ASB Advertising Complaint

8/14/2019 ASB Advertising Complaint

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09/708DECISION

Meeting 9 December 2009

Complaint 09/708

Complainant: K. Summerfield & OthersAdvertisement: ASB Bank Limited

Complaint: The website, billboard, newspaper, in-store and bus advertisements allcontained the following:

WEVE BEEN A

KIWI BANKSINCE 1847.

1847 2009_________________________________________________ ASB

Keeping NZ one step ahead.

Complainant, K. Summerfield, said:

Type: WebsiteWhere: Please see attachmentWho: ASB BankProduct: themselves

Complaint -No advertisement should be misleading or deceptive or likely to mislead or deceive

the consumer.

Hello! Trust all is well. I couldn't help notice this (see attachment) on ASB Bankswebsite.

I guess there are 2 issues I have concern with.

1. The use of the text 'KIWI BANK' within the sentence of "We've been a KIWI BANKsince 1847'I'm sure you're familiar with the bank Kiwi Bank, and it seems very odd too, in themiddle of a sentence start CAPITALISING WORDS if you know what I mean.


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2. I was under the impression ASB Bank is Australian owned and while saying theywere a 'kiwi bank' rather than a 'New Zealand bank', it still creates what I believe to bea false impression

Duplicate Complainants raised similar concerns about the advertisement.

The Chairman ruled that the following provisions were relevant:

Code of Ethics

Basic Principle 4 All advertisements should be prepared with a due sense ofsocial responsibility to consumers and to society.

Rule 2: Truthful Presentation - Advertisements should not contain any

statement or visual presentation or create an overall impression which directlyor by implication, omission, ambiguity or exaggerated claim is misleading ordeceptive, is likely to deceive or mislead the consumer, makes false andmisleading representation, abuses the trust of the consumer or exploitshis/her lack of experience or knowledge. (Obvious hyperbole, identifiable assuch, is not considered to be misleading).

Code for Financial Advertising

Basic Principle 3: Financial advertisements should strictly observe the basictenets of truth clarity and should not by implication, omission, ambiguity, smallprint, exaggerated claim or hyperbole mislead, deceive or confuse, or be

likely to mislead, deceive or confuse consumers, abuse their trust, exploittheir lack of knowledge or, without justifiable reason, play on fear.

The Advertiser, ASB Bank Limited, said:

Thank you for the opportunity to comment on the complaints received by theAdvertising Standards Authority (ASA) and now consolidated as Complaint 09/708.

Complaints

Our review of the complaints shows there are two main areas of concern held by thecomplainants. These are:

1) that the reference to ASB being a 'Kiwi bank' is a claim by ASB of NewZealand ownership; and

2) that pointing out that ASB is a Kiwi bank is confusing given the operation inNew Zealand of Kiwibank Limited.

Kiwi bank vs Kiwi ownership

From the outset I would like to set the record straight and confirm that we have notstated or suggested anywhere in our advertising that ASB is 'Kiwi owned'. That ASBBank Limited's ultimate owners are the Commonwealth Bank of Australia and itsshareholders (many of whom are New Zealand residents) appears to be well

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understood by the complainants, partly no doubt because ownership is an issue acompetitor has sought to target in its marketing campaigns for a number of years.

However, being a Kiwi bank is not about ownership and it is incorrect to approach theASB advertising with this focus. Being a Kiwi bank is about your provenance, the wayyou think and act as an organisation, your history and your commitment to staff,customers and the community, Focusing on ownership ignores the fact that ASB is aNew Zealand incorporated company that exists because of its community, customersand staff, all of which are Kiwi. Viewed objectively, an ownership focus clearly isillogical - for example, if ASB is not "Kiwi" then would the Bank of New Zealand needto change its name?

