ASA Adjudication on Mountway Ltd

Ad

A brochure for a bath lift stated "The lightest reclining bath lift ... As the only reclining bath lift to weigh under 10kg, the robust and compact Aquila offers an array of accessories making it flexible for use by children and in a variety of bath styles". Text underneath described the specification of the Aquila bath lift, which included "Up to 4" more legroom than other reclining bath lifts ... At least 2kg lighter than other reclining lifts to minimise back strain ... Heaviest section up to 2kg lighter than other reclining lifts for safer fitting and removal ... Unique, open base frame with limited crevices".

Issue

AquaJoy Bathlifts Ltd challenged whether:

1. the claims made about the weight of the lift and its constituent parts were misleading and could be substantiated, because they believed that there were lighter manual reclining bath lifts on the market;

2. the claim "up to 4" more legroom than other reclining bath lifts" was misleading and could be substantiated; and

3. the claim "Unique, open base frame" was misleading and could be substantiated, because they believed that a number of other bath lifts had open base frames.

CAP Code (Edition 11)

Response

1. Mountway Ltd (Mountway) said the Aquila was a battery-powered reclining bath lift, and should be compared with other battery-powered bath lifts. They said they did not believe it would be fair to compare a reclining bath lift with a manual one, because a substantial degree of physical effort was required to lift and lower manual models. Mountway said that, due to muscle and joint degeneration and age-related weaknesses, the majority of bath lift users required a unit that would assist with lifting. They submitted evidence which they said showed that Occupational Therapists (OTs), who were the main bath lift prescribers and key consumer advisors in the market, associated bath lifts with battery power when discussing the features of an ideal bath lift.

Mountway said all reclining bath lifts' product literature made reference to their power sources without specifically labelling the product as a 'powered reclining bath lift'. They said it was also evident from literature relating to manual bath lifts that there was no external power source. Mountway argued that the ad for the Aquila made it clear that it was a powered lift, through the use of text such as "with a backrest that reclines at the touch of a button" and "supportive backrest with auto-controlled recline", as well as through images that showed the battery handset.

Mountway submitted copies of the product literature for two different manual bath lifts. They said that literature showed the two products' backrests in a permanently reclined position. They argued that, whilst technically reclined, the manual lifts were reclined in a fixed position and were not 'reclining'. Mountway said they did not consider that those bath lifts were reclining bath lifts because there was no backrest adjustability, and for that reason they had not included them in their comparison.

Mountway explained that the weight comparisons made in the ad were based on their own tests of their competitors' products. They submitted copies of those test results, and explained that in some cases the products were considerably heavier than their published weights. Mountway suggested that that was because some competitors published the weights of their products without fabric covers on, despite the fact that their products could only be used properly with covers attached. They explained that, where covers were not compulsory, they had weighed products without them. They said they had tried to standardise their weighing methodology by consistently weighing all elements of the bath lifts without the battery handsets.

Mountway said, according to their tests, the next lightest reclining bath lift after the Aquila weighed 11.9 kg in total. They said the Aquila was at least 2.3 kg lighter than that and so they believed the claim "at least 2 kg lighter than other reclining lifts" was correct. They also said that the reclining bath lift with the heaviest individual component had a seat unit weighing 9.96 kg, in contrast to the Aquila's heaviest component which was its seat unit weighing 5.94 kg. Mountway argued that they had not found any other reclining bath lift whose heaviest component part was lighter than 6 kg, and that they were therefore justified in claiming that the Aquila's "heaviest section up to 2 kg lighter than other reclining lifts".

2. Mountway submitted the methodology and results of tests they had carried out comparing the legroom of the Aquila with other reclining bath lifts. They explained that they measured legroom by putting the bath lifts in more than one bath and ensuring that they were as far back as possible to maximise legroom, whilst at the same time making sure no damage could occur to bath surfaces and that the backrest was able to recline fully without meeting any obstructions behind the bath. They said the angle at which a bath lift reclined could also determine how far forward the bath lift had to be to avoid obstructions.

Mountway explained that their tests involved a real user sitting on all of the bath lifts, with the position of their heels when seated on each bath lift marked on a fixed piece of paper in the bath. They said the distance between those heel marks and the tap end of the bath would then represent the legroom space remaining in the bath. They said the distance between each heel mark also gave a simple method of determining the difference in legroom between each bath lift.

Mountway said the tests showed that the Aquila achieved better legroom than other reclining bath lifts. They said one bath lift provided more than 4 inches less legroom than the Aquila, and therefore the claim "up to 4" more legroom than other reclining bath lifts" was not misleading. Mountway said they had also carried out measurement tests when the bath lifts were upright, and that under those circumstances the Aquila still achieved better legroom.

3. Mountway pointed out that the claim included a comma after the word "unique", and that their claim was that the base frame was both unique and open, not that it was the only one on the market with an open frame. They said they were aware that a few other reclining bath lifts on the market also had open base frames.

Mountway said, in designing the Aquila bath lift, they had sought to avoid using the generic stainless steel open base frames with cross bars across the front and middle, on the basis that that model reduced access to the underneath of the bath lift for cleaning. They argued that the design of the Aquila was unique because, unlike other reclining bath lifts, it had a 'horseshoe' shape base frame, which allowed greater exposure of the bath underneath the seat. Mountway said they held registered design rights with the Patent Office for the Aquila's base frame, which they believed supported their statement that their base frame was unique.

