With rail passengers now able to access free information on the best ticket deals, and the expected raft of price comparison websites and apps, it’s more important than ever that the rail industry is au fait with advertising law.
To that end, how much is actually known about what can be claimed in adverts or how easy it is to fall foul of the law? Generally, the law regulates all forms of advertising and is contained in the 12th edition of the UK Code of non-broadcast Advertising, Sales Promotion and Direct Marketing, or by its more commonly known name – the CAP Code. The Advertising Standards Authority (ASA) is responsible for ensuring that organisations comply with the Code.
So, against that background, what does the Code say about the wide ranging statements at the start of this article?
Well, the Code says that advertising, among other things, must be legal, decent, honest and truthful. That definition is wide enough to cover a host of matters. And the Code goes further and says advertisements must not be misleading, inaccurate, ambiguous or exaggerate.
So, where an organisation says ‘train to London 35 minutes’, is this likely to be within the spirit of the Code? Could such statements actually be misleading and possibly an exaggeration of the organisation’s capability? In particular, how can a company prove each element of the statement: namely that the train can travel from one location to another location within the time limit. And, as happened in a real life case, if you include pictures as part of the advertisement, do the rules apply to them as well? Could they be considered to be inaccurate or incorrect or otherwise make the advertisement ambiguous?
In addition, the phrases ‘Can’t be beaten on quality or price’ and ‘Second to none’ could be considered comparative. So if you make such statements, do you have to comply with the Code? Or are there no restrictions?
In short, an organisation cannot lawfully make comparisons with third parties unless there is substantiation for the claims being made. This includes frequently made claims in the industry that trains are faster than road or, on occasion, air travel.
But, to complicate matters, what constitutes substantiation depends upon the claims being made. A statement that products are more durable and longer lasting than others would need to be upheld in independent reports and studies. Similarly, claims about ‘quality’ and ‘price’ will require research and detailed comparative studies. And when it comes to comparing train journeys with the forms of transport, it is easy to fall foul of the Code if you haven’t carried out rigorous research. Such sweeping statements can’t just be made in isolation.
As always, there are implications if you don’t comply with the legal requirements, in this case the Code. As the starting point, a complaint may be made by the general public, competitors or anyone else who has an interest in the claims made in the advertisement. The ASA can require a company to respond to a complaint – and there’s a time limit for doing so. Failure to respond, or to respond within time, is itself a potential breach of the Code. And the number of complaints received by the ASA is not insignificant. On that point, recent reports state that the ASA received 31,458 complaints resulting in a number of advertisements being changed or withdrawn in 2011.
Tottenham Hale is not ‘London’
In September 2010, the ASA received a complaint about a poster. At Stansted Airport, there were a number of posters on behalf of a rail service seemingly aimed at persuading people to use the train to continue their journey and travel on to London. The poster contained an image of a train and text which said: ‘35 minutes’ or ‘train to London 35 minutes’. In addition the posters included several well-known London landmarks, such as Big Ben, the London Eye and Nelson’s Column.
Only one complaint was received by the ASA about the poster. But the ASA can investigate regardless of the number of complaints received. The basis of the complaint was whether it was, in fact, possible to travel from Stansted to London/the featured landmarks within 35 minutes.
The company running the posters made a number of claims as substantiation for the advertisement. Firstly, it responded that a large number of foreign travellers arrived at Stansted and that it had therefore selected easily understandable items: an internationally recognised symbol for a train and 35 minutes, again in symbols. Secondly, it had used the iconic London Skyline to make it clear that the intended train destination was London. Thirdly, the trains reached Tottenham Hale within the 35 minutes stated in the poster. From there, the company said that all trains travelled from Stansted to Liverpool Street Station which was in the heart of the city.
Taken together, those look like fairly compelling arguments. After all, it was possible to get to London in 35 minutes as claimed and wasn’t it better to keep the posters succinct and to the point? Surely that made it easier for foreign visitors to understand? After all, why mention the real destination being Tottenham Hale? How many visitors might associate ‘Tottenham Hale’ with ‘London’ or realise how easy it was to travel from there to the featured London landmarks?
The ASA disagreed. While it was true that the train reached Tottenham Hale in 35 minutes, from there travellers had to use the Victoria line to travel into central London. The iconic landmarks weren’t based in Tottenham Hale or within 35 minutes of Stansted as suggested by the poster.
Therefore, the complaint was upheld. The inference was that travellers would be taken to central London. This was not the case. So the intended simplicity of the poster could in fact cause confusion. On that basis, the ASA said that the advertisement breached the CAP Code in two respects: substantiation and truthfulness.
Similar adjudications followed where companies claimed that it was cheaper to travel by train than other methods, such as a complaint heard last year. In that instance, the advertisement actually said: ‘it’s cheaper by train than by plane this Autumn’. The company making the claims had not carried out a truly representative study and therefore the advertisement was held to be misleading advertising, lacking in substantiation and found to be exaggeration. It also breached the Code on comparisons with identifiable competitors and price comparisons.
And these cases are only two of many. Others involved an internet banner advertisement for a well-known discount marketing company, where a complaint was upheld. And in another, the ASA partially upheld a complaint involving an advert which asked: ‘Does your commute compute? How much could you save a year if you went to work by train?’.
Interestingly, many cases heard by the ASA have more than one aspect in common. Not only are they related to the industry, but the decisions often revolve on the individual facts. The precise wording can determine whether or not a complaint is upheld. As well, many of the cases started because of a single complainant. So it took only one complaint, in some instances, to shut down an entire marketing campaign. And those complaints are now a matter of public record.
Ultimately therefore, it is important to comply with the CAP Code. If not, the adverse publicity alone could do irreparable damage to your business.