ASA Adjudication on Farmsense Ltd

Ad

A direct mailing and trade press ad for Farmsense.

a. The direct mailing included a covering letter that stated " …. Farmsense are delighted to provide you with a guide to Effective Lambing. Inside you will find information on what to look for in a Quality Colostrum and I think you will find the results of our Independent Colostrum Analysis very interesting! …" and a booklet that was entitled "EFFECTIVE LAMBING 2007 Maximising Lamb Survival". The final page of the booklet was headed "UK Lamb Colostrum Analysis - by Company March 2006". Under the heading was a table that compared five different colostrum products, one of which was the Farmsense product, Ovicol. The table highlighted the manufacturer and product names and had the column titles "PACK SIZE"; "RECOMM'D FEED per LAMB"; "NUMBER of LAMB FEEDS"; "RECOMM'D RETAIL PRICE*"; "FARMER COST per LAMB FEED" and "1gG per LAMB FEED". Accompanying text stated "Who offers the highest level of immunity? In March 2006, samples of colostrum powder from each pack were uniquely coded to maintain anonymity and sent to an independent laboratory (Microtech Services Limited) for testing. An average was calculated from the three samples for each brand to arrive at the lgG per kilo in the comparisons (see table, opposite). All products were found to contain some immunoglobulin though in varying levels. The market brand offering the highest level of immunity was the Farmsense product 'Ovicol' which contained 38% more lgG per lamb feed than its closest competitor". At the foot of the page were photographs of five colostrum products: Osmonds Lamb Colostrum, Net-Tex Collate Ultra Concentrate, Farmsense Ovicol, Volac Lamb Volostrum and Kilco Downland Firstaid.

b. The press ad was headlined "EVEN IF WE DOUBLED THE PRICE … Ovicol would still be the best value* lamb colostrum on the market". The ad included a photograph of the Ovicol product and text in small print at the foot of the ad that stated "*A recent survey of colostrums available on the UK market concluded that six out of seven failed to provide the correct amount of immugloblin [sic] protein required. In fact most had less than 50% of the requirement."

Issue

Net-Tex Industries Ltd (Net-Tex) challenged whether:

1.  the testing referred to in ad (a) was independent, as implied, because they understood the tests were conducted on behalf of, and paid for by, Farmsense;

2.  ad (a) was misleading, because the final page included a photograph of a Net-Tex product, Collate Ultra Concentrate, but the test results attributed to Net-Tex in the table referred to a different Net-Tex product, Whole Colostrum, which was used for a different purpose from the Farmsense product, Ovicol, and the Net-Tex equivalent product, Collate Ultra Concentrate;

3.  the price, dose rate and level of active ingredient data given in the table of ad (a) for Net-Tex Whole Colostrum misleadingly implied that data applied to the pictured Net-Tex Collate Ultra Concentrate;

4. the data in the table in ad (a) was inaccurate, because they believed the immunoglobulin (IgG) content was overstated for Ovicol and understated for Whole Colostrum; and

5.  ad (b) was misleading, because it referred to the testing of seven products, whereas the table in ad (a) displayed the results of only five.

6.  Net-Tex and Osmonds challenged whether the claim "EVEN IF WE DOUBLED THE PRICE ...  Ovicol would still be the best value* lamb colostrum on the market" in ad (b) could be substantiated.

7.  Osmonds also challenged whether Farmsense could substantiate ad (b)'s claim that six out of seven colostrums failed to provide the correct amount of immunoglobulin protein required.

CAP Code (Edition 11)

Response

1.  Farmsense argued that the testing referred to in ads (a) and (b) was totally independent.  They said they sent the samples to the testing company in a coded state so that their anonymity was secured.  They argued that it was clear from the booklet in ad (a) how the testing was carried out and therefore the "independent" claim did not mislead.  

2.  Farmsense believed no one would be misled by the photograph.  They said there was no intent on their behalf to differentiate between the Net-Tex products; the photograph merely represented a range of their competitors' products and the Net-Tex product included in the photograph happened to be the one the photographic studio had available.

3.  Farmsense said anyone who bought the Net-Tex product 'Whole Colostrum' would understand that the data in the table related specifically to that product.  They submitted packaging from the Whole Colostrum product to demonstrate that the data supplied in the table applied to that product.

4.  Farmsense argued that the data given in the table had not been overstated, but was simply a summary of the test's findings.  They submitted a document entitled "Test Report", which listed 26 coded products and gave the "Bovine IgG (g/kg)" results of each, and a table entitled "UK Lamb Colostrum Analysis - February / March 2006", which gave details of 17 products the test coding referred to.  

