ASA Adjudication on Now Group UK Ltd

Ad

A sponsored link, on Google, stated "Breathalyzer - UK's No.1 ... AlcoSense™ Independently Proven Against the Official UK POLICE Unit".

Issue

The complainant challenged whether the following claims were misleading and could be substantiated:

1. "UK's No.1 ";

2. "Independently Proven"; and

3. "Official UK POLICE Unit", because she believed there was no single "official" breathalyzer unit used by the police.

CAP Code (Edition 11)

Response

1. Now Group UK (Now) said the claim was based on volume sales of their two AlcoSense breathalysers, the only breathalysers sold in major chain stores nationwide.  They said their breathalysers were also sold in independent and small chain stores.  They believed no other breathalysers were sold through so many outlets.  

Now submitted documentary evidence of their turnover, which related to sales of the AlcoSense breathalysers alone and explained that, as they were a small company, they were exempt from filing accounts with Companies House.  As their turnover figures were not in the public domain, they asked us to keep them confidential.  Now nevertheless understood from a credit report that the turnover of their nearest competitor, who sold breathalysers as well as other products, was significantly less. They sent us a copy of the report to confirm that.   

Now said, because they knew the turnover figures for their nearest competitor and the unit selling price of that company's breathalyser, they were able to calculate how many units their nearest competitor sold in 2008.  Their calculations showed that they had sold significantly more units of the AlcoSense breathalysers.

The complainant pointed out, however, that another manufacturer of breathalysers had a higher turnover than Now.  Now said that company was not their direct competitor as they sold mainly to professionals, such as the police and the medical profession, and they had not therefore considered them for the purposes of the comparison.

2. & 3. Now said there were three official UK police breathalysers and offered to amend the claim.  They said one of the AlcoSense breathalysers had already been tested against two other breathalysers, one of which was an official police unit, on the Channel 5 programme 'Fifth Gear' and directed us to a video clip on their website.  The AlcoSense breathalyser gave the same reading as the official police unit included in the test.  Now also provided us with the results of quality control tests, conducted by a quality control expert instructed by them, which compared 35 units of one of the AlcoSense breathalysers to a police breathalyser.  The results showed a 'Pass' for each unit.

Assessment

1. Upheld

The ASA considered that readers were likely to infer from the claim "UK's No.1" that Now had a higher turnover and sold more units of AlcoSense breathalysers than competing products.  

From the documentary evidence provided, we noted Now's turnover from sales of the AlcoSense was greater than that of one company, who Now considered was their nearest competitor and who sold breathalysers and other products.  We noted Now's argument that, on account of their AlcoSense sales turnover alone being higher and knowing the unit sale price of that competitor's product, they were able to establish that their unit sales were also higher.  

We nevertheless understood that a competitor named by the complainant had a higher turnover, but sold fewer units of its breathalysers than Now.  Although we noted Nows argument that it was not relevant to include this company in the comparison, because they sold mainly to professionals, we noted their products could also be purchased for domestic use.  We therefore considered that this company should have been included in the comparison.

Since Now could not demonstrate that they had both the highest turnover and unit sales in the UK, we concluded that the claim "UK's No.1" was misleading.

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

2. Upheld

We considered that readers were likely to understand from the claim "Independently Proven" that the breathalyser had been tested by an organisation independent of Now.  We nevertheless understood that the tests were conducted on behalf of and paid for by them.  Further, while we noted the video clip from 'Fifth Gear' showed that one of the AlcoSense breathalysers gave the same reading as the official police unit, we considered that a single demonstration in uncontrolled conditions was insufficiently rigorous to substantiate the claim "Independently Proven".  Because the tests had not been conducted independently of Now, we considered that the claim was misleading.

3. Upheld  

We considered that consumers were likely to understand from the claim "Official UK POLICE Unit" that there was only one breathalyser approved for use by UK police forces.  We nevertheless understood that three such units existed and welcomed Now's willingness to amend the claim.  We concluded that the claim was misleading.

On points (2) and (3), the ad breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).

Action

The ad must not appear again in its current form.  We advised Now to contact the CAP Copy Advice team for guidance with the wording of future ads.

Adjudication of the ASA Council (Non-broadcast)