ASA Adjudication on JCB Sales Ltd

Ad

An ad in a trade magazine, for "Mini Excavator" digging machines by JCB Sales Ltd, was headlined "the UK's best selling minis".

Issue

Kubota (UK) Ltd (Kubota) challenged the claim "The UK's best selling minis".

CAP Code (Edition 11)

Response

JCB Sales Ltd (JCB) said the claim in the ad was based on independently verified market research data produced annually for the sector; they said they had used the most up to date data available to them at the time of the publication of their ad. They did not believe, therefore, that the ad was misleading. They said they defined a "mini" excavator as between one and three tonnes in weight.

JCB said they were aware of another market research company used by the industry that was a data exchange where manufacturers could voluntarily report their sales each month. They said that these data were not verified, and believed figures were sometimes over-reported in order to gain short term advantage in the market. They said, for that reason they preferred to rely on the full year position, as independently verified by the research on which they had based their ad.

They said they were not aware of any further appearances of their ad after the ASA first contacted them. They also said they had not resubmitted the ad for publication, and had no plans to re-use it in the future.

Assessment

Upheld

We noted the market research sent by JCB in support of their ad referred to unit sales and market share of mini excavators for 2006. We also noted that report said that the definition of a mini excavator was subject to varying interpretations by manufacturers, meaning the total numbers sold that were highlighted in various publications could vary by as much as 2000 machines. We noted JCB's market research gave sales figures for mini excavators weighing between under one tonne and four to six tonnes, although it mentioned vehicles in the six to eight tonne range and also referred to them as "minis". We noted this research showed JCB's machines (up to six tonnes in weight) were the best selling by volume and percentage market share in 2006.

The complainant, Kubota, told us the terms "mini" and "midi" excavator were not specifically defined and that some believed all excavators less than ten tonnes in weight were mini excavators, whilst others considered "mini" excavators to be less than six tonnes in weight. We noted Kubota sent alternative data, for 2007, which they said defined "mini" excavators as up to six tonnes in weight. We noted these data were made available to the industry quarterly and showed that Kubota's machines (when measured as those from under one tonne up to six tonnes in weight) had the greater sales by volume and percentage of market share for each quarter of 2007. We also noted these data showed that if JCB's definition of "minis" as machines between one and three tonnes was applied, Kubota still had a greater market share in 2007.

Kubota also sent 2007 data for mini excavator sales from the same market research company used by JCB. These data also showed Kubota had higher unit sales and percentage market share for 2007, although the data sent did not state how "minis" were defined.

We noted the 2006 report provided by JCB and on which they said the claim "the UK's best selling minis" was based, appeared robust and showed that JCB had the greater sales by volume and percentage market share (from under one tonne to six tonnes in weight) in 2006. However, we noted JCB's ad was published in September 2007 and that another ad containing the same claim was published in October 2007. We noted the data on which JCB had relied were published annually and therefore data for 2007 were not available until April 2008, after the ad was published. However, we also noted Kubota's data were provided to the industry quarterly and showed Kubota had the greater sales by volume and market share for each quarter of 2007. We accepted that Kubota's data were compiled from self-reported sales, but also noted the independently verified data for 2007 produced by JCB's preferred market research company closely matched Kubota's data for that year, and both showed Kubota were market leaders in 2007.

We noted that the difference in terms of percentage market share between JCB and Kubota for mini excavators was small in both 2006 and 2007. We also noted the data sources used by JCB and Kubota respectively seemed to be the two sources commonly used by the industry. We noted that, at the time JCB's ad was published, independently collated data for the whole of 2006 and self-reported data for the first three quarters of 2007 were available to both JCB and Kubota.

We noted JCB had relied on sales and market share data from 2006 to make the claim "the UKs best selling minis" and considered that the basis for the claim should have been stated in the ad.  Furthermore, we noted the ad was published in September 2007 and that industry recognised data from a different source suggested that Kubotas unit sales and percentage market share had increased relative to that of JCB  in 2007, which included the period immediately before the ad was published.  We concluded that, by relying on 2006 data as the source for the claim at the expense of more recent data that suggested the relative position of JCB and Kubota in the market might be changing, JCB had selected elements of the comparison in such a way as to give them an artificial advantage.  We concluded that JCB had not justified the claim.

The ad breached CAP Code 3.1 (Substantiation) 7.1 (Truthfulness) and 19.1 (Comparisons).

Action

We welcomed JCB's assurance that they had no plans to repeat the ad. We advised them to seek advice from the CAP Copy Advice team before publishing comparative ads in future.

Adjudication of the ASA Council (Non-broadcast)