Ad description
A direct mailing for Virgin Media, received on 23 June 2011, was sent in a jiffy bag. Prominent text on the front of the jiffy bag stated "Satellite TV Upgrade Pack". Further, smaller text stated "Includes everything you need to: Record two channels while watching a third. And stop clashes for good. Get free servicing and repairs - no more call-out charges outside of warranty period. Catch up on your favourite shows from the last seven days, all on your TV. Enjoy more On Demand choice. End frozen pictures caused by bad weather". Small print beneath stated "Please see inside for Legal Stuff". Vertical small print to the right-hand side of the envelope stated "This package contains promotional material from Virgin Media".
Text on a large red envelope inside the jiffy bag stated "Upgrade to a better TV experience Exclusive offer inside". A letter and a brochure inside the envelope provided details of the offer, which was for Sky customers switching to Virgin Media, and details of Virgin Media's service.
Issue
British Sky Broadcasting (Sky) challenged whether:
1. the jiffy bag was in breach of the Code, because it was not obviously identifiable as a marketing communication;
2. the claims "Satellite TV Upgrade Pack" and "Upgrade to a better TV experience" were misleading and could be substantiated, because they did not believe that Virgin Media could demonstrate that their picture quality was better than Sky's, and the ad failed to mention that Sky offered more HD and SD channels.
Response
1. Virgin Media Ltd (Virgin) said that in their view it was clear that the jiffy bag contained marketing communications, because text on the face of the envelope stated "This package contains promotional material from Virgin Media". They said there could therefore be no doubt about the source or nature of the mailing. They added that, because it was the only text which was placed vertically, it stood out from the other text on the jiffy bag. They said that, in addition, text underneath the main copy stated "Please see inside for Legal Stuff", which indicated the envelope contained promotional material.
2. Virgin said they took advice from CAP Copy Advice on the concept of the "upgrade" message, particularly in light of the fact that Sky had more channels than Virgin. They said that the advice received was that the "upgrade" message was unlikely to be problematic given that it appeared to be qualified by the information appearing beneath the main claim.
Virgin said the claims were based on the points listed on the jiffy bag, which were five key features of Virgin's TV service that were not available with Sky. They said the mailing's brochure gave further information about those features.
Virgin said the claims "Satellite TV Upgrade Pack" and "Upgrade to a better TV experience" did not refer to picture quality in general, which would depend on a consumer's TV set, but rather to what happened to satellite TV pictures specifically in poor weather. They said Sky acknowledged that their satellite signal, and therefore their customers' picture quality, could be compromised in bad weather such as large snowfall or heavy rain, whereas Virgin's cable signal was not affected by such weather. They considered that contributed to a "better TV experience".
Virgin said that nowhere in the mailing did they claim or imply that they had the same or more channels on offer as Sky, and that in fact the brochure stated "160 amazing channels, including your Sky, Freeview and terrestrial favourites", and made clear that Sky offered 35 HD channels for an extra cost per month, compared to Virgin's package which included 19 HD channels at no extra cost.
Virgin added that the number of channels on offer to consumers was not the be-all and end-all of their 'TV experience' because of the advent of personal video recorders (PVRs) and on demand content. They said that information provided in the mailing's brochure showed that Virgin's packages offered the ability to record more channels simultaneously than Sky's, and that Virgin offered a greater volume of on demand than Sky.
Assessment
1. Upheld
The ASA noted the text "This package contains promotional material from Virgin Media" was considerably smaller than the main copy on the front of the envelope, was at 90 degrees to all the other text on the envelope, and was located far to the right of the envelope under a series of reference numbers. We considered that the combination of those factors meant it was likely to be overlooked by consumers and that consumers would therefore be unaware that the envelope contained promotional material from Virgin.
We noted Virgin considered the text "Please see inside for Legal Stuff" indicated that the envelope contained promotional material. However, we considered that that statement was unlikely to be understood by consumers to mean that the mailing was a marketing communication. We considered, for instance, that the placement of that statement, combined with the likelihood that consumers might not have noticed the text which identified that the mailing was from Virgin, could lead consumers to think that the envelope contained legal and other information, and possibly technology, from their satellite TV provider which would result in an upgrade to their existing satellite TV package.
We considered the ad did not make clear that it was a marketing communication, or that it was sent with commercial intent, and concluded that it breached the Code.
On this point, the ad breached CAP Code rules
2.1
2.1
Marketing communications must be obviously identifiable as such.
2.3
2.3
Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context.
(Recognition of marketing communications),
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).
2. Not upheld
We noted Sky had challenged whether the claims were misleading specifically in relation to picture quality and the number of HD and SD channels offered by Virgin.
We noted that the claims "upgrade" and "better TV experience" were qualified on the jiffy bag, and in the letter and brochure with bullet-pointed text that set out the features of the service being offered. We also noted that the letter went on to describe those features in more detail. We therefore considered that consumers would understand those claims to be based on the service features referred to in the ad, rather than picture quality and the number of SD and HD channels only.
Nevertheless, we noted that where the mailing referred to picture quality it was clear that the comparison was made on the basis of poor picture quality caused by bad weather, rather than to general picture quality. The mailing made repeated references, in the bullet-pointed text and elsewhere, to pictures delivered by dish or satellite being affected by bad weather. We understood that it was the case that satellite signals, and therefore picture quality, could be affected by bad weather, whereas cable TV would not be affected in that way, and we considered it was not misleading for Virgin to refer to that in their advertising. We also considered that consumers were likely to regard a TV service which was not affected by bad weather to be providing a "better TV experience" than one that was. We concluded the claims were not misleading in that regard.
We noted the mailing did not specifically compare the number of SD channels available through Sky and Virgin. However, we noted that, the mailing stated that Virgin offered 160 SD channels and included the logos for the main channels they provided, and that the body copy text and small print stated that there were some channels available through Sky which were not included in Virgin's offering. We therefore considered that the extent of Virgin's SD offering was clear. We also considered that, because the mailing was directed at existing Sky customers, the recipients would be aware of the number of channels they received through Sky and would therefore understand that Sky offered more SD channels than Virgin. Furthermore, we noted that the brochure featured the logos of the HD channels Virgin did provide next to the text "HD channels included", and also included a comparison table for Virgin's and Sky's services, which stated that Virgin provided 19 HD channels and that Sky provided 35 HD channels for an additional monthly cost. We therefore considered that the ad did make clear that Sky's HD package contained more HD channels than were available through Virgin. We concluded that the claims were not misleading in that regard.
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.
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),
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
and
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
(Comparisons with identifiable competitors), but did not find it in breach.
Action
The ad must not appear again in its current form. We told Virgin to ensure their ads made clear that they were marketing communications and that they were sent with commercial intent.
