Adverts' commitments can be interpreted as customer guarantees, ASA says

The Advertising Standards Authority (ASA) said firms need to take "extra care when using the term 'commitment' or 'committed' in an ad" because the words can sometimes be interpreted as being a firms' promise by consumers.

The ASA said British Gas had misled customers over commitments the firm made in adverts. The adverts detailed that the company was "committed" to pay same-day visits to its 'HomeCare' customers who had no heating or hot water and had reported the fault with the firm before 1pm.

The adverts appeared on TV, radio, in newspapers and in poster form and were likely to make customers think that British Gas offered a guaranteed service, even though it could not always deliver the service, the ASA said in its ruling.

"We noted the ‘committed’ claims were linked to an instruction to customers to call before 1pm, and we considered they were therefore likely to be interpreted as a promise to those customers who took action by the 1pm deadline," the ASA said in its ruling.

"We considered that marketers needed to take extra care when using the term 'commitment' or 'committed' in an ad, because, although a claim of commitment to provide good service was likely to be understood to be an advertiser’s aspiration, a similar claim of a commitment to provide, for example the cheapest price or as in this case to meet a stated response time, would likely be understood by consumers to be a promise or guarantee," the ASA said.

British Gas had argued that the adverts only detailed its intention to provide customers with a same-day service, rather than outlined a promise to deliver.

The company met a high-level of same-day service to HomeCare customers who reported a lack of heating or hot water before 1pm on days up until 28 November 2010, the ASA said. Adverse winter weather badly affected British Gas' ability to deliver a same-day service, it said.

Although the company stopped advertising the service after realising it could not satisfy demand, existing HomeCare customers were entitled to think they would receive the same-day service, the ASA said in its ruling.

Misleading adverts are prohibited under UK advertising rules. The rules governing print ads are set out in the Committee of Advertising Practice (CAP Code) while the Broadcast Committee of Advertising Practice Code (BCAP Code) states the rules for broadcast ads.

British Gas' TV and radio same-day service adverts breached the BCAP Code's rules on misleading advertising, the ASA said. Two press adverts and a poster ad for the company also breached CAP Code rules as the adverts were also misleading, it said.

The two newspaper ads and the poster ad were also in breach of other CAP Code rules, the ASA said.

Customers interpreting the adverts would be likely to think British Gas was claiming it guaranteed to provide a same-day service but those claims were exaggerated because British Gas could not maintain a high-level of same-day service during the bad winter weather, the ASA said.

The CAP Code prohibits marketers from exaggerating the capability or performance of a product.

Text in the adverts explaining that the same-day service was limited "during weekend, on public holidays and during exceptional peak demand" was not properly qualified, the ASA said.

The CAP Code states that adverts must clearly "state significant limitations and qualifications" and that the qualifications "may clarify but must not contradict the claims that they qualify".

"Consumers would understand the smallprint to refer to exclusions to a guarantee, rather than simply a qualification to British Gas’ intentions and aims," the ASA ruling said. The text was unclear and contradicted the main claims of the service, it said.

The adverts must not appear in their current form again, the ASA said.

"This is a classic example of the ASA not allowing a company to put out an ad at the margins of the rules," Iain Connor, an advertising expert with Pinsent Masons, the law firm behind OUT-LAW, said.

"The CAP Code must be complied with in spirit as well as to the letter of the Code.  Legal arguments which try to differentiate between a “business intention” and a customer “guarantee” are highly unlikely to be accepted given that the ASA applies a broad brush when considering how consumers will react to an ad," Connor said.

A customer's complaint about a third print advert for British Gas that also appeared in national newspapers was not upheld. That advert said British Gas was "committed" to begin installing a new boiler for customers the following day if they contacted the company before 1pm.

Because British Gas was "still able to successfully meet the high threshold" for the next-day service during the adverse conditions, the advert was not misleading, the ASA ruled.

"Although 100% of cases would have been ideal in supporting a guarantee claim, because British Gas had been able to show that they were able to provide the next day boiler installation service in the vast majority of cases, we considered that the claim ... was not misleading," it said.

Technology law news is also available from Bootlaw, a free resource for technology start-ups, with regular events hosted by Pinsent Masons.