Category Archives: Advertising

Second Screen Ad Campaigns – the new frontier for keyword litigation?

Last week I went to the incredibly cool Future TV Advertising Forum and, amongst other things, I saw a demonstration of some prototype systems for running synchronised second screen ad campaigns.

By the “second screen”, broadly speaking, I’m referring to a tablet which someone uses on his/her lap whilst sitting on the sofa watching TV (there’s an interesting debate about whether it’s the tablet or in fact the TV which is now the second screen, but that’s another story).

One particular product by Cisco and Innovid caught my eye. At a high level, it involves a system which picks out various keywords spoken during a programme played on TV which could then be used to trigger relevant and targeted ads to the user on his/her tablet. The system is so sophisticated it can even determine the “context” in which the word is being used to determine whether it’s a “positive” or “negative” mention of the word. For example, if someone on the TV was slagging off a brand, you wouldn’t want that to trigger an ad for that brand on the second screen, whereas if someone was watching a cookery programme, that would be a good opportunity to trigger ads for cooking utensils etc. There’s more detail about the Cisco / Innovid solution in this blog post here.

What is particularly interesting about the system from a legal perspective is that it provides the potential for brands to purchase their competitors’ trade marks as trigger keywords, which, if appearing in the broadcast audio stream could trigger an ad on the tablet.

Anyone who knows a bit about trade mark law will know that if there’s one area which has caused an absurd amount of litigation in Europe, it’s the purchasing of competitors’ keywords in order to trigger sponsored search ads on search engines (the most well known of course being Google’s Adwords service).

If you’re reading this blog you’ll probably know how keyword advertising works. If not, in summary, if you want to advertise a website on Google, you can choose certain keywords which are “related” to your business – see Google’s guide here for how it works. More than one advertiser can purchase the same keywords, so advertisers can bid for how high up the list of sponsored ads they want their link to appear.

The problem therefore arises where a third party trade mark is purchased as a keyword and the third party feels this leads to an unfair advantage being taken from its trade mark. It’s these issues which lead to cases such as Google v Louis Vuitton, L’Oreal v eBay, and most recently Interflora v Marks & Spencer, where the High Court held in May this year that the use by M&S of the keyword “INTERFLORA” to advertise its flower-delivery business on Google was an infringement of Interflora’s trade mark.

The outcome from Interflora appears to be that a trade mark owner will struggle to prevent others from using its trade mark in keyword advertising unless the use somehow causes detriment to the trade mark’s distinctive character or reputation, or makes it difficult to determine whether the advertised goods/services originate from the trade mark owner or a third party etc.

It will be really interesting to see whether the type of synchronised second screen ad campaigns described above could prove to be the next battleground for keyword litigation, taking it from the web, to the TV, to the tablet.

Voting in online competitions

“Those who vote decide nothing. Those who count the vote decide everything.”

― Joseph Stalin

In July last year I wrote a post about online prize promotions. That post included a brief discussion about voting mechanisms and their potential problems. Following a recent adjudication involving an online competition run by Unilever, I thought it worth writing about this issue in more detail.

The most common mechanism to incorporate a vote into an online competition is where entrants submit something like a photo, picture or video, the entries are then displayed in some kind of online gallery, the public vote for their favourite entry, and the entry with the most votes wins the prize.

The risk with an online vote is that it’s open to abuse in various ways. Under Rules 8.2 and 8.14 of the CAP Code, promoters of prize promotions must conduct them equitably, make adequate resources available to administer them, deal fairly with entrants, avoid causing unnecessary disappointment, and not give consumers justifiable grounds for complaint.

Where the voting mechanic of an online competition is abused somehow, entrants may complain that the promotion has not been run fairly. If the ASA thinks that insufficient security  measures were implemented to ensure the voting system was not abused, it may find that inadequate resources were made available to administer the promotion.

There are various options for promoters regarding the voting rules. For example, voting could be limited to “one vote per household”, “one vote per person”, “one vote per day”, “one vote per email address submitted”, or “one vote per IP address”. A key question to ask is what security measures can be implemented to monitor and enforce these voting restrictions?