Farmsense explained that, to arrive at the amount of IgG per lamb feed figure quoted in ad (a), they had taken the test results as quoted in the Test Report, which related to between two and four samples of each company's products, and taken an average of the result for each company.  They had then converted the average figure into a 'per lamb feed' amount, based on the recommended feed level per lamb quoted by the manufacturer.

They said, having checked their calculations, the lgG amount for the Ovicol product should have been quoted as 3.27 g and not 3.60 g as the ad stated.

5.  Farmsense said ad (b) had been running for over four years in industry press and had not prompted any complaints previously.  They said they were constantly testing their competitors' products and there were many other manufacturers in addition to the five referred to in ad (a)'s table.

6.  Farmsense explained that the ad was designed to position Ovicol as the premium brand product on the market.  They said it was run in conjunction with a series of other ads, which showed that the Farmsense product, Ovicol, was more expensive than competitors' products; they submitted examples of those other ads.

They pointed out that the cost to the farmer per lamb feed of Ovicol was £1.51, based on a 20-serving pack that retailed at £30.19, and that each serving contained 3.60 g lgG based on the findings given in the Test Report document.  Farmsense asserted that the cost per gram of lgG was therefore 41.9 pence and argued that, even if the cost of Ovicol was doubled, the cost per gram of lgG would only be 83.8 pence. They argued that, even at 83.8 pence per gram of IgG, it would remain the best value lamb colostrum product, in terms of its lgG content, in comparison with their competitors' products when their lgG content was calculated in the same way.  

7.  Farmsense explained that Ovicol was formulated in 1994 in conjunction with the Morden Institute in Scotland, which, they said, was the world's leading institute specialising in sheep production.  They said, at that time, their products were formulated to provide the optimum level of immunoglobulin protein (lgG) per lamb, which was found to be 3 g per lamb feed.  They pointed out that their formulation had never changed and that it was their understanding that products containing less than 3 g lgG per lamb feed did not provide enough immunoglobulin protein for a new born lamb.

They referred the ASA again to the documents entitled "Test Report" and "UK Lamb Colostrum Analysis - February / March 2006".

Assessment

1.  Upheld

The ASA noted Farmsense believed the testing was independent because they sent the samples to the testing company in a coded state.  We considered, however, that the claim "independent" implied the tests had been conducted without Farmsense's involvement.  Because the testing had been initiated and paid for by Farmsense we considered that the tests were not independent as the ad implied.

On this point, ad (a) breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).

2.  Upheld

We noted the table in ad (a) referred to the Net-Tex product Whole Colostrum whereas the accompanying illustration showed a different Net-Tex product - Ultra Concentrate.  

We considered that the table and illustration would be read in the same context; readers were likely to assume that the illustration, which featured five products, represented the same products described in the table above.  We also noted, apart from the Net-Tex product, the products illustrated were those included in the table.

We understood that the two Net-Tex products featured on the page, Whole Colostrum and Ultra Concentrate, were used for different purposes and considered that, by featuring both in the ad, it was not clear to which specific product the tabled information referred and readers could wrongly infer that Whole Colostrum and Ultra Concentrate were the same product.  We concluded that, because it did not accurately identify exactly which Net-Tex product was being used in the comparison, the ad was likely to confuse and mislead.

On this point, ad (a) breached CAP Code clauses 7.1 (Truthfulness) and 18.1 and 18.2 (Comparisons with identified competitors and/or their products).

3.  Upheld

We understood that the data supplied in the table referred to the Net-Tex product, Whole Colostrum and not the Net-Tex product used in the illustration, Ultra Concentrate.  We also noted the illustration of Ultra Concentrate, which showed the text on the product's packaging, included the text "Whole Colostrum Supplement ...".  Because the Net-Tex product in the table was identified as Whole Colostrum and because the same wording featured on the packaging of a different Net-Tex product Ultra Concentrate, an illustration of which was also included in the ad, we considered that the data used in the table for Whole Colostrum could misleadingly imply it referred to the pictured Ultra Concentrate, whereas we understood that Ultra Concentrate had a lower dose rate and different per lamb feed cost from that quoted in the table.  We concluded that the comparison was likely to mislead.

On this point, ad (a) breached CAP Code clauses 7.1 (Truthfulness) and 18.1 and 18.2 (Comparisons with identified competitors and/or their products).

4.  Upheld

We noted the Analysis document revealed which product the test code given in the Test Report document referred to and listed the results of the products of the manufacturers used in the comparison in ad (a).  

We also noted, to obtain a figure for the IgG per lamb feed content quoted in ad (a), Farmsense had taken averages of the test results of the products for each manufacturer and used the average as the basis of the immunoglobulin content in a feed portion for each product listed in the table. The text beside the table in ad (a) stated "An average was calculated from the three samples for each brand to arrive at the lgG per kilo in the comparisons" and considered that made clear the figures in the table were based on the average of the test results.  

