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ASA Adjudication on Lush Retail Ltd

Ad

A leaflet and postcard, distributed in Lush stores, and an online sales promotion.

a. The leaflet, produced by the Hunt Saboteurs Association (HSA) was headed "HUNTING BAN, WHAT HUNTING BAN?".

b. The postcard, produced by Lush, stated "THE HUNTS ARE STILL AT IT! The foxes still need your help!" and invited customers to forward the postcard to their local Police Chief Constable.

c. The online sales promotion on the Lush website, for Mrs Fox Bubble Bar with 100% of the proceeds going to HSA, included information about fox hunting and the HSA.

Issue

129 complainants raised a number of different issues. They challenged whether:

1. ads (a), (b) and (c) were offensive to, and unfairly denigrated, hunts and hunters;

2. the claim "... a whopping 75% of the population want to see hunting with hounds remain a criminal activity" in ad (c) was misleading and could be substantiated;

3. ads (a), (b) and (c) misleadingly implied that hunts were intentionally and regularly breaking the law;

4. ads (a), (b) and (c) misleadingly implied that the Hunting Act was not being properly enforced;

5. ads (a) and (c) misleadingly implied that any form of hunting with dogs was illegal;

6. the claims "Hunting hounds usually lead short lives and are often killed and fed back to the pack when they are no longer useful" in ad (a) and "When hounds are no longer useful to the hunt, they are usually killed and their bodies sometimes get fed back to the pack" in ad (c) were misleading and could be substantiated;

7. the leaflet (a) and online sales promotion (c) were irresponsible, because claims such as "If you want to get involved in direct action ..." in (a) and "... the hunt sabs take direct action to save animals ..." in (c), promoted direct action against hunts and were likely to provoke violence;

8. the videos on the online sales promotion (c) were misleading because it was unclear whether they were filmed before the Hunting Act came into force; and

9. the claims "Scientific studies show that hunting with hounds plays an 'insignificant' part of regulating fox numbers" in ad (a) and "Scientific reports indicate that hunting with hounds plays an 'insignificant' role in controlling fox numbers" in ad (c) were misleading and could be substantiated.

CAP Code (Edition 11)

Response

1. Lush Retail (Lush) said the aim of the campaign was to raise awareness of the scope of the 2004 Hunting Act and to highlight alleged breaches of the Act and perceived limitations to its enforcement. They explained that they undertook animal welfare campaigns on a regular basis, using their website, shops and the media as ways of raising public consciousness about various forms of animal suffering. They believed that their customers were therefore likely already to be aware of their support of animal welfare and would not be offended by the information contained in the ads. They said the leaflet (a) and postcard (b) were available to pick up in Lush stores, but that customers would need to choose to access the website, because Lush did not direct traffic to the website via ads on third party websites, and customers were therefore unlikely to view the site unintentionally.

Lush pointed out that no graphic or shocking images, offensive language, demeaning or abusive names had been used in the ads, and they believed that their customers, aware of Lushs involvement in animal welfare, were unlikely to find the advertising offensive. They believed expressing views contrary to those held by the complainants did not make the advertising offensive or denigratory.

2. Lush said the claim was based on the results of an Ipsos MORI poll conducted for the International Fund for Animal Welfare (IFAW) and the League Against Cruel Sports and published in September 2009, which had shown that 75% of those asked believed fox hunting with hounds should not be made legal again.

3. Lush believed a clear intention to break the law was demonstrated by the number of signatories to a pledge on The Hunting Declaration website to do just that. They said the HSA received regular reports from their members who witnessed incidents that fell outside the scope permitted by the Hunting Act 2004, and volunteers for the League Against Cruel Sports monitored and reported alleged infringements on a regular basis.

Lush pointed out that the ads did not state the regularity of such breaches of the law, only that such breaches were believed to have occurred. They said the claims in the leaflet (a) "hunts around the country are still chasing and killing foxes" and "there are still hunters who are intent on breaking the law" did not state how many hunts were breaking the law, but merely that some were doing so. They acknowledged that the online sales promotion (c) claimed that breaking the law was "widespread", but believed it was justified in light of newspaper reports and eye witness accounts. Lush argued that the claim in ad (c) "most hunts quickly realised that they can continue to hunt foxes under the cloak of so-called trial-hunting" was qualified by the statement "in the opinion of experienced hunt sabs and monitors around the country", which they believed made clear that the claim "most hunts" was an opinion. They said all the ads referred to illegal fox-hunting and breaches of the Hunting Act and they did not therefore believe that readers would infer that all hunts and hunters were in breach of the law, but rather that a proportion of them appeared to be so, some of the time.