Cookie-based voting

Using cookies may seem a simple way to enforce a limit of one vote per day for example. Following a vote, a cookie can be stored on the user’s computer which expires after 24 hours. The system then checks for the cookie each time the user comes back to the site. If the cookie’s there, the user can’t vote and is told to try again later. Elmsleigh Shopping Centre implemented this system in a promotion it ran in 2010 partly because it thought the alternative of a registration or log-in process might deter people from voting.

However, the problem with cookie-based voting restrictions is that it’s quite easy to circumvent them, for example, by deleting your cookies or by running your browser in privacy mode.

In the Elmsleigh promotion referred to above, the ASA thought that, given the simplicity of the cookie-based voting system, the possibility of fraudulent voting should have been anticipated. According to the ASA, the system should have been researched and tested more rigorously before the competition began and safeguards should’ve been implemented to minimise the possibility of participants cheating.

A couple of years later, the Co-op’s use of cookie-based tracking to register votes for a competition was also held to be inadequate by the ASA. In this adjudication, the Co-op had tried to make the voting system more robust by giving people the option to provide an email address with their vote. However, because this was only optional it was insufficient to enable the Co-op to adequately remove duplicate or fraudulent votes.

IP address based voting

Aside from cookies, there are various other solutions for enforcing voting rules. For example, in an adjudication from 2010, Ferrero gave the ASA an account of the various IP address based security measures it used to enforce the voting rules in a promotion. Ferrero’s solutions included recording IP addresses of each voter and  implementing a system which prevented IP addresses from being masked.

Most recently, in an adjudication from May this year, the ASA thought that Unilever and its agency Ogilvy had in fact used sufficiently secure methods to monitor and control voting. In that promotion, the voting rule was “one click, one vote” – i.e. one vote per day per IP address. This seems to be the clearest and most effective voting rule that competition promoters can implement.

Whilst using IP addresses isn’t perfect because entrants are theoretically able to change their  IP address. In the Unilever adjudication, the ASA thought this would require a significant degree of technical competence and programming understanding beyond the average consumer.

The other advantage of “one click, one vote” is that, because it’s based on IP addresses, you don’t need voters to register or leave any data (e.g. name or email) which can easily be fabricated and therefore not particularly helpful to combat fraudulent voting.

Nothing’s perfect

The fact is that no matter how many security measures are implemented, people will always find a way to circumvent them. Also, once a vulnerability has been discovered, the way to crack the voting limit may get revealed in online forums and social media as Elmsleigh Shopping Centre discovered in the promotion referred to above. However, if the voting mechanic does get abused but the promoter has implemented sufficient steps such that it would take considerable effort to circumvent them, there’s a good chance the ASA will find that the promoter has done enough to administer the competition fairly and won’t be in breach of the CAP Code.

On discovering fraudulent voting, the decision may be taken to disqualify an entrant. Likewise, in an adjudication from last year the ASA thought that a digital agency hired by 20th Century Fox, was right to disqualify an entrant due to various irregularities with that person’s votes. In particular, a significant number originated from the same IP address.

It’s important to note that the T&Cs for the 20th Century Fox promotion stated at the outset that no prizes would be awarded as a result of “improper actions” by entrants. The ASA thought this gave a reasonable basis for the entrant to be disqualified. However, the ASA did point out that the T&Cs should have included some examples of what might constitute “improper actions“. In an advice note published by CAP in March this year, CAP commented on this adjudication saying that:

“Generally speaking, promoters should be wary of seeking to rely on such broad terms to disqualify entrants unless they are confident that they have clear evidence of abuse.”

Vote swapping syndicates

Unlike the 20th Century Fox adjudication above, Mercedes was slapped on the wrist by the ASA for disqualifying an entrant from a promotion it ran last year.

Mercedes had discovered that the entrant had been part of an online vote-swapping syndicate (i.e. websites that allow the exchange of votes with people participating in other competitions). Mercedes disqualified her because it thought this reciprocal arrangement was not in the “spirit of the competition”.

