09/459
Appeal 09/075
DECISION
Meeting 8 September 2009
Complaint 09/459
Complainants: C. Turner & D. Woodfield
Advertisement: Super Liquor Holdings Limited
Complaint: The newspaper advertisement for Super Liquor was headed
“SUPERRIFIC WAYS TO STAY WARM”. Beside this heading was an image of a
person’s open mouth and a handful of chillies, implying that they were about to eat
the chillies. Smaller images of chillies appeared through out the advertisement.
In the advertisement a range of liquor products was depicted together with their
respective prices.
Complainant, C. Turner, said:
“I write to complain about the enclosed Super Liquor advertisement taken from the
Waikato Times of 15 July 2009.
The advertisement's heading suggests that the advertised products will allow
consumers to stay warm. This is to suggest that liquor will have a beneficial effect or,
in the words of the liquor code, "…suggest that liquor will create a significant change
in mood ...” I believe that the advertisement is thus in breach of Principle 2,
Guideline 2(c) of the code.”
Duplicate Complainant, D. Woodfield, expressed the same concern about the
advertisement, which had been published in the New Zealand Herald.
(C. Turner’s complaint also included: ”…At the bottom of the advertisement the Shots
Range is stated to have 20% Alc/vol; this is a very high percentage and I believe that
the advertisement is in breach of Principle 1, Guideline 1(a).”
The Chairman ruled on 28 July 2009, that there were no grounds for this aspect of
the complaint to proceed. See Chairman’s Ruling 09/459.)
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The Chairman ruled that the following provisions were relevant:
Code for Advertising Liquor
Principle 2: Liquor advertisements shall observe a high standard of social
responsibility.
Guideline 2(c): While advertisements may depict the consumption of liquor as
incidental to a friendly and happy social environment, they shall not suggest that
liquor will create a significant or desirable change in mood or social environment,
or that liquor contributes to or is a reward for success or achievement of any kind.
The Advertiser, Super Liquor Holdings Limited, said:
“You will receive a more formal response to this complaint from our advertising
agency (.99) today. Essentially they will say that this message is intended to have fun
and convey our message with light-hearted humour and to, again, play on our
SUPER wording in our company name. It is part of a series of quirky ads for this
purpose.
We agree with .99 when they say that we believe that a consumer would take it this
way and would not take it as a promise of a change in mood specifically referred to in
the code of practice. We repeat our statement of last month whereby we are
committed to the code and very careful to avoid any potential breach. In this
instance, we do not believe we are in breach and would ask the complaints board to
consider our comments in determining their ruling.”
The Agency, .99 Enterprises, said:
“This response is on behalf of 99 Enterprises and Super Liquor Holdings. We refer to
your letter enclosing C. Turner's letter of complaint about the above press ad. The
purpose of this letter is to respond to the complaint and we request that you please
refer this letter to the Complaints Board for consideration.
The press advertisement we are referring to "Superrific Ways to Stay Warm".
Our campaign press ad messages are intended to have fun and convey light-hearted
humour, and as such each press ad has a quirky picture with a line that relates.
In this instance there is an image of a man about to eat a handful of super hot red
chillies with the headline "Superrific ways to stay warm". The headline is in direct
relation to what is happening in the picture beside it.
We do not believe that a consumer would misunderstand the communication or in
any way take it as a promise to "create a significant or desirable change in mood or
social environment, or that liquor contributes to or is a reward for success or
achievement of any kind".
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That said, we are concerned that C. Turner has issue with the ad and as such we will
not run it in any further publications.
I trust that this response addresses all concerns. Please do not hesitate to contact
me should you require any further information.”
The Media, Waikato Times, said:
“We also do not agree that Principle 2 Guideline 2 (c) has been breached as the
reference to "Superrific ways to stay warm" is a play on words with their company
name being Super Liquor. The reference to the "ways to stay warm" could be
interpreted as staying indoors and having a drink, rather than being out in the cold in
the middle of winter. This then does not breach Principle 2 either as there is no direct
inference to a lack of social responsibility. There is an image of a person about to eat
a bunch of chillies and this suggests warmth but not drunken or irresponsible
behaviour.
The advert was placed through OMD and was supplied to us in a print ready format.”
The Media, APN New Zealand, said:
“… When this advertisement was accepted by The New Zealand Herald, it was not
apparent that the advert was in breach of the Code for Advertising liquor.
