:
1. the claim "ANOTHER HUGELY PROFITABLE YEAR! Peter did it yet again with 11 PROFITABLE MONTHS in 2012 and December was one of his best months so far!" in ad (a) could be substantiated; and
2. the claims "LONG-TERM PROFITS" and "If you are looking for long-term profits, Peter is the man to follow" in ad (b) were misleading, because it implied that the selections were certain or very likely to make a profit.
3. the claim "the ethical edge" in ads (a) and (b) was misleading and could be substantiated.
Response
1. & 2. Peter Naughton provided a breakdown of his monthly profits, which he stated totalled over 100 points' profit. He said all bets were proofed to the Racing Post via e-mail every day and were supported by a screen-shot proving the available odds, as stated at the time of each recording (12 pm). The Racing Post provided two spreadsheets in support of the advertisers' claims that documented every bet made and proofed by Peter Naughton in 2012, and a monthly profit and loss breakdown for 2012. They also provided the proofing e-mails sent by Peter Naughton to the Racing Post prior to each race, which showed each tip, the available odds and the date and time it was proofed.
Peter Naughton considered that it would be understood from the ads' claims and context that there were no certainties in horseracing and, on that basis, he did not consider that readers would understand that he was offering a definite profit. He believed that readers choosing a tipster would consider the relative likelihood of making a profit and although some readers might consider that they were very likely to make a profit, Peter Naughton did not believe that the claim "11 profitable months from 12" would be interpreted in that way.
He stated that ads for his service appeared daily, but these ads had only appeared once. He understood that the Racing Post was intending to highlight his long-term points profit in 2012 in order to communicate his service's achievements. He said the claim was intended to stress the difference between proven long-term profits and tipsters who made successful claims relating to profits made over a period of a few successful days only.
3. Peter Naughton said he had launched the Ethical Edge to produce an ethical and genuine tipping line for consumers. He provided some examples which he considered showed an ethical approach. He said he provided short messages which included relevant information only, whereas some tipsters' messages lasted upwards of seven minutes. He advised on one or two horses each day, compared to some tipsters who advised bets on seven or eight horses. He said all of his messages highlighted the best odds available and strongly advised callers to only place bets with bookmakers offering the 'best odds guaranteed'; in the event of the starting price being bigger than the advised odds, those bookies paid the bigger odds. He stated that some tipsters advised betting on lots of favourites but he often aimed to give his customers an edge by advising bigger odds; for example, at the latest Cheltenham Festival he had tipped a 33-1 selection, which was the best bet of the day (NAP) and had also won Grade 2 and Grade 1 races on its next two starts.
He said his customers were aware that he regularly spoke to high-profile contacts in racing journalism, which he believed compared favourably against many other tipsters, whose tips were not always from contacts/trainers, but represented their own views. He said he updated a free notebook on his website each day and reviewed the previous day's racing. He added that every reader of the notebook received a free monthly tip. He said some tipsters offered extra services including 'Odds-To', in which the customer was requested to place bets on behalf of the tipster, often upwards of £50 each time; he had never done so. He said that some tipsters only offered a PO Box contact point, but he was available at all times on his office telephone and he regularly spoke to his customers. He also provided positive reviews of his service and work in racing journalism.
Assessment
1. Not upheld
The ASA understood that the profit claims were based on Peter Naughton's horse racing selections and noted that the figures for 2012 were provided in a master spreadsheet that showed the monthly running profit totals. We understood that each recommended bet was lodged independently by e-mail with the Racing Post before each race and asked the advertiser and Racing Post to provide the proofing e-mails showing the results on a sample of dates, which had been randomly selected by the ASA, throughout the relevant period. We noted that the selections in the spreadsheet and proofing e-mails corresponded and further noted the e-mails were sent before the start of the relevant races. We also noted the proofing e-mails included screenshots from the relevant bookies' website confirming the availability of the recommended odds for the horses he had advised. We therefore considered the documentation provided verified the accuracy of Peter Naughton's records in 2012.
We considered that readers would understand the claim "Peter did it yet again with 11 PROFITABLE MONTHS in 2012" to mean that, for each month in 2012, following the tips on a daily basis had led to an accumulated points profit for that monthly period, with the exception of one month. We considered that readers would infer from the claim "December was one of his best months for far!" that the points profit in December was one of the highest for 2012. Because we considered that documentation supported those claims, we concluded that ad (a) was not misleading.
On that point, we investigated ad (a) under CAP Code (Edition 12) 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. Upheld
We understood that the ad had only appeared once. We considered that ads for betting tipster services should not imply that that service was very likely or certain to turn a profit, nor imply that readers could forge a long-term profit by using the betting system. We noted ad (b) was headlined "LONG-TERM PROFITS" and subheaded "If you are looking for long-term profits, Peter is the man to follow". Although we noted that the ad also explained that Peter Naughton had "recorded 11 PROFITABLE MONTHS in 2012" for which we had seen supporting information as detailed under point 1, we considered that some consumers might understand from the more prominent text that using the service would be likely to lead to making a long-term profit and concluded that the ad was therefore likely to mislead.
On that point, ad (b) breached CAP Code (Edition 12) 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).
3. Not upheld
We understood that "The Ethical Edge" was the name of Peter Naughton's service, which he further described in ad (b) as "an extremely selective informative daily tipping service". We did not consider that consumers would understand the claim "The Ethical Edge" to mean that betting was ethical in general terms, nor that it was a comparative claim intended to denigrate the service offered by all other betting tipsters. We considered consumers would infer from the claim that Peter Naughton considered his service to be of a high quality and that he took pride in the service he offered his customers, and noted the steps he took in that regard. Because we considered that the claim "The Ethical Edge" was a subjective description and represented the advertiser's view of the customer service he offered, we concluded that the claim was unlikely to mislead.
On that point, we investigated the ads under CAP Code (Edition 12) 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 them in breach.
Action
Ad (b) must not appear again in its current form. We told Peter Naughton to ensure his ads did not claim or imply his service was very likely or certain to turn a profit, nor that consumers could forge a long-term profit by using the betting system.
