Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Several display ads and the website www.shadowhawkflashlights.com, for Shadowhawk Tactical, seen in September and October 2016 promoted the ShadowHawk X800 Flashlight.
a. The online display ads included a picture of the ShadowHawk X800 Flashlight and text stated “[Location] Police Urge Residents To Carry This With Them At All Times”. The location changed depending on where the complainant was at the time the website was visited.
b. Consumers who clicked on ad (a) were redirected to www.shadowhawkflashlights.com which included the text “Advertorial” at the top of the page. Text in the body of the ad stated “Intelligent Insider … [location] … Top Stories … BREAKING NEWS … Due to Recent Late Night Crimes, Officials Are Asking For Your Help ... [Location] Officials Urge Residents To Carry This With Them At All Times … Due to the outbreak of late night and early morning crimes, officials are asking residents to take safety precautions. Officials stated they don’t want resident to buy a gun or even non-lethal items like a taser [sic] or pepper spray. Instead they suggest something you probably would never think of - carry a high power flashlight”. Again, the location changed depending on where the complainant was at the time the website was visited.
Further down the web page, the ad stated “With Over 20,000 Sold This Month, People Are Talking”. The ad included a link that stated “ShadowHawk X800 Flashlight … Redeem My 75% Discount Now”.
Text at the bottom of the web page stated “THIS IS AN ADVERTISEMENT AND NOT AN ACTUAL NEWS ARTICLE, BLOG, OR CONSUMER PROTECTION UPDATE”.
Issue
1. Several complainants challenged whether the claims “[Location] Police Urge Residents To Carry This With Them At All Times” in ad (a) and “Due to recent late night crimes, officials are asking for your help … officials are asking residents to take safety precautions” in ad (b), were misleading because they implied that the product was endorsed by local police services or officials.
2. Several complainants challenged whether ad (b) was obviously identifiable as a marketing communication.
3. Two of the complainants challenged whether the claims “…Over 20,000 Sold This Month” and “75% Discount” in ad (b) were misleading and could be substantiated.
Response
Shadowhawk Tactical LLC did not respond to the ASA's enquiries.
Assessment
The ASA was concerned by Shadowhawk Tactical’s lack of response and apparent disregard for the Code, which was a breach of the CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and told them to do so in future.
1. Upheld
We noted that both claims referred to specific locations and stated that the local police or local officials were urging or encouraging residents to use a high powered flashlight, such as the ShadowHawk X800, as a means of defence against personal crime. We considered that in that context, consumers were likely to understand the claims to mean that their local police force or local officials had endorsed the ShadowHawk flashlight as a reliable and effective way to ensure their own safety.
We noted that Shadowhawk Tactical did not provide any documentary evidence to demonstrate that their flashlight had been endorsed by the relevant police forces or Council officials referred to in the ads. In the absence of that evidence, we concluded that the claims in ads (a) and (b) were misleading and had not been substantiated.
On that point, the ads breach 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 3.50 3.50 Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation. (Endorsements and testimonials).
2. Upheld
We noted that ad (b) was presented as a news article, with a banner at the top of the page which included the text “BREAKING NEWS” above the headline “[Location] Officials Urge Residents To Carry This With Them At All Times”. Therefore, we considered that consumers were likely to believe that the content was a local news story related to crime and its prevention, rather than a marketing communication.
We noted that the word “advertorial” was displayed at the top of the ad, above the “BREAKING NEWS” banner, in a small font and was concealed as consumers scrolled down the page. In addition, text at the foot of the ad stated “THIS IS AN ADVERTISEMENT AND NOT AN ACTUAL NEWS ARTICLE, BLOG, OR CONSUMERS PROTECTION UPDATE”. We considered, however, that consumers were likely to overlook both labels and that they were not sufficiently prominent to counter the initial impression that the content was a news article.
In light of that, we considered that the ad was not obviously identifiable as a marketing communication and concluded that it was in breach of the Code.
On that point, the ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications).
3. Upheld
We considered that the claim “…Over 20,000 Sold This Month” in ad (b) would be interpreted by consumers to mean that ShadowHawk Tactics had sold over 20,000 units of the flashlight in the month the ad was seen. We also considered that consumers would understand the claim “75% Discount Now” in ad (b) to mean that the product was available at 75% less than Shadowhawk Tactical’s usual selling price.
Shadowhawk Tactical did not provide any documentary evidence to show the number of flashlights sold per month or the price at which the product was generally sold. Because we had not seen any evidence to support the claims we concluded the ad was misleading.
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).
Action
The ad must not appear again in its current form. We told Shadowhawk Tactical LLC to respond to our enquiries in future and not to claim that their product was endorsed by local police forces or Council officials, if that was not the case. We also told them to ensure they held adequate evidence to substantiate their savings claims and volume sales, and that their marketing communications were obviously identifiable as such. We referred the matter to CAP's Compliance team.