In addition to the fact that it is a New Zealand incorporated and registered bank, ASBhas the right to claim it is a "Kiwi bank" for the following reasons:

The ASB banking undertaking has been serving New Zealand communities forover 162 years

Established in 1847 to answer a community need

Employs over 5,000 passionate Kiwis

Provides a full range of financial services to over 1 million New Zealanders

Works with over 6,000 supplier companies in New Zealand

An autonomous bank with its own Board and decision making powers. We arenot a branch of Commonwealth Bank and do not have branches in Australia

Our financial products are designed in New Zealand for New Zealanders andwe provide services to Kiwis throughout the country

We work with and support many and varied New Zealand organisations. Weprovided $10m worth of support to the community last financial year alone

ASB has not sent any jobs off shore

ASB has made a large commitment to New Zealand's economic recovery fromthe recession through the provision of the $1 bn Job Creation Fund

ASB is a leading provider for Kiwis' futures through its role as a KiwiSaverscheme provider

Virtually 100% of ASB lending activity remains within New Zealand

The ASA Complaints Board has previously considered a similar complaint regardingANZ Bank and its claim to have been New Zealand's first bank (Decision 041027).The Complaints Board when considering that claim did not focus on the ownership of

ANZ but looked at the fact that ANZ (in its original guise) had opened in New Zealandin 1840. The Board recognised that the lineage and history of that bank as anundertaking is what was relevant to the truthful presentation of the message.

It is our place in New Zealand that is relevant. We believe this approach has beenendorsed by the ASA Appeal Board when reviewing the history of Instant Finance(Decisions 06/461 and 07/007) where, despite structural changes to operatingcompanies, the history of the business was recognised and accepted.

ASB readily accepts that the advertisements could be described as "a bit cheeky":their intention was to get people talking. They provide the platform for ASB to tellpeople about its history, values, strength and services. ASB has received a lot offeedback in support of the advertisements from customers and non customers alike,

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many of whom have noted that ASB has a long and proud tradition as a NewZealand bank supporting New Zealanders.

Confusion with Kiwibank Limited

The second aspect of some of the complaints is that the use of the phrase 'Kiwi bank'could create confusion with Kiwibank Limited. We do not consider there is any risk ofconfusion arising from the advertising complained about and certainly have not seenany confusion as a result of the advertising.

The advertisements clearly represent ASB with the same unique colour range, fontstyle, and logo positioning that is usually utilised by ASB. We have a prominent brandthat is recognisable for these reasons. It is notable that the complainants who haveapproached the ASA are not actually complaining they were confused.

The words 'Kiwi bank' are two words that form part of a sentence which is clearlyattributed to ASB.

Advertising Standards Codes

In addition to our comments above we have responded separately to each Code, Ruleand Principle raised by the ASA in its letter.

Advertising Code of Ethics - Rule 2

Truthful Presentation - Advertisements should not contain any statement or visual

presentation or create an overall impression which directly or by implication,omission, ambiguity or exaggerated claim is misleading or deceptive, is likely todeceive or mislead the consumer, makes false and misleading representation,abuses the trust of the consumer or exploits his/her lack of experience or knowledge.(Obvious hyperbole, identifiable as such, is not considered to be misleading.)

We consider that the statement "WE'VE BEEN A KIWI BANK SINCE 1847" isaccurate and a truthful presentation of ASB. There is no ambiguity in what is clearly astrong message promoting ASB's provenance and history in New Zealand. Thatstatement is just one element of a significant campaign ASB has devised tocommunicate the ASB points of difference; namely our legacy, people andcommitment to the New Zealand communities in which we operate. As you can see

from the attached representative sample of our overall campaign we are proud ofour role and history in New Zealand and highlight these facts.

Advertising Code of Ethics - Basic Principle 4

All advertisements should be prepared with a due sense of social responsibility toconsumers and to society.

The complaints focus on one execution of a wider campaign centred on ASB's legacyand community involvement.

We have not claimed ownership by New Zealand shareholders, but rather areseeking to remind the public that ASB was founded on social responsibility, we have

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been around for 162 years and during that time have served the community ethicallyand responsibly and continue to do so.