The problem was that vote-swapping was not prohibited in the original T&Cs. Mercedes also didn’t help themselves by the fact that the entrant had emailed them to ask whether it was actually ok to do this and didn’t get a response from them until she’d already gone ahead and done it!

118 118 also got a similar wrist slapping last year when they disqualified an entrant because they thought she was participating in a vote-swapping syndicate. However, by mistake 118 118 hadn’t communicated any T&Cs to entrants. The ASA thought that, if 118 118 had intended to disqualify participants based on such activity, this should have been made clear in accompanying T&Cs.

Play by the rules

It’s important not to change the rules (if at all possible) during the campaign because that in itself may be a breach of the CAP Code. However, Promoters may find that, as the competition progresses, more sophisticated attempts at multiple voting appear. If this problem becomes apparent, it may be necessary to deploy further security measures and alter the voting rules.

Provided any changes don’t materially alter the basis on which the winner is selected, there’s a good chance the ASA won’t have a problem with it. In the Ferrero adjudication referred to above, the ASA thought Ferrero had been right to include an additional requirement for voters to provide their email addresses midway through the promotion because this further ensured the security of the voting system.

When Elmsleigh Shopping Centre found there had been fraudulent voting, to improve security, it increased the restriction on voting to one daily vote per e-mail address, instead of per household. However, in the Elmseigh competition, it was not made clear at the outset that the daily vote limit was initially one per household. This meant that when the new T&Cs were published stating that one daily vote per e-mail address was allowed, it would not have been clear to participants that the rule had changed.

In a promotion run by Meeeeet.com last year, the ASA was similarly unimpressed when, midway through the promotion, Meeeeet.com removed the voting mechanism altogether and replaced it with a judging panel. The promoter had discovered that some entrants were receiving an unusually high number of votes and that many votes originated from the same IP addresses. The promoter therefore decided it would be better to use a judging panel to decide the winner. Whilst the ASA understood the reasons why Meeeet had changed the rules during the competition, it nonetheless considered that altering the mechanic had put participants at a significant disadvantage because the judging criteria had not been communicated at the outset.

Vote of confidence

If done correctly, including a voting mechanic in an online competition can be an excellent way to maximise engagement. However, there are various pitfalls to be aware of. Promoters should ensure that they implement adequate security measures to control voting, not disadvantage entrants by changing the rules, and most importantly make the rules clear at the outset!

Cookies – are we asking the right questions?

Last week saw the first anniversary since the ICO decided to start enforcing the new cookie rules in the UK. If you’re reading this, you’ll almost definitely know that the law actually came into force two years ago as a result of changes to the E-Privacy Directive. The “old” rules operated on a notice and opt-out basis. Under the “new” rules, broadly speaking, notice and prior consent is required.

Ever since the law came into force, lots of questions have been asked by lots of different stakeholders. The main question I’ve been asked as a legal adviser in this area is what consent mechanism a website needs to implement to be compliant (implied consent notice, banner, pop-up etc?).

One of the much discussed problems with the prior consent rule is that everyone knows the average internet user does not understand and/or will not make the effort to try to understand what cookies are and how they’re used. The notion of the average internet user providing genuine, freely given, specific and above all “informed” consent in relation to cookies is therefore completely spurious.

I went to a seminar recently where Dave Evans from the ICO showed some statistics about the number of complaints the ICO had received about cookies since the rules came into force. According to the ICO, the number of complaints was very low compared to other data protection / privacy issues which they receive complaints about.

What is the point of asking how many people have complained about cookies? Does a low number of complaints indicate a successful regulatory regime or does it indicate a pointless one?  Why did the relevant people actually complain? Why did other people not complain? Is it because they don’t care about cookies? Is it because they didn’t know who to complain to? Is it because they do care about cookies but couldn’t be bothered to complain? Is it because they don’t care about cookies but enjoy complaining? Is it because they would care about cookies if they understood what the hell they were? And… so… on…

The legislation admits that prior consent is pointless for certain cookies (i.e. the ones that are strictly necessary for the site to offer a service requested by the user, such as an online shopping basket). The real target of the rules, as we have been continually told by the regulators, is online behavioural advertising (OBA).

