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ADVERTISING STANDARDS COMPLAINTS BOARD PO Box 10-675 Wellington Telephone (04) 472-7852 Facsimile (04) 471-1785 Email [email protected] Website www.asa.co.nz 06/474 DECISION Meeting 31 January 2007 Complaint 06/474 Complainants: N. Taiapa and Others Advertisement: BurgerFuel Complaint: The BurgerFuel flyer advertisement carried white chalk-like headings which said: “BURGER FUELS WHITE CHRISTMAS SUPER MASSIVE GIFT HAMPER” Images included a large hamburger on a soft looking white substance, a bottle of Coca-Cola, a rolled American dollar note, and the face of Pablo Escobar Gaviria above a line saying “LIFE’S TOO SHORT TO” and Kate Moss above a line saying “EAT BAD BURGERS”. The price was stated as “ONLY $11.00”. The offer below said: Get into any BurgerFuel store and buy a ‘White Christmas Combo’, fill your details on the back of the receipt and place it in the entry box to WIN… 1X return ticket to anywhere in South America* a white Playstation PSP, Jagermeister, Moa Beer, Etnies shoes, Electric sunglasses, 10 CDs from Real Groovy Records, A year’s supply of BurgerFuel** and a big fruity Christmas Pud! The ‘White Christmas Combo is – 330 grams of Coke, a char-grilled Chicken Burger with Brie and Cranberry Sauce plus Spud Fries with Aioli Dip!! All for the festive price of $11.00 Competition closes 30.12.06. Conditions at the bottom of the advertisement said: “Coca-Cola”, “Coke” and Contour Bottle are registered trade marks of Coca-Cola Company. Prize will be drawn Friday 12 January 2007. Winner will be contacted by phone or email. If you are under 18 Johnny Promo will drink the alcohol in comfort of his own home – bad luck kids. *Air travel to the value of $2500. ** 1 Burger, Spud Fries with Aioli Dip and 1 Malt Shake every week for 52 Weeks. The Complainant N. Taiapa said: 2 06/474 Where: Pamphlet placed in my home letterbox, between 26th Nov and 3 Dec 2006. Who: Burgerfuel Product: "White Christmas Super Massive Gift Hamper" Complaint The pamphlet implies drug use - cocaine. It has traces of white powder stuff in the top left hand corner. I see that some of the wording is in the form of white powder (cocaine) lines and mounds. There's an American dollar bill rolled into a tube. The picture of the burger is placed on top of a mound of 'white stuff' as large as the burger that I think is to look like cocaine. And there's a picture of Kate Moss on it as well as a picture of some other guy unknown to me. Here's a company that, I quote, "is a team of customer focused individuals, committed to high social standards and environmental standards." How irresponsible of BURGERFUEL. How unnecessary it is for my children to see blatant social approval of cocaine use. What's cocaine got to do with, and I quote the BURGERFUEL guarantee, "We guarantee that your BURGERFUEL BURGER is the healthiest burger you will ever eat, because life is too short to eat bad burgers!" As a father of young children, it was our six year old son who first saw the pamphlet; I think it is over the top advertising.” Two duplicate complainants expressed similar concerns about the advertisement. They also identified the man shown in the advertisement as the late Pablo Escobar Gaviria who allegedly had sinister connections with drug trading in Columbia. One said the advertiser used “it's clearly differentiated image … to invite their customers, mostly young consumers to use cocaine to be slick and cool.” The other expressed the view that the matter was compounded by the fact that the advertisement used references to the drug trade “at Christmas of all times”. The Chairman ruled that the following provisions were relevant: Code of Ethics - Basic Principle 4: All advertisements should be prepared with a due sense of social responsibility to consumers and to society. Rule 12: Safety - Advertisements should not, unless justifiable on educational or social grounds, contain any visual presentation or any description of dangerous or illegal practices or situations which encourage a disregard for safety. Code for Advertising of Food Principle 2: All food advertisements should be prepared with a due sense of social responsibility to consumers and to society. However advertisements containing nutrient, nutrition, health or therapeutic claims, should observe a high standard of social responsibility. Principle 3: Advertisements directed at children should observe a high standard of social responsibility. 