Legal
Laying down the law Claudia Gerrard
Advertising in the rail industry
Claudia Gerrard asks how much the rail industry knows about what it can say in advertisements and how easy it can be to fall foul of the law
‘Train to London - 35 minutes’ ‘We can’t be beaten on quality or price’ ‘Train tickets 70% off’
W
ith 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
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.
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
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.
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
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
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