The campaign in its entirety has been thoroughly researched to ensure our claimsare honest. As always, our campaign goes through a rigorous process ofdevelopment and signoff.

Basic Principle 3 - Code of Financial Advertising

Financial advertisements should strictly observe the basic tenets of truth and clarityand should not by implication, omission, ambiguity, small print, exaggerated claim orhyperbole mislead, deceive or confuse, or be likely to mislead, deceive or confuseconsumers, abuse their trust, exploit their lack of knowledge or, without justificationreason, play on fear.

The advertisement in question is a brand advertisement and does not give any falseor misleading information regarding any financial product or service. ASB's corporaterepresentation is clear as per comments above.

It is widely known that ASB is owned by Australian interests. That has beenreinforced to the public by an extended campaign by one of our competitors. There isno implication or ambiguity to the contrary that is likely to mean consumers would bemisled. The advertisements are simply a clever, but transparent, "play" on acompetitor's brand position.

Conclusion

ASB is proud of its place as a Kiwi bank and our role in New Zealand communities.We have embarked on a journey to tell our story in a way that is witty, yet truthful andresponsible. ASB asks that complaint 09/708 should not be upheld.

The Agency, TBWA\Whybin, said:

In response to your letter regarding ASB Bank Complaint 09/708.

I am going to provide a general statement to refute the basis of the complaint from K.Summerfield and 11 other complainants.

ASB Bank has been a client of TBWA\Whybin for more than a decade. During thistime ASB has always instructed the agency to be truthful and honest; in fact, wehave on all occasions been asked to veer on the site of caution when it comes tomaking claims and statements etc.

ASB is an ethical and principled organisation and does not condone misleading ormischievous behaviour.

The background to this is simply that due to a recent aggressive campaign, Kiwibankhas positioned all other banks as being 'non New Zealand'. Whilst other banks suchas Westpac (which began as The Bank of N S W ) , ANZ and others obviously havestrong Australian ties, ASB does not. ASB was founded by New Zealanders and hasserved, as these advertisements say, the community since 1847.

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In this manner it has been providing banking financial services and banking facilitiesfor Kiwis for over 100 years. It has always been a 'local' bank. Its heritage is theAuckland Savings Bank.

In considering a new campaign at a time of financial uncertainty, the agency believedthat ASB's history was extremely relevant. The fact that this bank has been operatingsince 1847 is something ASB are proud of and we needed to communicate that.They're also proud of the fact that they have a local call centre and have a branchnetwork all staffed by Kiwis. ASB in fact employs over 5000 people.

This campaign was conceived to Highlight ASB's history and in so doing emphasisetheir involvement with New Zealand and Kiwis.

Whilst I accept that there is another Kiwi Bank' which has used its local ownership asits point of difference, I don 't believe that it gives them the sole right to claim anyaspect of being Kiwi.

Kiwi is a descriptor for the population of New Zealand. We are all Kiwis, This is abank that serves all New Zealanders therefore it is absolutely reasonable to describeit as such. The fact that the bank is wholly owned by the Commonwealth Bank ofAustralia is not relevant. We have made no attempt to hide this, as it is not part of thecampaign.

This is not a campaign regarding ownership or claiming ownership. It is a campaigndesigned to reinforce the important part ASB Bank plays in the lives of Kiwis, and

that was the intent and focus.

We also completely refute some of the other areas canvassed by the complaintsrelating to decisions being made off shore. ASB operates as a stand-alone entity andwe have certainly never been asked in a communications sense to follow anydirectives from Australia or from CBA. We are not privy as to now the ASB's profitsare repatriated we are merely involved in producing their communications. Again Iwould stress ASB are a good employer, a reputable company and have neverdirected us to produce any campaign with an element of deceit or misinformation.