3 06/474 The Advertiser, Burger Fuel, said: “… The White Christmas promotion was in no way meant to offend anyone. BurgerFuel certainly doesn't condone any kind of drug use. We do like however to try to use creative that has a sense of humor and that reflects the irreverent nature of the BurgerFuel brand. The artwork in question employs a play on words and any perceived connection to illegal substances is only inferred. The various components individually do not suggest any connection to anything untoward. We do not employ an advertising agency, our management team is a small group of 5 people and we develop almost all creative internally. We have approximately 35,000 people coming through our stores each week and so far there have only been two people who have disapproved of this promotion - most customers take it for what it is - a bit of a laugh, a great competition and something a wee bit original. The White Christmas promotion expires at the end of December and all marketing material will be out of stores by this time. We do however take all complaints seriously and would never try to offend any member of the public. If it is considered by the board that the promotion was not in good taste we would of course take these comments on into consideration when planning future promotions. I would be happy to contact N. Taiapa directly and if you felt this was appropriate. Let me know if there is anything else we can do to help or if there is any other information you require.” Deliberation The Complaints Board perused the relevant correspondence and the advertisement. It noted the complainants were of the view that the advertisement had been not been prepared and published in a manner which was socially responsible, particularly as it was in the form of a pamphlet which could be seen by children. The Chairman directed the Complaints Board to consider the complaint with reference to Basic Principle 4 and Rule 12 of the Code of Ethics, and also the Code for Advertising of Food, Principles 2 and 3. The task before the Complaints Board was to determine whether the advertisement, which was for a burger meal, had been prepared and shown with the due sense of social responsibility as required by Basic Principle 4 of the Code of Ethics and Principle 2 of the Code for Advertising of Food. The Complaints Board also had to determine whether in its view the advertisement had been “directed at children”, defined in the Code for Advertising to Children, as those below the age of 14, and if so whether it observed the high standards of social responsibility required by Principle 3 of the Code for Advertising of Food. Turning to Rule 12 of the Code of Ethics, the Complaints Board was required to determine whether the 4 06/474 advertisement contained “any visual presentation or any description of dangerous or illegal practices or situations which encourage a disregard for safety”. Turning to the advertisement, the Complaints Board noted that it took the form of a colourful A5 sized leaflet which had been delivered to letter boxes in the pre-Christmas period. The visual showed a char-grilled chicken burger, together with a bottle of soft drink, a bag of “spud fries” and a container of aioli dip, with the price tag of “Only $11”. Furthermore, it advertised a competition, entry to which required completion of one’s details on the back of a receipt. The heading included a large reference to “White Christmas”. Accordingly, the Complaints Board, was in no doubt that the advertisement would have evident appeal to children, and could be said to have been “directed at children”, although not exclusively, and in any event, the Complaints Board said it did not properly safeguard the interests of children. Having established this, the Complaints Board said the advertisement was therefore required to observe a high standard of social responsibility as required by Principle 3 of the Code for Advertising of Food. The Complaints Board was unanimously of the view after taking into account the product, presentation and medium, that the advertisement which contained a range of well recognised references to an illegal substance, did not meet this requirement and thereby ruled that it was in breach of Principle 3. The Complaints Board also confirmed that the advertisement was in breach of Basic Principle 4 of the Code of Ethics and Principle 2 of the Code for Advertising of Food, as it had not been prepared with a due sense of social responsibility to consumers, from children to adults, and society, as required in these provisions. Furthermore, the Complaints Board was in no doubt that the advertisement contained a visual presentation which included many elements of an illegal practice which could encourage a disregard for safety among consumers, thereby breaching Rule 12 of the Code of Ethics. The Complaints Board noted the duration of publication of the advertisement and the advertiser’s contention that the promotion had been intended to be humorous reflecting the irreverent nature of the product brand. This it said, did not in any way save the advertisement from breaching the Advertising Codes. The Complaints Board ruled to uphold the complaint. Decision: Complaint Upheld