We did not consult the advertising code in relation to this advertisement because the
content did not raise any warning bells at any point during the booking process.
The advertisement in question was accepted in good faith from SuperLiquor.”
Deliberation
The Complaints Board read the relevant correspondence and the newspaper
advertisement. It noted Complainants, C. Turner and D. Woodfield, were of the view
that the advertisement's heading suggested that the advertised products will allow
consumers to stay warm, which in turn equated to the suggestion that liquor will have
a beneficial effect or, in the words of the liquor code, "…suggest that liquor will create
a significant change in mood ...”, breaching Principle 2, Guideline 2(c) of the code.”
The Chairman directed the Complaints Board to consider the complaint with
reference Principle 2, Guideline 2(c) of the Code for Advertising Liquor.
In making its determination the Complaints Board was required to consider whether
the liquor advertisement before it observed a high standard of social responsibility
as required by Principle 2, and also whether it suggested that liquor would create a
significant or desirable change in mood, and thereby was in breach of Guideline
2(c).
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The Complaints Board noted that the advice from the Agency, .99 Enterprises, that
the advertisement would not be run in any further publications. It acknowledged this
self-regulatory undertaking.
The Complaints Board noted that responses received advised that the
advertisement was part of a series produced for Super Liquor, all of which contained
a play on the word “super”. However, in accordance with its usual procedure, the
Complaints Board was required to consider each advertisement in a stand alone
capacity and determine, whether in its view, it met the requirements of the
Advertising Codes.
Turning to the advertisement before it, the Complaints Board noted the image
beside the heading, which implied that a person was going to keep warm by eating a
handful of chillies. This, it agreed, illustrated a play on the word “super”, that is the
chillies were “super hot”. The Complaints Board was also of the view that it
illustrated the concept of keeping warm in a hyperbolic and humorous manner.
In the Complaints Board’s view, the advertisement, which was essentially a product
and price advertisement, did not meet the threshold to be said to suggest that liquor
would create a significant or desirable change in mood.
As such, the Complaint Board ruled that it met the high standard of social
responsibility required by Principle 2 and was not in breach of that provision.
Furthermore it ruled that it was not in breach of Guideline 2(c).
Accordingly, the Complaints Board ruled to not uphold the complaint.
Decision: Complaint Not Upheld
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DECISION
Chairman’s Ruling
28 July 2009
Complaint 09/459
Complainant: C. Turner
Advertisement: Super Liquor Holdings Limited
Complaint: The newspaper advertisement for Super Liquor was headed
“SUPERRIFIC WAYS TO STAY WARM”. Beside this heading was an image of a
person’s open mouth and a handful of chilies, implying that they were about to eat
the chilies. The advertisement depicted a range of liquor products together with their
respective prices. The products included: “SHOTS RANGE 6 x 30ML SHOTS 20%
ALC/VOL $10.99 PACK”.
Complainant, C. Turner, said: “… At the bottom of the advertisement the Shots
Range is stated to have 20% Alc/vol; this is a very high percentage and I believe that
the advertisement is in breach of Principle 1, Guideline 1(a).”
The relevant provision was Principle 1, Guideline 1(a) of the Code for
Advertising Liquor.
The Chairman noted this aspect of C. Turner’s complaint about the above
advertisement. In her view the advertisement could not be said to emphasise the
product’s alcoholic strength, as being a price and product advertisement, the
Advertiser could state those details. In making her ruling, the Chairman referred to
Decision 05/454 where the Complaints Board said in its deliberation:
“As a preliminary matter, the Complaints Board confirmed that it was not
considered a breach of the Code to state the alcoholic strength of a product in
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an advertisement, as that was factual information regarding the product, and
could not be said to “emphasise a product’s alcoholic strength”. However,
drawing attention to the alcoholic strength of a product, with either additional
wording or an image, except where the product was a light (lite) alcohol product,
would be considered to “emphasise a product’s alcoholic strength”, and thereby
the advertisement would be in breach of the Code.”
Turning to the advertisement, the Chairman noted that other products included in the
advertisement also included references to their alcohol content per volume in the
same manner. Accordingly, the Chairman was of the view that advertisement did not
conflict with, or detract from, the need for responsibility and moderation in liquor
consumption in relation to this issue and there was no apparent breach of Principle 1
or Guideline 1(a) of the Code for Liquor Advertising.