Mountway submitted documentation to support their argument that the Aquila's base frame was a unique design, which included a document prepared by their marketing team detailing the design requirements relating to the base frame and the need to develop an open base frame similar to one of their other products; the Aquila bath lift information manual; an internal document containing images of different reclining bath lifts' base frames, and an internal document containing pictures of different bath lifts and issues relating to cleaning them.

Assessment

1. Not upheld

The ASA noted Mountway's argument that their product should only be compared with other battery-powered reclining bath lifts. We acknowledged that the brochure made it clear that the Aquila bath lift was battery powered through text such as "with a backrest that reclines at the touch of a button", "Button-controlled angle adjustment" and "battery level indicator", as well as in the product specifications on the reverse of the brochure. We also noted that the results of Mountway's in-house weight tests showed that the Aquila weighed 9.6 kg, and was lighter than the next heaviest battery-powered reclining bath lift, which weighed 11.9 kg, by 2.3 kg. We considered that, even when based on the published weights of the other battery-powered bath lifts, the Aquila was still the lightest, weighing 9.6 kg in total compared to the 12 kg published weight of the next heaviest battery-powered reclining bath lift. We understood from the published weights of those bath lifts that the heaviest constituent part of the Aquila, which was its base unit weighing 6 kg, was lighter than the heaviest constituent parts of the other reclining battery-powered bath lifts, which weighed between 6.29 kg and 12 kg.

We acknowledged that there were manual bath lifts on the market that weighed less than the Aquila. However, we considered that most consumers would purchase a bath lift in consultation with an Occupational Therapist or other healthcare professional, or after conducting their own research into the different products on the market, and would therefore be aware of the main differences between a manual bath lift and a battery-powered bath lift. We also considered that most consumers would understand that a battery-powered bath lift would generally weigh more than a manual bath lift because of the added weight of the battery pack and its associated mechanics. We therefore considered that it was reasonable for Mountway to compare the Aquila with other battery-powered reclining bath lifts only. Because of that, because the text of the brochure made it clear that the Aquila was a battery-powered bath lift, and because the published data showed that the Aquila was the only reclining powered bath lift to weigh under 10 kg,was at least 2 kg lighter than other battery-powered reclining lifts, and that its heaviest constituent part was "up to 2 kg lighter" than the heaviest part of those other bath lifts, we concluded that the claims made about the weight of the Aquila and its constituent parts were not misleading.

On this point we investigated the ad under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 19.1 (Other comparisons) but did not find it in breach.

2. Upheld

We noted that Mountway had carried out their own legroom tests on the Aquila and their competitors' bath lifts. We also noted that they had tested the bath lifts by making sure that the units were able to recline fully inside the bath without meeting any obstructions, and that they had tested the bath lifts with a real user. However, we considered that the methodology of the test, which involved marking the position of the user's heels on a piece of paper fixed to the bottom of the bath, was not robust enough for a fair comparison to be made between the different bath lifts tested. We considered that, instead, legroom should be measured from the back of the bath lift's seat to the end of the bath. We also considered that Mountway's method did not take account of possible variables in the test, such as movement of the paper used for marking the users' heels, movement of the measuring device, and discrepancies, however unintentional, between the position of the users' legs and heels when testing each different bath lift. We understood that the legroom measurements recorded by Mountway showed that, in some cases, the difference between the legroom measurement of the Aquila and other reclining bath lifts was as little as one inch or less. We therefore considered that the slightest variable or inconsistency in their tests could affect those results, and because of that we concluded that the claim "up to 4" more legroom than other reclining bath lifts" had not been adequately substantiated.

On this point the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 19.1 (other comparisons).

3. Not upheld

We noted that Mountway acknowledged that there were other reclining bath lifts on the market that had an open base frame, as well as their argument that the claim "Unique, open base frame" referred to the fact that the particular 'horseshoe' design of the Aquila's open base frame was unique. We also noted that they had submitted documentation that showed the various open base frames of other reclining bath lifts, as well as discussion documents relating to the design and cleaning requirements of the Aquila during its development. We acknowledged that Mountway had registered the 'horseshoe' open base frame design for the Aquila with the UK Intellectual Property Office. We understood that for a product design to be registered, that design must be new, have individual character, and should not remind an informed person of an existing design. We also understood that registering a design meant that the shape and pattern of the design was protected for the sole use of its owner. We considered that most people would understand the claim "unique, open base frame" to refer to the specific style of the open base frame featured on the Aquila, rather than to open base frames in general. We also considered that that was reinforced by the position of the claim in the section headed "Hygienic and simple to clean" and alongside an image showing the 'horseshoe' open base frame in situ while the bath was being cleaned. Because of that, and because the 'horseshoe' open base frame was registered as a new, individual design, we concluded that on this point the ad was not misleading.

On this point we investigated the ad under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 19.1 (other comparisons) but did not find it in breach.

Action

We told Mountway to make sure they did not make claims relating to the legroom measurement of the Aquila until those claims could be substantiated with rigorous tests.

Adjudication of the ASA Council (Non-broadcast)