4. Lush said the enforcement of the Hunting Act fell specifically, but not exclusively, under the remit of the Metropolitan Police Wildlife Crime Unit, which they understood had a small budget and staff. They said a 2005 Naturewatch Wildlife Crime Survey of police forces throughout the UK showed that police wildlife officers were committed but under resourced. Lush understood that guidance issued by the Association of Chief Police Officers (ACPO) stated that gathering evidence of illegal hunting was difficult, that police forces had more pressing priorities, and that forces should rely on anti-hunt activists to produce such information.

5. Lush said the leaflet (a) did not claim or imply that all forms of hunting were illegal and believed that, because it referred to the Hunting Act, readers would understand that it was hunting as prohibited by the Act that they were referring to. They also believed it was clear from the claims ... we are proud to launch our latest campaign against illegal fox hunting", ...the Hunting Act, which outlawed the chasing and killing of foxes with packs of dogs" and "Under the Hunting Act it is OK to go out into the countryside with horses and a pack of hounds, but it is illegal to use those hounds to chase and kill wildlife" in the on-line promotion (c) distinguished between legal and illegal activity.

6. Lush said the claims that hunting hounds were put down when they were no longer useful to the hunt was based on the 2000 Committee of Inquiry into Hunting Dogs in England and Wales (The Burns Report). The Report cited evidence from the Countryside Alliance (CA) and the Master of Foxhounds Association (MFHA) that it was a common, but not universal, practice for hounds belonging to registered packs to be put down after six or seven years of hunting, when they were considered to have reached the end of their working lives. Lush said a 2003 press release on MFHAs website also stated that after five or six hunting seasons, when they were seven or eight years old, most hounds were physically unable to run with the rest of the pack and, because hounds disliked being left behind and were liable to be a risk hazard to the hunt, there was no option but to humanely put them down. Lush explained that the English foxhound as a breed had an anticipated natural lifespan of ten to 13 years and they therefore believed the claims that hunting hounds usually led short lives was accurate.

Lush said the claims that the dogs were fed back to the pack was supported by a newspaper interview published in 1992, in which a named Huntsman reported the practice. They said an investigation by the HSA into practices at one particular hunt kennels had revealed the corpses of hounds in a feed bin on the day of the Countryside March in 1997.

7. Lush said direct action was a public form of protest, which was unconnected to violent activity. They believed that it was clear from the ads that in this context, "direct action" involved a consumer buying a product, which provided a financial donation to the HSA, and completing a petition. They said the leaflet (a) invited consumers to get involved in direct action by supporting the HSA, but they did not believe advocating financial support of a peaceful organisation would provoke violence. They said the leaflet (a) also invited consumers to become hunt saboteurs and explained that joining the HSA required adherence to their guidelines, which included avoiding direct confrontation with riders and supporters, as well as any tactics that did not directly help the hunted animal, such as interfering with hunt supporters cars, and not spraying substances on hounds, horses or supporters. Lush said ad (a) clearly stated that the HSA used "peaceful means" to protect wild animals and gave examples of direct action, such as covering the scent of a hunted animal with a harmless spray and using hunting horns to call the hounds away from the fox. They believed such non-violent forms of direct action were socially responsible and that both the HSA guidelines and the leaflet (a) specifically prohibited violence.

Lush said the online promotion (c) clearly stated that the HSA used "non-violent means". They maintained that the only direct action suggested by the promotion was to ... visit your local Lush shop, sign a post card to your Chief Constable ... buy a Fabulous Mrs Fox Bubble Bar and help spread the word". They refuted any suggestion that the tone of the online promotion (c) was anything more than designed to raise awareness, and did not believe that it condoned or glorified violence in any way. Lush did not believe that the ads contained anything that would provoke a reasonable person to act violently.

8. Lush said the videos were included in the on-line promotion for information and to raise awareness of the issue in general, and therefore they did not consider that specifying the dates of the videos was relevant. However, they said all the videos were filmed after the passing of the Hunting Act and supplied the ASA with the dates the videos were taken. They said some of the still photos shown between the videos were possibly before the Hunting Act, but they believed that as they were used for illustrative purposes only, they were not misleading.

9. Lush said the claims were based on the conclusions of The Burns Report, which in turn was based on two pieces of commissioned research. They pointed out that the Burns report stated that traditional foxhunting with dogs was almost certainly insignificant in terms of the management of the fox population as a whole. Lush also provided the ASA with a further research study that concluded that a ban on hunting was unlikely to result in a dramatic increase in fox numbers, because the number of foxes killed by hunting was relatively small.

Assessment

1. Not upheld

The ASA considered that it was clear that the focus of ads (a), (b) and (c) was on the 2004 Hunting Act and the illegal hunting of foxes with hounds, rather than on all hunts and hunters. Although we acknowledged that some hunt supporters might object in principle to ads for an organisation such as the HSA, we did not consider that such advertising was likely to cause serious or widespread offence.

Furthermore, because we considered that consumers would understand that the claims in the ads related to illegal hunting specifically, rather than to hunts or hunters in general, we also concluded that ads (a), (b) and (c) had not unfairly denigrated hunts and hunters.