The Chairman ruled that there were no grounds for the complaint to proceed.
Chairman’s Ruling: Complaint No Grounds to Proceed
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DECISION
Chairman’s Ruling
5 November 2009
Complaint 09/459
Appeal 09/075
Complainants: C. Turner & D. Woodfield
Advertisement: Super Liquor Holdings Limited
Applicants: C. Turner & D. Woodfield
Complaint: The newspaper advertisement for Super Liquor was headed
“SUPERRIFIC WAYS TO STAY WARM”. Beside this heading was an image of a
person’s open mouth and a handful of chillies, implying that they were about to eat
the chillies. Smaller images of chillies appeared through out the advertisement.
In the advertisement a range of liquor products was depicted together with their
respective prices.
Complainant, C. Turner, said:
“I write to complain about the enclosed Super Liquor advertisement taken from the
Waikato Times of 15 July 2009.
The advertisement's heading suggests that the advertised products will allow
consumers to stay warm. This is to suggest that liquor will have a beneficial effect or,
in the words of the liquor code, "…suggest that liquor will create a significant change
in mood ...” I believe that the advertisement is thus in breach of Principle 2,
Guideline 2(c) of the code.”
Duplicate Complainant, D. Woodfield, expressed the same concern about the
advertisement, which had been published in the New Zealand Herald.
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Appeal 09/075
(C. Turner’s complaint also included: ”…At the bottom of the advertisement the Shots
Range is stated to have 20% Alc/vol; this is a very high percentage and I believe that
the advertisement is in breach of Principle 1, Guideline 1(a).”
The Chairman ruled on 28 July 2009, that there were no grounds for this aspect of
the complaint to proceed. See Chairman’s Ruling 09/459.)
The Chairman ruled that the relevant provisions were Principle 2 and
Guideline 2(c) of the Code for Advertising Liquor.
Application for appeal
Applicant, C. Turner, submitted an application for appeal:
“I write to appeal against the Board's decision on this complaint on the grounds that
the decision was against the weight of the evidence.
I contend that few, if any, people would recognise the vegetable material shown as
chillies. They would be much more likely to connect SUPERRIFIC WAYS TO STAY
WARM with SUPERLIQUOR. (My emphasis)
Note the use of the plural "ways". This can only refer to the advertised products and
to say that these products will make the consumer warm is to suggest a change of
mood.
The Board noted that that the advertisement contained a play on the word "super". It
appears to believe that by using a play on words the advertiser is not subject to the
liquor advertising code. There is nothing in the code that confers immunity to
advertisers who use word play.
in my complaint I did not raise the point that not only does the advertisement
suggest a change of mood; it also suggests a beneficial effect.
The Board is empowered to make common-sense decisions. It now asks me to
believe that people endowed with common sense would look at the advertisement
and say to themselves "Ah, yes this advertisement is telling us that chillies are
"ways' to keep warm".”
Duplicate Complainant, G. Woodfield, also submitted an application for appeal:
“I have shown this advertisement for liquor to various non-involved persons and they
all agree that this is an advertisement suggesting that liquor is advertised as a way
to get warm. Most did not recognise the minor picture at the top of the advertisement
or even the significance of the chillis. The majority of the ad is focused on the wide
variety of alcohol types, "ways" to stay warm ie to change mood. Alcohol is
commonly known to cause a transient feeling of warmth.
Observers also noted that the "word" superrific, suggested super prices of the
alcoholic products and the relationship of chillies was misleading as people do not
eat chillies to get warm.
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I cannot agree that this ad shows "a high standard of social responsibility…”
The Chairman perused the application for appeal. She noted that there were five
grounds upon which an appeal was able to proceed. These were listed at Clause
6(a) of the Second Schedule of the Advertising Standards Complaints Board
Complaints Procedures and were as follows:
(i)
The proper procedures have not been followed.
(ii)
There is new evidence of sufficient substance to affect the decision.
(iii)
Evidence provided to the Complaints Board has been misinterpreted to
the extent that it has affected the decision.
(iv)
The decision is against the weight of evidence.
(v)
It is in the interests of natural justice that the matter be reheard.