In Opinion WP171 from June 2010, the Article 29 Working Party (an independent body made up of the various European data protection regulators) acknowledged that whilst there are “possible economic benefits to advertisers” through using OBA, these should not come at the expense of individuals’ privacy rights. “Possible economic benefits”?! Surely that’s an understatement. In any event, surely the implementation of a completely spurious notice and consent regime does nothing to safeguard individual’s privacy rights.

Omer Tene and Jules Polonetsky from the Future of Privacy Forum wrote an article last year in the Minnesota Journal of Law, Science & Technology in which they nicely summarised the regulatory conundrum we’ve found ourselves in:

By emphasizing “transparency and user consent,”… the current legal framework imposes a burden on business and users that both parties struggle to lift. Imposing this burden on users places them at an inherent disadvantage and ultimately compromises their rights. It is tantamount to imposing the burden of health care decisions on patients instead of doctors. Instead of repeatedly passing the buck to users, the debate should focus on the limits of online behavioral tracking practices by considering which activities are socially acceptable and spelling out default norms accordingly.

The purpose of OBA is to display adverts to people for products/services which they are more likely to be interested in and therefore buy. OBA and the development of real-time bidding and programmatic buying are the future (or even the present) of the internet. It seems that instead of spending all this time asking consumers to provide consent to something which they either don’t understand, don’t want to understand or don’t care about, the regulators should spend more time asking a fundamental question about what they are actually trying to regulate.

Surely attention should instead be focused on what businesses can/can’t do with people’s personal data and ensuring that online businesses do not abuse that data in a way which causes people either real distress, financial injustice or discrimination (e.g. unfairly increasing prices or denying financial services based on incorrect assumptions drawn from web browsing history). If you asked consumers whether they care about that stuff I know what their answer would be.

Legal issues of interest/confusion to digital marketers

A few weeks ago I went to an interesting event about content marketing hosted by Digital Doughnut in London’s fashionable Shoreditch. It was interesting for various reasons. Firstly, there were three great presentations by marketers from the Guardian Digital AgencyNewsReach, and iTrigga; secondly, I was the only lawyer there (I think); and thirdly, when each person I spoke to discovered I was a lawyer, there was some consistency to the legal issues they were interested in and confused about.

These legal issues were (i) the ASA’s “digital remit”, (ii) the “fair dealing” exception under copyright law, and (iii) the applicability of UK data protection law.

The ASA’s digital remit

It’s actually been quite a while (over two years) since the ASA’s remit was extended to cover marketing on advertisers’ own websites and social network sites “under their control”. Prior to this extension of the CAP Code, the ASA’s digital remit only included online ads in paid-for space (e.g. banners, pop-ups, keyword ads on Google etc), as well as emails and SMSs.

The fact that content on a company’s Facebook page could potentially be within scope of the advertising regulations surprised some of the people I spoke to. Some people were particularly surprised that even UGC on a Facebook page could be covered if the content was incorporated into a marketing message.

The relevant part of the CAP Code is paragraph (h) of the introductory section which states that the CAP Code covers content on companies’ own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts. What that essentially means is that any content designed to sell something will be captured, as opposed to, for example, editorial, PR, press releases, and investor relations copy, which are outside the scope of the CAP Code.

Incidentally, when the remit extension was announced back in 2011, the ASA said that it would undertake a quarterly review of the extended digital remit with the intention of carrying out a comprehensive review in Q2 of 2013 – so that’s something to look out for…

Fair Dealing

Quite a few people I spoke to were interested in copyright issues and in particular the extent to which the “fair dealing” exception under copyright law meant they could “reuse” content (note that “fair use” is the similar, but not identical, exception under US copyright law).

