Nationwide’s Ad Campaign Promotes Competition And Consumer Choice. So Was The ASA Wrong To Uphold Santander’s Complaint? – Advertising, Marketing & Branding

One of the most amusing ad campaigns of the last 12 months has
been the one created by New Commercial Arts for the Nationwide
Building Society. The purpose of the campaign is to highlight that
Nationwide is the only major bank or building society to make
a promise to keep open its branches until
at least the end of 2026. When the campaign was launched in October
2023, that was a commitment for more than 3 years. So it is
disappointing that the Advertising Standards Authority has upheld a
complaint by Santander over relatively minor flaws in the ads which
fall short of meeting the CAP and BCAP Code tests of being
‘materially misleading’, enabling Santander to stifle
competition and consumer choice “on the cheap”.

What did the TV commercial claim?

The campaign included TV, radio, and press ads, but the TV ad
has attracted the most attention, partly because of the comedic
quality of NCA’s script, and partly because the bravura
performance of its star, Dominic West, playing the archetypal
banker, in both the literal and the cockney rhyming slang sense.
Dominic is famous for his dramatic roles, such as Prince (now King)
Charles in The Crown, as well as staring in The
Wire and The Affair. But who knew that he is also
such a talented comic actor?

The TV ad opens with a shot of a gleaming glass office block
bearing the legend “A.N.Y. BANK”. Cut to an interior shot
of an individual office with an exchange between the boss, played
by Dominic, and his executive assistant (also played brilliantly by
comedian Sunil Patel). They start by discussing the boss’s
unconscionably large expenses claim following a fat lunch with his
c-suite colleagues. The conversation then takes a turn to more
serious matters:

What is Nationwide’s ‘Branch
Promise’?

Nationwide’s ‘Branch Promise’ was first launched in
2019, but subsequently renewed and strengthened to become a promise
not to close any of its branches until at least the end of 2026.
The claims in the ads are expressed in the present tense, not the
past tense, and they are forward looking. The ads don’t discuss
the past, only that Nationwide is not closing branches at
present.

Nationwide’s last branch closure prior to the launch of the
campaign was in April 2023, 6-months before. Only 2 branches had
closed during the calendar year 2023, one of which was because the
landlord terminated the lease on the building. Nationwide (and
Clearcast and the Radiocentre) believed this 6-month gap would be
consistent with the expectations of the Average Consumer, who would
interpret the Branch Promise as meaning that no branches are being
closed presently (or in the recent past),
and that going forward, no branches will be closed branches until
at least the end of 2026.

What was Santander’s complaint?

Santander, who understood that Nationwide had ‘recently’
closed or reduced opening hours at some branches, challenged
whether the ads were misleading. After submitting its complaint to
the ASA, Santander then publicised that fact to the media, which
garnered some coverage in the newspapers. While not strictly a
breach of the ASA’s competitor complaints procedure, this
publicity is not in accordance with the spirit of it either. The
ASA’s primary sanction following an upheld complaint is
negative publicity, but Santander jumped the gun, resulting in a
substantial number of consumer complaints as well. The ASA does not
explain the nature of these complaints, but it is safe to assume
that consumers were not concerned that Nationwide was being unfair
to Santander, let alone the other Big Banks named in the ad.
Although some may have been concerned about the reduced opening
hours at some Nationwide’s branches, that issue was not pursued
by the ASA, who accepted the Financial Conduct Authority’s view
that reducing opening hours is better for consumers than closing
branches and not tantamount to closure.

Santander’s only complaint about the
campaign was their belief that when the campaign was launched,
Nationwide had ‘recently’ closed or reduced the opening
hours at some of their branches. Santander raised no concern about
whether consumers would appreciate that the Branch Promise is
currently planned to end in 2026, or about what will happen after
it expires.

Santander was also the only bank named in the ad to complain.
Neither Lloyds, Bank of Scotland/Halifax, Natwest, Barclays nor
HSBC complained, but then they’ve all announced additional
branch closures since the campaign was launched. Santander have
pointed out that they have not formally announced any additional
branch closures since October 2023, but crucially, unlike
Nationwide, they have not made any
promise not to do so.

Why did the ASA uphold the complaint?

The ASA provides its rationale for upholding the complaint at
the end of the Adjudication, stating that “Because we
considered that consumers would understand from the ads that
Nationwide would not be closing branches in the long-term future
and that they had not recently closed their branches, we concluded
that the ads were misleading.”

