“By your side” claim not misleading – Lloyds Bank

How do you distinguish between advertising “puffery” and a misleading ad?

The background

A TV ad run by Lloyds Bank (Lloyds), seen in February 2018, showed a black horse running through various scenes, with a voiceover stating “yesterday, today and tomorrow we have been and always will be by your side”.  At the end of the ad text stated on the screen “by your side for over 250 years”.

In January 2017, several former Halifax Bank of Scotland (HBOS) employees were convicted for financial fraud.  Lloyds later acquired HBOS.  Keystone Law, a firm of solicitors representing victims of the financial fraud committed at HBOS (the most famous of these being TV presenter Noel Edmonds), objected to the actions Lloyds Bank had taken to address the fraud and challenged whether the claim “by your side” was misleading.  They believed the claim “by your side” was misleading as they believed Lloyds had not supported or been “by the side” of the victims of this fraud. 

Lloyds stated that “by your side” summated the “reliability, accessibility and security” it provided to customers, and the only claim which required substantiation was “for over 250 years”, for which they could provide sufficient evidence.  Lloyds also argued that the ad did not promote a specific product or service and could therefore not be misleading nor have omitted any relevant information.  In any event, Lloyds stated that the ad could be substantiated due to the size of its banking network, the variety of its services, its customer base, the average number of customer interactions each month and other initiatives. 

Regarding the HBOS fraud, Lloyds stated that the convictions related to criminal conduct prior to its acquisition of HBOS and that it had launched a review to determine any appropriate compensation.  Lloyds further explained that there were approximately only 70 companies impacted by the fraud, equivalent to 0.001% of Lloyds’ business customer base.  Further, Lloyds argued that the complaint was about whether a retail consumer ad was misleading, rather than a business ad. 

Clearcast noted that it had asked for substantiation of the 250 year claim and the rationale for the use of “by your side”.  Clearcast stated it was satisfied that viewers would infer the message related to reliable, accessible and secure banking and did not agree the fraud case should be conflated with the “by your side” strap line. 

The development

The complaint was not upheld by the ASA. 

The ASA stated that the ad did not reference the HBOS fraud case or any relevant steps it had taken regarding compensating victims of the fraud.  As such, the ASA considered that viewers would understand the ad to be general brand promotion and the claim “by your side” was “advertising puffery”, not requiring objective substantiation.  The ASA did not consider “by your side” to be a commentary on the situation of the victims of the HBOS fraud case, and as the ad contained no references to fraud, the ASA did not consider details of the case to be material information which needed to be included in the ad.  As such, the ASA concluded the ad was unlikely to mislead. 

Why is this important?

Whilst the HBOS fraud case is a serious case of criminal conduct, the ASA did not impose any higher standard upon Lloyds because of it.  The ASA considered the ad on its own specific circumstances and considered that it was unlikely to mislead.  As such, this ruling should reassure companies running adverts that they are unlikely to be penalised for complaints regarding events unconnected to the ad.

Any practical tips?

Carefully consider what information is provided in any ads, and the extent to which this may negate a puffery claim.  Lloyds escaped any ASA penalty as their ad did not mention the HBOS fraud and the strap line “by your side” was clearly a generic claim.  However, the ASA’s approach may well be different if the text, voiceover or imagery of the ad makes any specific references which could be the subject of a complaint.