The Chairman noted where the Applicants said “I contend that few, if any, people
would recognise the vegetable material shown as chillies. They would be much
more likely to connect SUPERRIFIC WAYS TO STAY WARM with SUPERLIQUOR.
(My emphasis)
Note the use of the plural "ways". This can only refer to the advertised products and
to say that these products will make the consumer warm is to suggest a change of
mood.”
And further “Most did not recognise the minor picture at the top of the advertisement
or even the significance of the chillis. The majority of the ad is focused on the wide
variety of alcohol types, "ways" to stay warm ie to change mood.”
The Chairman was of the view that the Applicants appeal applications sufficiently
raised an issue of whether or not the Complaints Board’s Decision had been against
the weight of the evidence presented to it. She noted that this was a ground upon
which an appeal application could be accepted. Accordingly, she ruled that the
applications for appeal be accepted, and the complaint be placed before the
Advertising Standards Complaints Appeal Board for their consideration.
Chairman’s Ruling: Application for Appeal Accepted
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DECISION
Meeting 1 December 2009
Complaint 09/459
Appeal 09/075
Complainants: C. Turner & D. Woodfield
Advertisement: Super Liquor Holdings Limited
Applicants: C. Turner & D. Woodfield
Complaint: The newspaper advertisement for Super Liquor was headed
“SUPERRIFIC WAYS TO STAY WARM”. Beside this heading was an image of a
person’s open mouth and a handful of chillies, implying that they were about to eat
the chillies. Smaller images of chillies appeared through out the advertisement.
In the advertisement a range of liquor products was depicted together with their
respective prices.
Complainant, C. Turner, said:
“I write to complain about the enclosed Super Liquor advertisement taken from the
Waikato Times of 15 July 2009.
The advertisement's heading suggests that the advertised products will allow
consumers to stay warm. This is to suggest that liquor will have a beneficial effect or,
in the words of the liquor code, "…suggest that liquor will create a significant change
in mood ...” I believe that the advertisement is thus in breach of Principle 2,
Guideline 2(c) of the code.”
Duplicate Complainant, D. Woodfield, expressed the same concern about the
advertisement, which had been published in the New Zealand Herald.
(C. Turner’s complaint also included: ”…At the bottom of the advertisement the Shots
Range is stated to have 20% Alc/vol; this is a very high percentage and I believe that
the advertisement is in breach of Principle 1, Guideline 1(a).”
The Chairman ruled on 28 July 2009, that there were no grounds for this aspect of
the complaint to proceed. See Chairman’s Ruling 09/459.)
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The Chairman ruled that the following provisions were relevant:
Code for Advertising Liquor
Principle 2: Liquor advertisements shall observe a high standard of social
responsibility.
Guideline 2(c): While advertisements may depict the consumption of liquor as
incidental to a friendly and happy social environment, they shall not suggest that
liquor will create a significant or desirable change in mood or social environment,
or that liquor contributes to or is a reward for success or achievement of any kind.
The Complaints Board ruled to not uphold the complaint at its meeting on 8
September 2009. It’s deliberation said, in part:
“…The Complaints Board noted that responses received advised that the
advertisement was part of a series produced for Super Liquor, all of which contained
a play on the word “super”. However, in accordance with its usual procedure, the
Complaints Board was required to consider each advertisement in a stand alone
capacity and determine, whether in its view, it met the requirements of the
Advertising Codes.
Turning to the advertisement before it, the Complaints Board noted the image
beside the heading, which implied that a person was going to keep warm by eating a
handful of chillies. This, it agreed, illustrated a play on the word “super”, that is the
chillies were “super hot”. The Complaints Board was also of the view that it
illustrated the concept of keeping warm in a hyperbolic and humorous manner.
In the Complaints Board’s view, the advertisement, which was essentially a product
and price advertisement, did not meet the threshold to be said to suggest that liquor
would create a significant or desirable change in mood.
As such, the Complaint Board ruled that it met the high standard of social
responsibility required by Principle 2 and was not in breach of that provision.
Furthermore it ruled that it was not in breach of Guideline 2(c).”
Application for appeal
Applicant, C. Turner, submitted an application for appeal:
“I write to appeal against the Board's decision on this complaint on the grounds that
the decision was against the weight of the evidence.