In reality, the scope of the fair dealing exception in UK copyright law is much narrower than most people think. Under sections 29 and 30 of the Copyright Designs and Patents Act 1988 (CDPA), the fair dealing exceptions only apply to research, private study, criticism, review, or reporting current events. This means that the exception is highly unlikely to apply in the case of third party copyright works which are “borrowed” for marketing purposes.

In the case of research, broadly speaking, it has to be for a “non-commercial purpose” and it’s worth noting that the English courts have been willing to interpret what constitutes a commercial purpose broadly.

The point of the “reporting current events” exception is to protect the role of the media in informing the public about current events.

In terms of what constitutes “criticism” or “review”, the English courts have been unimpressed with advertisers’ attempts to incorporate third party content into ads and then rely on the fair dealing defence. For example, in a case between IPC v News Group, The Sun used a picture of the front page of IPC’s “What’s on TV” magazine in an ad comparing it to “TV Choice” (The Sun’s listings magazine). The court held that this didn’t constitute “criticism” within the meaning of the CDPA (because the criticism could have been made simply by referring to What’s on TV).

Applicability of UK data protection law

In this globalised world of SaaS and cloud hosting, it can be confusing as to whether UK data protection law applies.

The basic rule is set out in section 5 of the Data Protection Act 1998 (DPA). If a company “controls” personal data and that company is (i) established in the UK and (ii) processes that personal data (which would include collecting it, storing it and even deleting it) in the context of that “establishment”, then UK data protection law will apply – regardless of whose data it is and where the data is stored.

“Establishment” is defined quite broadly in the DPA and includes UK registered companies, or even offices or branches in the UK – i.e. if a US company has an office in the UK and personal data is processed in connection with that branch, then that processing will need to be compliant with UK data protection law.

If there is no establishment in the UK, but a company uses “equipment” in the UK to process personal data (not including where it’s merely for the purposes of transit through the UK), UK data protection law will also apply – i.e. if a US company with no offices in the UK uses servers in the UK to process personal data, then that processing would also (strictly speaking) need to comply with UK data protection law.

It’s also worth noting that certain European data protection regulators have been inclined to take a broader view about what amounts to “using equipment”. The Article 29 Working Party (an independent body made up of representatives of the European data protection regulators) has even suggested that setting cookies on users’ devices could amount to using equipment so that the data protection law of the European country where the device is located would apply. This is controversial because, arguably, this would mean every single website in the world which can be accessed by Europeans would be subject to European data protection law!

The above is only a brief summary of the various legal issues which people at the event were interested in. The world of marketing can be a legal minefield. When marketing enters the digital domain the legal issues increase both in number and complexity!

Advergames – Play with caution (Part 2)

In my previous post on advergames I covered some issues that arise when using advergames as the mechanic for a prize promotion, as well as the importance of making sure the advergame is obviously identifiable as an ad. In this post, I cover some of the issues that arise with advergames that appeal to children.

The reason for devoting a whole post to advergames that appeal to children is because most of the complaints to the ASA about advergames have generally been on this topic. There have also been various reports and campaigns in this area (e.g. the Family & Parenting Institute  and the Kaiser Family Foundation). In many cases it’s these types of campaign groups who are the ones complaining to the ASA about the advergames.

Keep it real

Section 5 of the CAP Code contains the general rules regarding advertising to children (note that for the purposes of the CAP Code children are under 16).

An important rule is rule 5.2 which requires that ads targeted at children mustn’t exploit their credulity, loyalty, vulnerability or lack of experience. As part of this rule, children mustn’t be made to feel inferior, unpopular, or cowardly etc for not buying the product.

In the previous post, I referred to the recent adjudication regarding a series of online Weetabix advergames. The games included “Weetos Leap of Faith” (in which players tried to make a Weeto leap into a bowl of milk) and “WeetaKid” (in which the aim was to control a character in collecting as many Weetabix as possible against the clock). In that adjudication, the ASA looked at various rules under the CAP Code and held that, amongst other things, the rules regarding the exploitation of children’s vulnerabilities had been breached. This was due in particular to the fact that some of the games (on a smartphone app which had been created as part of the campaign) featured various on-screen prompts which encouraged the character (“Weetakid”) to eat. The prompts included the following:

“I really think you should eat something. How about it?”

