ASA Adjudication on Save Our Scenic Moray

Ad

A circular, for an anti-wind farm group in opposition to the proposed Dorenell wind farm.

Issue

Pendragon Consultants, acting on behalf of Infinergy, challenged whether:

1.  the claim: "Speyside businesses say NO to Dorenell Wind Farm" was misleading because it exaggerated the level of opposition to the wind farm;

2.  the claim: "Wind Farm threat to Whisky Glens" could be substantiated;

3.  "rare golden eagles will die in the turbines" could be substantiated;

4.  the claims "visitors will be deterred from returning to the area" and there would be a "a cash loss for accommodation providers" could be substantiated; and

5.  the claims "a danger of wildlife disturbance, pollution of rivers and loss of habitat" and "the area contains prime nesting sites" could be substantiated.

CAP Code (Edition 11)

Response

Save Our Scenice Moray (SoSM) disagreed that the circular constituted advertising material for the purposes of the CAP Code.  They believed it was material produced to inform the public about the proposed wind farm development and was not a sales promotion or ad for a product.

1. SoSM said some of the largest Speyside businesses supported the Stop Dorenell Windfarm campaign, including internationally recognised whisky distillers and large manufacturing companies and said opposition was not confined to one single business.  SoSM explained that opposition was committed and backed by substantial resources.

2. SoSM said the wind farm proposal was situated within Glen Fiddich and Glen Livet, both brand names for malt whisky, and argued the commercial success of these brands depended upon their relationship with the surrounding unspoilt countryside.  They explained that any industrial development overlooking, dominating or adjacent to undeveloped Highland areas would damage established brand identity and sales, thus constituting a "threat".

Furthermore, SoSM explained that "whisky glens" was a well understood generic term for wild countryside often used for hill walking, and referenced Infinergys Environment Statement which they believed acknowledged the proposed wind farm would be visible to hill walkers.  They also said The Cairngorm National Park Authority and Scottish National Heritage were objectors to the proposal because of its threat to the countryside.

3. SoSM believed that any eagle that collided with a rotating turbine blade would die and noted that Infinergys own statement said "Golden eagle and peregrine were predicted to experience a slight to moderate adverse impact due to collision risk." They therefore believed it was accurate to claim that golden eagles would die as a result of the development.

4. SoSM explained that Infinergys Environment Statement predicted that 8% of visitors would not return to the area if there was a wind farm development, which they argued would consequently result in a loss of income for accommodation providers in the area.

5. SoSM said that the Environment Statement acknowledged that there were potential threats to wildlife, rivers and the habitats of protected species which they believed supported the claim.  

SoSM also sent us an ornithological assessment from an expert concerning the conservation of Golden Eagles. He explained eagles had successfully bred in the area until 1990, thereafter, he believed high levels of nest disturbance led to breeding failure.  In the period 1999 to 2008, he said there had been no breeding at the site and speculated this was due to illegal disturbance. He argued that the Glenfiddich and Glenlivet hills have been, and should be, an important breeding area for Golden Eagles.

The experts assessment critiqued the methodology of the Environment Statement to survey the status of eagles because he believed that the site would be visited frequently by young eagles that were more mobile than the report anticipated.  Therefore, the expert believed there would be more young eagles at the site that could potentially collide with the turbines, raising the suggested collision rate of 0.1 Golden Eagles per year.  The expert argued that the Environment Statement should not only take account of the current Golden Eagle population but also the potential impact of the development on a restored eagle population. He believed the Dorenell wind farm would make it impossible for successful re-occupation to take place.

Assessment

The ASA noted SoSMs concern in relation to the applicability of the Code.  We considered that the circular sought to influence readers views on the proposed development and encouraged them to lodge objections with the Council planning department.  We concluded the circular was subject to the Code.