I contend that few, if any, people would recognize the vegetable material shown as
chillies. They would be much more likely to connect SUPERRIFIC WAYS TO STAY
WARM with SUPERLIQUOR. (My emphasis)
Note the use of the plural "ways". This can only refer to the advertised products and
to say that these products will make the consumer warm is to suggest a change of
mood.
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Appeal 09/075
The Board noted that that the advertisement contained a play on the word "super". It
appears to believe that by using a play on words the advertiser is not subject to the
liquor advertising code. There is nothing in the code that confers immunity to
advertisers who use word play.
In my complaint I did not raise the point that not only does the advertisement
suggest a change of mood; it also suggests a beneficial effect.
The Board is empowered to make common-sense decisions. It now asks me to
believe that people endowed with common sense would look at the advertisement
and say to themselves "Ah, yes this advertisement is telling us that chillies are
"ways' to keep warm".”
Duplicate Complainant, G. Woodfield, also submitted an application for appeal:
“I have shown this advertisement for liquor to various non-involved persons and they
all agree that this is an advertisement suggesting that liquor is advertised as a way
to get warm. Most did not recognise the minor picture at the top of the advertisement
or even the significance of the chillis. The majority of the ad is focused on the wide
variety of alcohol types, "ways" to stay warm ie to change mood. Alcohol is
commonly known to cause a transient feeling of warmth.
Observers also noted that the "word" superrific, suggested super prices of the
alcoholic products and the relationship of chillies was misleading as people do not
eat chillies to get warm.
I cannot agree that this ad shows "a high standard of social responsibility…”
Chairman’s Ruling
The Chairman ruled on 5 November 2009 that the applications for appeal be
accepted and the matter be placed before the Appeal Board for their consideration.
The Agency, .99 Enterprises, also on behalf of the Advertiser, Super Liquor
Holdings, said:
“This response is on behalf of .99 Enterprises and Super Liquor Holdings. We refer
to your letter enclosing the complainants appeal letter about the above press
advertisement. The purpose of this letter is to respond to the complaint and we
request that you please refer this letter to the Appeal Board for consideration.
The press advertisement we are referring to is 'Superrific Ways to Stay Warm'.
As we submitted in our previous response, our campaign images are intended to
have fun and convey light-hearted humour, and as such each press ad has a quirky
picture with a line that relates.
In this instance there is an image of a man about to eat a handful of super hot red
chillies with the headline 'SUPERRIFIC WAYS TO STAY WARM'. The headline is in
direct relation to what is happening in the picture beside it. The plural 'ways'
correlates to the large amount of chillies about to be consumed. The headline and
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image are in a dedicated space at the top of the ad, sectioned out of the product
space.
As stated in our previous response, we do not believe that a consumer would
misunderstand the communication or in any way take it as a promise to "create a
significant or desirable change in mood or social environment", as per the original
complaint. The board dismissed the complaint.
We believe that the complainant's appeal presents misleading information. The
complainant has rewritten the headline and placed emphasis on words that we didn't
place emphasis on. The complainant's exact phrasing in the appeal letter is
'SUPERRIFIC WAYS TO STAY WARM with SUPERLIQUOR'. As stated above, the
actual headline is 'SUPERRIFIC WAYS TO STAY WARM'. Our advertisement didn't
say 'with SUPERLIQUOR', and we didn't do this because we knew that would
change the meaning of the ad and take it away from being about the chillies. And we
certainly didn't place bolded emphasis on the word 'SUPER'. When considering this
appeal, we ask the Board to disregard the complainant's incorrect representation of
the headline, and refer to the actual headline in the advertisement.
However, also as stated in our previous response, we were concerned that C.
Turner had issues with the ad, and we immediately pulled it from running in any
further publications, and invested in the creation of a replacement advertisement.
On this basis we believe that no further action should be taken.
I trust that this response addresses all concerns. Please do not hesitate to contact
me should you require any further information.”
The Advertiser, Super Liquor Holdings said:
“You will now have received the response from .99 to appeal 09/075. This refers to
our ad in July 2009, originally complained against by complaint 09/459.
We do not believe there is anything in the letters of appeal that would change the
situation considered by the Board under compaint 09/459. As stated in the letter
from .99, this ad is one of a series which uses the 'super' connection to have fun in a
quirky way and attract attention to the products on sale for that period. It does not (in
our opinion) offer any change in mood or beneficial effect from the purchase of
these products. Rather it suggests that they are good value and the headline
referring to the chillies is perhaps more about the value than anything else. They are
a 'hot' offer - this being the only possible connection to the chillies.