“What?! No Weetabix?! Why make things harder for yourself?”

“Tired is not a good look for you. Why not eat something?”

Despite Weetabix’s argument that children who played computer games disassociated what happened in the game from the real world, the ASA thought that the prompts blurred the lines between the “fantastical WeetaKid world and the real world”. The issue was that it hadn’t been made clear enough to children that the prompts were directed at the WeetaKid character rather than at the child playing the game. The ASA was also concerned that the language and tone of many of the prompts was persuasive and negative and could lead children to understand that if they didn’t eat Weetabix they were failing in some way.

For grown-up eyes only

When it comes to alcohol, advertisers have to tread very carefully. Section 18 of the CAP Code contains the social responsibility rules (i.e. that ads shouldn’t imply, condone or encourage immoderate, irresponsible or anti-social drinking).

In particular, rule 18.15 contains a specific requirement that ads for alcohol mustn’t be directed at under 18’s through the selection of media or the context in which they appear. In determining whether any media are directed at children, the CAP Code contains the following specific test:

“No medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age.”

In the previous post, I referred to an adjudication from 2008 where the ASA held that Coors had not made an unbranded screenshot sufficiently identifiable as being an ad for its online Carling football game. In that adjudication the ASA also held that Coors had breached the CAP code by targeting an alcohol ad at under 18s through the selection of certain media.

The issue in the Carling adjudication was that Coors were unable to provide satisfactory evidence to the ASA that the Mousebreaker site (which hosted the screenshot) had an audience of fewer than 25% under 18s.

It’s interesting to note that Coors had inserted an age verification page which asked for the date of birth of the visitor before the game could actually be played on the Carling website. However, despite the age-gating mechanism, the ASA still thought there was a breach due to the appearance on the Mousebreaker site of the screenshot which advertised the game.

Keep the kids healthy

Aside from booze, by far the most common area of complaint about advergames has been in relation to food (sweets and breakfast cereals in particular).

Section 15 of the CAP Code contains the rules regarding food advertising and includes specific rules about food and soft drinks marketing to children. These rules sit in the broader context of public health policy which increasingly emphasises good dietary behaviour and an active lifestyle etc.

An important rule in section 15 regarding children is rule 15.11. This rule requires that ads mustn’t condone or encourage poor nutritional habits or an unhealthy lifestyle in children.

In the Weetabix adjudication referred to above, the complainants (Professor Agnes Nairn and the Family and Parenting Institute) had argued that by featuring Weetos cereal and the Weetos logo, the advergames were generally advertising the Weetos brand and therefore, by association, were also advertising Weetos Bars, which are classified as a product high in fat, salt or sugar (HFSS).

However, the ASA thought this was a tenuous argument and didn’t think this breached rule 15.11. This was because, firstly, Weetos Bars were not actually shown in any of the games themselves, and secondly, the rule in the CAP Code is that advergames must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children, not that HFSS products cannot be advertised to children at all (note that the rules in broadcast, as opposed to non-broadcast media are more stringent). Provided advertising an HFSS product is done responsibly and makes it clear that the product is a treat, the ad can be compliant.

Almost exactly a year before the Weetabix adjudication, the ASA had come to a similar conclusion in an adjudication regarding an advergame for the Kellogs Krave cereal. In this adjudication a campaign group (Sustain: The Alliance For Better Food & Farming) complained that the advergame (which was hosted on Facebook) encouraged poor nutritional habits and an unhealthy lifestyle in children because it featured a Krave cereal piece dressed as a super hero chasing and jumping on pieces of chocolate. In this case, the ASA thought there was no breach because Kellog’s had taken sufficient steps to prevent children from accessing the game. Users were required to log-in to Facebook in order to play – at the point of log-in, the user’s profile was checked to ensure they were over 16 before they could click through to play the game.