Using the information supplied by Farmsense to calculate an average immunoglobulin content for each product, we found that the lgG content of the Volac, Osmonds and Kilco products was as reported in ad (a)s table.  We found, however, that the lgG content of Net-tex Whole Colostrum and Farmsense Ovicol, according to the reported findings, was 2.52 g and 3.27 g respectively and therefore slightly lower than the figures quoted in the table: 2.6 g and 3.6 g respectively.

Although it seemed that the lgG content of Whole Colostrum had not been understated, and the amount of lgG in Farmsense Ovicol had been overstated, we had not seen the trial papers in full or the methodology used to calculate the IgG content of each product and were therefore unable to establish definitively the veracity of the results given in the Test Report and Analysis documents.  We could not, therefore, be sure of the lgG content of Ovicol or Whole Colostrum and could not rely on the Test Report and Analysis documents to substantiate the accuracy of the data in ad (a).

On this point, ad (a) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1 and 18.2 (Comparisons with identified competitors and/or their products).

5.  Not upheld

We understood from the testing sheets submitted by Farmsense that the tests had incorporated several companies and a number of products manufactured by each company.  While we noted ad (a) featured only five of the products tested, we considered that that did not disprove the suggestion in ad (b), substantiated by the testing sheets we had seen, that at least seven products had been tested. We concluded that ad (b) was unlikely to mislead in this regard.

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

6.  Upheld

We understood that Farmsense had intended to convey the message that Ovicol was more expensive than other products on the market and was the premium brand.  

We noted the asterisk in the claim "EVEN IF WE DOUBLED THE PRICE ...  Ovicol would still be the best value* lamb colostrum on the market" in ad (b) was linked to small print that stated "*A recent survey of colostrums available on the UK market concluded that six out of seven failed to provide the correct amount of immugloblin [sic] protein required.  In fact most had less than 50% of the requirement."  We considered the claim implied not only that Ovicol currently provided better value for money, in terms of the amount of immunoglobulin and colostrum it delivered per pound, than Farmsense's competitors' products, but also that Farmsense could demonstrate that if the price of Ovicol were doubled, it would still provide more immunoglobulin and more lamb colostrum per pound than would any competing product.

We understood that Farmsense had calculated the cost per gram of lgG based on the findings in the Test Report document and believed their findings showed that, even if the cost of Ovicol was doubled, it would remain the best value lamb colostrum product on the market.  While we considered that we had not seen definitive evidence to demonstrate that the results reported in the table were accurate, we noted, using the information provided in the table and the calculation used by Farmsense, although the cost per gram of lgG in Farmsenses Ovicol product was lowest at 41.9 pence, the cost of one of the other products featured in the table, Net-Tex Whole Colostrum, was 75.7 pence per gram of IgG; the cost per gram of lgG in that product would therefore be less than the 83.8 pence price which would result from a doubling of Ovicols price.

In addition, the Test Report document included the findings of Bovine lgG of other coded products, which were not included in the Analysis document or the table in ad (a); the cost per gram of lgG of those products therefore remained unknown.

Because we had not seen comparative evidence to show that, pound for pound, the amount of immunoglobulin and colostrum provided by Ovicol was greater than that provided by all of Farmsense's competitors' products and also that, if the price of Ovicol were doubled it would remain similarly competitively priced, we concluded that the claim was likely to mislead.

On this point, ad (b) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

7.  Upheld

We understood that Farmsense believed, from tests they had conducted when the product was launched in 1994, the minimum amount of immunoglobulin required to be beneficial to a new born lamb was 3 g IgG.  We considered, however, that we had not seen documentary evidence to demonstrate that that was the case.  In addition, although we recognised that Farmsense had submitted a "Test Report" document, we considered that the information it provided was not sufficient to substantiate the claim "six out of seven colostrums failed to provide the correct amount of immunoglobulin protein required".  We concluded that the claim had not been satisfactorily supported and was, therefore, likely to mislead.

On this point, ad (b) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).  

Action

We told Farmsense not to imply testing had been conducted independently of them if that was not the case; to ensure that competitors' products were clearly identified in future comparisons to avoid confusion; to ensure that they held documentary evidence to show that any quoted immunoglobulin content was accurate and to remove the claims "EVEN IF WE DOUBLED THE PRICE ...  Ovicol would still be the best value* lamb colostrum on the market" and "six out of seven colostrums failed to provide the correct amount of immunoglobulin protein required" in the absence of appropriate documentary evidence to support them.

Adjudication of the ASA Council (Non-broadcast)