I believe our agency has been shown to be very responsible in this process and
careful to ensure our ads do not breach the standards. In this case, given the
complaints, the ad has been discontinued - not because we considered the
complaint correct but rather to avoid any ongoing concerns. We believe this has
demonstrated a responsible attitude and a willingness to respond in a positive way if
the Board considers the matter warrants consideration
We trust this explanation and our actions will be acceptable to your Board.”
The Media, The Waikato Times, said:
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“We have nothing to add to the issue and will accept the decision at the appeal
outcome”.
The Media, APN New Zealand, said:
“I refer to our original response dated 28 August.
When this advertisement was accepted by The New Zealand Herald, it was not
apparent that the advert was in breach of the codes for Advertising liquor.
The advertisement in question was accepted in good faith from SuperLiquor.
We stand by our original response.”
Deliberation
The Appeal Board read all the correspondence relevant to the complaint together
with the Complaints Board Decision and the Chairman’s Ruling. It also reviewed the
newspaper advertisement.
As a preliminary matter, the Appeal Board confirmed that its role was to consider the
matter de novo, that is starting from the initial complaint, as accepted by the
Chairman, and reviewing all subsequent correspondence, rulings and submissions,
and considering the matter afresh.
The Appeal Board noted that the matter which was the subject of the appeal related
to the statement in the advertisement for SuperLiquor which said: “Superrific ways to
stay warm.” This statement was accompanied by an image of a person holding a
handful of chillies up to their mouth. The Appeal Board noted that the rest of the
advertisement contained images of liquor products on sale with their prices, and also
that small images of chillies were included throughout the advertisement.
Complainants, C. Turner and D. Woodfield, considered that the advertisement
promoted alcohol as a way to stay warm and thereby indicated a change of mood,
breaching in breach of the Code for Advertising Liquor.
The Agency, .99, and the Advertiser, SuperLiquor, advised the Appeal Board that the
wording used in the advertisement was “one of a series which uses the ‘super’
connection to have fun in a quirky way and attract attention to the products on sale
for that period.” The Appeal Board also noted that the advertisement before it had
been removed from running in other publications, following receipt of the complaint,
and it acknowledged the self-regulatory action taken by the Advertiser in response to
complaints.
The Appeal Board confirmed the importance of the Liquor Advertising Pre-Vetting
Service as part of the self-regulatory process and the value of obtaining preclearance for advertising which made claims similar to that before it.
The Appeal Board re-iterated the long-standing convention applied by both the
Complaints Board and the Appeal Board with regard to advertisements being
required to stand-alone in relation to compliance with the ASA Codes of Practice.
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The Appeal Board noted that the wording of the advertisement referenced in C.
Turner’s appeal application was different to the actual wording in the advertisement.
However, the Appeal Board did not consider this material to its deliberation. The
Appeal Board focused its attention on the wording “Superrific ways to stay warm” and
the accompanying images in the advertisement before it.
A majority of the Appeal Board considered that the wording “Superrific ways to stay
warm” was a reference to the feeling of warmth, which could be regarded as a
“desirable change in mood”. In the majority view, ways to “stay warm”, in the context
of the advertisement, referred to both the chillies and the alcohol products.
Therefore, the majority of the Appeal Board ruled to uphold the complaint as the
statement and the imagery in the advertisement combined to be in breach of
Principle 2, Guideline 2(c) of the Code for Advertising Liquor. The majority also
considered the advertisement to be in breach of Principle 2 of the Code and the
requirement for a high standard of social responsibility in liquor advertisements.
A minority of the Appeal Board disagreed. The minority did not consider that likely
consumer interpretations of the price and product advertisement included a
“desirable change in mood”. The minority accepted that the wording and imagery
contained in the advertisement was lighthearted, and played on the SuperLiquor
brand name. The minority said that advertisement was not in breach of Principle 2
Guideline 2(c) of the Code for Advertising Liquor and had been prepared with a high
standard of social responsibility, thereby complying with Principle 2 of that Code.
However, in accordance with the majority, the Appeal Board ruled to allow the
appeal.
Decision: Appeal Allowed