1. Upheld

The ASA understood that an external company had conducted a survey in 2009 to canvas the views of local businesses. Pendragon said  that out of 51 businesses, 16 supported the development, 15 were neutral and 12 opposed, which confirmed that opposition amongst businesses was not uniform.  We considered that readers would understand the claim "Speyside businesses say NO to Dorenell Wind Farm" as an absolute claim that implied all businesses were opposed to the proposed wind farm development. Because SoSM had not provided evidence to demonstrate that was the case, we concluded the claim was likely to mislead.

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

2. Upheld

We understood SoSMs belief that the proposed wind farm development would have an adverse effect on the Glen Fiddich and Glen Livet brands of whisky. However, we noted we had not seen any evidence to show that the development could have a detrimental impact on whisky brand identity or sales.  Pendragon argued that a study was commissioned to assess the water supplies used by local distilleries which concluded that the water used was independent of any water course that could, theoretically, be affected by the development, so the distilleries would not directly be affected.

We also noted SoSMs view that "whisky glens" referred to wild countryside and that they believed the development was a "threat" because turbines would be visible to hill walkers.  However, we understood the developers had removed all turbines that could be seen on the "Whisky Trail", a famous walk through the distilleries, prior to the submission of a planning proposal.  Furthermore, they believed the wind farm would be rarely seen from roads associated with the "Whisky Trail" and core paths would remain open during construction, thus removing any potential harm to the natural environment or its recreational use.

We considered it was not clear from the claim "Wind Farm threat to Whisky Glens", to what potential threat SoSM were referring.  Because the claim was ambiguous and could be interpreted as an absolute threat to the natural environment, or a threat to popular whisky brands for which we had not seen evidence in support, we concluded that the ad was likely to mislead.

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

3. Upheld

We noted the Environment Statement submitted by Infinergy stated there was a risk that Golden Eagles could collide with turbine blades but that it was deemed to potentially result in the death of one bird every ten years. We agreed with SoSM that birds colliding with a turbine blade were likely to die, but noted that the forecasted risk in the area of the proposed development was low.  We considered the claim "rare golden eagles will die in the turbines" was likely to be interpreted as meaning lots of eagles, or a significant number, would die as a result of the development.  Because we had not seen evidence to support that interpretation, we considered the claim exaggerated the developments relative risk to Golden Eagles therefore concluded it was likely to mislead.

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

4. Upheld

We noted Pendragons assertion that a MORI poll commissioned by the Scottish Renewables Forum and British Wind Energy Association found that if there were wind farms in the area, 90% of visitors would return to Scotland for a holiday, 20% had a positive view of wind farms, 51% had a neutral view and only 8% had a negative view and therefore might not return to the area.  This figure was reiterated in SoSMs response.  Pendragon also cited a report for the Scottish Government on the impact of wind farms on tourism which concluded that, provided planning and marketing processes were executed effectively, it would be feasible to meet both targets for renewable energy and tourism.  We noted we had not seen any other robust evidence to demonstrate that a significant number of visitors would be deterred.  We concluded, therefore, that the claim "visitors will be deterred from returning to the area" exaggerated the potential impacts the development would have on tourism and was likely to mislead.

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

5. Upheld

We noted the experts views on the breeding potential of the area. However, we considered that a claim estimating the potential risk to a species should be based upon current population figures which indicated the area was not a prime nesting site.  We acknowledged the Environment Statement identified potential threats to the local environment including the potential pollution of aquatic habitats during construction, but noted that the report also referred to measures the developers would take to mitigate these impacts.  

Although we understood that at the time the ad appeared there were concerns about the impacts the development could have, we considered the claim "a danger of wildlife disturbance, pollution of rivers and loss of habitat" implied that these effects would definitely result in permanent destruction to the natural environment, for which we had not seen supporting evidence.  Because the ad did not specify which habitat or natural feature could be at risk as a result of the development, or reflect the conditionality of moderate to adverse effects occurring, we concluded the claims were likely to mislead.

On this point the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 49.1 (Environmental Claims).

Action

The ad must not appear again in its current form.  We told SoSM to ensure they held robust evidence to support those claims capable of objective substantiation in future.

Adjudication of the ASA Council (Non-broadcast)