A few months after the Kellogs adjudication in August last year, there were four further adjudications regarding advergames which all involved Rule 15.11 (amongst others). These adjudications were each initiated following one complaint to the ASA by Sustain as part of its Children’s Food Campaign.

The first of these adjudications was against Dunhills (the maker of Haribo sweets). The complaint related to a game on the Haribo site where a cartoon bear collected Super Mix sweets. In this case there was no breach of rule 15.11 because the consumption of the sweets was presented in a sufficiently abstract manner. The ASA therefore thought it unlikely that children playing the game would be encouraged to replicate the game character’s consumption.

The next adjudication related to a Sugar Puffs game on the Honey Monster website. Again, no breach of rule 15.11 was found. The game featured the Honey Monster trying to eat as many Sugar Puffs as possible. However, the ASA thought that, just as for the Haribo game, the consumption of Sugar Puffs had been represented in an abstract way (with the Honey Monster running through a maze, trying to avoid wasps) and that players were unlikely to associate the Honey Monster’s consumption of the product with their own.

Sustain were yet again unsuccessful in the next adjudication which related to an online Chewits game provided by Leaf Confectionery. The object of the game was to move “Chewie the dinosaur” around the landscape and to find and eat nine different flavoured Chewits. Sustain complained that the game actively encouraged and rewarded images of excessive consumption of the product. However, the ASA thought that the Chewits game didn’t encourage poor nutritional habits in children because it was set in a fictitious setting with a cartoon dinosaur chewing on British landmarks in order to release Chewits – therefore the consumption of Chewits was represented in an abstract way. The ASA also noted that only one sweet of each flavour was shown being consumed by the character in the game and that the total number of Chewits that could be collected in the game was less than the number of Chewits found in a standard pack.

It’s also worth noting that Leaf Confectionery had made available information on the website about how to enjoy Chewits responsibly along with a link to the “Be treatwise” website – the ASA took this into consideration when deciding that there was no breach.

Even though the ASA didn’t uphold Sustain’s complaints about the Krave, Haribo, Sugar Puffs or Chewitts advergames, Sustain did finally have some success in the last of its advergame complaints from August last year, this time against Swizzels Matlow (who make Refreshers and Love Hearts).

The Swizzels website featured an area called “Swizzels Town” containing games, photographs and videos. In particular, there were two games, the first of which involved catching falling sweets into a sweet bag, and the second which involved collecting cola bottles in a maze. Sustain complained the site would make the children interacting with it eat the promoted sweets more frequently.

Regarding the first game (which involved catching falling sweets into a sweet bag), the ASA considered that it wasn’t very long so the total number of sweets accumulated was not particularly high or likely to encourage poor nutritional habits in children.

However, a different conclusion was reached about the second game (which involved collecting cola bottles in a maze). The was some on-screen copy with the game which stated the following:

“Cheeky children visiting the factory have scattered Cola Bottles all around the corridors – you must rush round and collect them all while avoiding the angry parents… Good Luck!”

The game enabled the player to collect almost 100 cola bottles. If players were caught by the “angry parents” in the game, they would lose a life. The ASA thought that the game was quite long (it had three levels) and condoned eating a large number of sweets whilst hiding the fact from parents. All these factors taken together meant that the ASA concluded that the game did irresponsibly encourage poor nutritional habits and an unhealthy lifestyle in children, and was therefore in breach.

It takes one

All of these adjudications are a harsh reminder that it only takes one complaint to start an ASA investigation. Also, the fact that there may have been only one complaint is no guarantee that the ASA will look favourably on the ad. It’s worth noting that in the Weetabix adjudication, Weetabix argued that the game had been available since September 2011 (the adjudication was published in February 2013) and, other than the single complaint from Professor Agnes Nairn and the Family and Parenting Institute which prompted the investigation, there had been no complaints from parents that the games had caused children distress. However, this didn’t prevent the ASA from deciding that there was a breach.