So let’s look at those two reasons, but in reverse
order.

How long is the ‘recent past’ in the mind of the
Average Consumer?

The claims in the TV ad are expressed in the present tense and
the Branch Promise is forward facing. It is reasonable to assume
that the Average Consumer, who is “reasonably well-informed,
observant and circumspect” would assume that the claim
“Unlike the big banks we’re not closing our
branches” covered a period starting sometime before the
first air date, but how long before? In my opinion, 6 months is a
reasonable period. Instead, the ASA chose to consider the 12 months
prior to the launch of the Ads, despite the forward-looking nature
of the claims and the use of the present tense. In doing so, the
ASA adopted the time scale selectively advocated by Santander to
confer an artificial advantage on themselves, because during that
period Nationwide had closed more branches than Santander. But the
ad wasn’t about history, it was about the present day, and
an express promise not to close any more
branches for the next 3 years.

The ASA also appears to have been unduly influenced by the fact
that “at the time the ad was seen Santander had not
announced that they would be closing branches in the
future.” Although Santander may not have announced any
further branch closures, they have already cut their estate by 63%
over the last 10 years, compared with a 20% cut by Nationwide over
the same period. And Santander have conspicuously failed to match
Nationwide’s express commitment not
to close any more branches in future, whether for 3 years or
longer. And that is the point of the ad campaign.

How long would the Average Consumer expect the Branch
Promise to last?

When the campaign launched, the branch promise was expressed to
last until at least 2026, i.e., at least 3 full years. The super at
the end of the TV ad clearly stated, “Valid until
2026.” This super complied with Clearcast’s rules for
both the font size and the duration of hold. The press ad includes
small print which stated, “If we have a branch in your
town or city, we’ll still be there until at least
2026.“

It is true that the radio ad omitted a reference to the 2026
date, and it would have been open to the ASA to uphold the
complaint in relation to the radio ad alone, but not the TV or
press ad. Instead, the ASA came to the strange conclusion that,
“we considered the qualifications would be likely to be
missed….. Had the timeframe been made clearer in the ads, we
considered that would likely have overridden the impression that
the Branch Promise related to the longer term.” It is
important note that Santander did not complain
that the 2026 date was unclear. And as far as we know, neither did
the consumers who complained. Given Nationwide had complied with
the Clearcast rules for supers, this rationale is worrying. It
creates considerable uncertainty about what an advertiser must do
to ensure that a qualification is sufficiently prominent.
Presumable the ASA is not saying the current Clearcast rules must
be changed, so what should have been done differently? And was the
ASA justified in adding this point to a competitor complaint?

Again, the question is what would the Average Consumer expect
having seen the ad? Even if they had failed to notice the reference
to 2026 in both the TV and press ads, there is no reason to suppose
that they would assume the Branch Promise is the equivalent to a
marriage vow, to keep every branch open ‘for as long as we
both shall live’. The Adjudication says that after 2026,
Nationwide could start to close branches, as if that would be news
to the Average Consumer, and which is why the ads included an end
date. In fact, Nationwide has no such plans to close branches after
2026 – and has now announced that the Branch Promise has been
extended to 2028; but that does not seem to have carried as much
weight with the ASA as the fact that Santander has not
announced any closures, even though it
could do so at any time.

Competition or consumer protection?

Reasonable people might disagree about the appropriate duration
of the gap between Nationwide’s last branch closure and the
launch of the campaign, but the absence of any
announcement by Santander of an intention
to close branches is not equivalent to Nationwide’s
promise not to do so. There is no
evidence that the average consumer would not see or understand the
significance of the end date of the Branch Promise and that does
not appear to be an issue raised by Santander or consumers.

The bigger picture is that consumer interests are served by
promoting competition between banks. One important element of that
competition concerns branch networks, particularly against the
background of widespread branch closures over the last decade or
more. Rather than competing with Nationwide by matching its
expensive promise to maintain its branch network, Santander took
the much cheaper decision to lodge a complaint with the ASA. Was
this in the interests of consumer? No. It was in the interests of
Santander.

The CAP and BCAP Codes are only infringed if a claim is
materially misleading, so an ad that
promotes competition and choice should not be banned over minor
flaws or technicalities, as that is not in the interests of
consumers.