The advertising simply sets out to state the truth, which is that ASB has been a bank forNew Zealanders (Kiwis) for an awfully long time. It was not an attempt to mislead,

and it is why we have a timeline as part of the ads showing from 1847 through to2009, and the tagline 'Keeping New Zealand One Step Ahead. It is simply aboutpride in our history and pride in our heritage; at times of financial uncertainty thisstability and track record is important and this is what we have been attempting tocommunicate.

Lastly, I would say that if we begin to suggest that Kiwi Bank somehow has specialrights to the word Kiwi, I believe we are entering very dangerous territory, which wecertainly would challenge.

The Media, The Dominion Post, said:

Thank you for your letter regarding the above complaint.

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We understand the complaint and reference to the Advertising Codes of Practice,Code of Ethics - Basic Principle 4, Code of Ethics - Rule 2 and Code for FinancialAdvertising - Basic Principle 3.

We would be interested to get your ruling on the use of the words 'kiwi bank' in thiscontext. Does the 'kiwi bank since 1847' refer to the ASB's beginnings as theAuckland Savings Bank? Is there a copyright on the use of the words kiwi and banktogether with the establishment of Kiwi Bank?

My understanding of this ad is the connection back to ASB starting as a localAuckland, New Zealand bank. If ASB only trades in New Zealand (i.e. does notoperate in Australia) the claim could be supported.

The emphasis on being a kiwi bank is obviously in competition to Kiwi Bank and how

others can use these words, and the words be used in a competitive context byanother back, needs to be clarified.

We would welcome your feedback and decision based on the information provided.

The Media, The Christchurch Press, said:

Further to the above complaint from K. Summerfield and 9 other complainantsregarding the placement of an advertisement for "ASB Bank", listed below arerelevant details pertaining to the advertisement.

1) Your correspondence relates to a complaint by K. Summerfield and 9 other

complainants concerning "ASB Bank We've been a Kiwi Bank since 1827"advertisement published in "The Press" October 21St 2009

2) In accepting the booking, it did not appear that the advertisement may havebreached the Advertising Codes of PracticeCode of Ethics- Basic Principle 4Code of Ethics- Rule 2Code of Financial Advertising- Basic Principle 3

3) We await the findings of the Complaints Board and will adhere to their decision.

I hope these comments help you to resolve this matter, however should you requireany further information please do not hesitate to contact me.

The Media, APN Outdoor, said:

This campaign is clearly a tactical response to the marketing activity initiated byKiwibank. Retail banking is becoming increasingly competitive. ASB have been in NZsince 1847 and for most of that time in NZ ownership. We feel that the statement'We've been a KIWI BANK since 1847' doesn't attempt to deceive about it ownershipbut rather it focuses on the fact that it has been a significant and well respected bankin New Zealand for a considerable amount of time. And as such, very much a Kiwibank.

We do not feel it is breaching any code.

The Media, iSite Media, said:

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This letter is in response to your letter regarding ASB Bank Website, Billboard,Newspaper and Bus advertisement - Complaint 09/708.

iSite Media have the ASB advertisement on our bus backs and billboards with thecampaign starting in November. iSite Media saw no reason not to place these adson their panels and sites, as we understand the message that ASB is trying to getthrough to its audience. We take the advertising to mean that they are a bankoperating in a New Zealand market, serving New Zealand customers-therefore a"Kiwi" bank.

They do not refer to themselves as a 'New Zealand owned' bank, merely that theyare "Kiwi" therefore we did not deem they were meaning to imply so.

Should you have any further questions please do not hesitate to contact me.

Deliberation

The Complaints Board read carefully the relevant correspondence and theadvertisement which appeared in range of media.

It noted Complainants, K. Summerfield and Others were of the view that the ASBBank advertisements were misleading where they said:

WEVE BEEN A

KIWI BANKSINCE 1847.

The issues raised in complaint were that ASB Bank was Australian owned, and KiwiBank implied New Zealand ownership, and also that the use of Kiwi Bank couldmislead consumers into connecting the ASB Bank with New Zealand ownedKiwibank.

The Chairman directed the Complaints Board to consider the complaint withreference to Basic Principle 3 of the Code for Financial Advertising.

Procedural note: The Complaints Board agreed that as the advertisement was fora bank, in this case the Code for Financial Advertising was the most appropriate

code and consideration under the Code of Ethics was not required.

The task before the Complaints Board was to determine whether the advertisementsstrictly observed the basic tenets of truth and clarity and did not by implication,ambiguity, or hyperbole mislead, deceive or confuse, or be likely to mislead, deceiveor confuse consumers, or exploit their lack of knowledge.

The Complaints Board noted the Advertisers response where it said:

In addition to the fact that it is a New Zealand incorporated and registered bank,ASB has the right to claim it is a "Kiwi bank" for the following reasons:

The ASB banking undertaking has been serving New Zealand communities forover 162 years

Established in 1847 to answer a community need

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Employs over 5,000 passionate Kiwis

Provides a full range of financial services to over 1 million New Zealanders

Works with over 6,000 supplier companies in New Zealand An autonomous bank with its own Board and decision making powers. We arenot a branch of Commonwealth Bank and do not have branches in Australia

Our financial products are designed in New Zealand for New Zealanders andwe provide services to Kiwis throughout the country

We work with and support many and varied New Zealand organisations. Weprovided $10m worth of support to the community last financial year alone

ASB has not sent any jobs off shore

ASB has made a large commitment to New Zealand's economic recovery fromthe recession through the provision of the $1 bn Job Creation Fund

ASB is a leading provider for Kiwis' futures through its role as a KiwiSaverscheme provider

Virtually 100% of ASB lending activity remains within New Zealand.

The Complaints Board considered that there were a range of factors that couldcontribute to how a company may describe itself including ownership.

The Complaints Board acknowledged that ownership of a bank was an importantissue to consumers. The Complaints Board noted that it had received a number ofcomplaints about the advertisement which indicated that there was a level ofconcern about the claim kiwi bank.

The majority of the Complaints Board was of the view that the advertisement did not

imply New Zealand ownership and did not meet the threshold to mislead or deceivethe consumer with regard to this issue. The majority of the Complaints Board notedthat ASB Bank was owned by the Commonwealth Bank of Australia and itsshareholders. However, the majority also took into account the full wording of theadvertisement, Weve been a Kiwi bank since 1847 providing context to the kiwibank reference, that the ASB Bank brand only operated in New Zealand and had along established history of involvement in this country. Accordingly it ruled that theadvertisement was not in breach of Basic Principle 3 with regard to this issue.

A minority disagreed. In the minority view there was a clear implication of NewZealand ownership in the reference to kiwi bank and that it was likely thatconsumers would interpret the advertisement in this way. In the minority view the

advertisement was misleading and in breach of Basic Principle 3.

The Complaints Board then addressed the next issue raised in complaint, that theuse of the words 'Kiwi bank' could create confusion with Kiwibank Limited.

The Complaints Board took into consideration that the advertisements representedASB through the use of a unique colour range, font style, and logo. For thesereasons the majority said the ASB brand was clearly recognisable. It also noted thatthe words 'Kiwi bank' were two words forming part of a sentence which providedcontext, as distinguishable from the brand name Kiwibank which stood for KiwibankLimited.

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The majority was of the view that the advertisements were not misleading ordeceptive with regard to this issue and thereby were not in breach of Basic Principle3.

However, a minority disagreed, saying the wording, which was identical in words tothe name and brand of a bank that is New Zealand owned, may create confusion andcould thereby mislead or deceive consumers. In the minority view, the advertisementwas in breach of Basic Principle 3 of the Code for Financial Advertising.

However, in accordance with the majority view, the Complaints Board ruled to notuphold the complaint.

Decision: Complaint Not Upheld

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Documents

ASB Advertising Complaint