On this point, we investigated ads (a), (b) and (c) under CAP Code clauses 5.1 (Decency) and 20.1 (Denigration) but did not find them in breach.

2. Not upheld

We considered that the claim ... a whopping 75% of the population want to see hunting with hounds remain a criminal activity" implied that a representative survey of the UK population had recently been carried out to gauge support for the continuation of a hunting ban. We noted the claim was based on the results of an independent survey of 2003 adults, taken shortly before the online promotion appeared, which showed that 75% of those polled believed that fox hunting with hounds should remain illegal. We concluded that Lush had substantiated the claim and that it was therefore not misleading.

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

3. Upheld

We considered that the claims "Despite the Hunting Act taking effect ... organised hunts around the country are still chasing and killing foxes" in ad (a), "THE HUNTS ARE STILL AT IT! ... Unfortunately there are still hunters who are intent on breaking the law ..." in ad (b) and "Since the Hunting Act came into force in 2005 there has been widespread breaking of the law by foxhunts" in ad (c), along with repeated references in the ads to hunts breaking the law, would be understood by consumers to imply that some hunts were regularly and intentionally breaking the law. We also considered that those claims were objective claims capable of substantiation.

We noted that Lush had offered to provide testimonials from people who had witnessed hunts breaking the law. However, we understood that the CAP Code stated that testimonials alone did not constitute substantiation for a claim and that opinions expressed in them must be supported, where necessary, with independent evidence of their accuracy.

We noted the pledge on the Hunting Declaration website and newspaper articles that reported alleged breaches of the law, which Lush had supplied as evidence for the claims. However, we understood that the Hunting Declaration website had not been updated since 2004 and that the newspaper articles were dated 2006, soon after the Hunting Act came into force. We considered that that evidence was not sufficiently robust to support the claims that hunts were intentionally and frequently breaking the law. We therefore concluded that the claims had not been substantiated and were misleading.

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

4. Upheld

We considered that the claims "... police have stated it's not a priority to enforce the law and have left the hunts to continue their blood sport with little fear of prosecution", "Until the law is tightened up and properly enforced ..." and "Hunt saboteur groups go out ... and do the job Westminster and the police have failed to do" in ad (a), "Please do your bit by actively enforcing the law of the land ... other animals cannot be safe until you make the commitment to take action" in ad (b), and "police are not making an enforcement a priority, so for hunts, it's business as usual", "It's disgraceful that the Hunt Saboteurs Association ... are obliged to enforce a law ..." and "... usually police don't collect evidence or prosecute hunts ... If police got more involved in enforcing the act [sic] ... a lot fewer animals would suffer" in ad (c) implied that the law was not being properly enforced by the police. Whilst we acknowledged that the ad (c) also stated that "many people have been prosecuted under the new law", we did not consider that that statement alone countered the overall impression created by ad (c) that the Hunting Act was not being properly enforced.

We understood that, because the Hunting Act was the law of the land, the police had a duty to enforce it and that the ACPO guidance suggested that they would do so proportionately and according to priorities. We also understood that a number of prosecutions had been instigated since the passing of the Hunting Act. We recognised that, for a number of reasons, there might be difficulties in gathering evidence of illegal fox hunts, but we also noted that we had not seen evidence to suggest that, if the police were in possession of such information, that they would not enforce the law. We therefore concluded that on this point the ads were misleading.

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

5. Not upheld

We noted ad (c) explained that the Hunting Act outlawed the chasing and killing of foxes with packs of dogs and whilst it was legal to hunt with hounds, it was illegal to use those hounds to chase and kill wildlife. We also noted ad (a) referred to hunting and killing foxes with dogs as a breach of the Hunting Act, and explained that saboteurs were needed to monitor and sabotage those instances of illegal hunting. We considered that it was clear that ads (a) and (c) referred to the illegal hunting of foxes with hounds in particular, and concluded that consumers were unlikely to believe they implied that all forms of hunting with hounds was illegal.

On this point, we investigated ads (a) and (c) under CAP Code clause 7.1 (Truthfulness) but did not find them in breach.

6. Upheld

We understood that the 2000 Burns Report was an independent, comprehensive inquiry into the issues surrounding hunting and, in the absence of more recent research, we considered it to be an authoritative report on the subject. We noted the Report quoted the CA and MFHA confirming that foxhounds were often put down when they were no longer useful to a hunt, which at the time was estimated to be around 3,000 hounds a year. We therefore considered that the claims "Hunting hounds usually lead short lives and are often killed ... when they are no longer useful" in ad (a) and "When hounds are no longer useful to the hunt, they are usually killed ..." in ad (c) were unlikely to mislead.

We also noted the newspaper interview from 1992 and details of the HSA reported incident from 1997 provided by Lush. However, we did not consider that anecdotal evidence, which was also dated, was sufficiently robust substantiation to support the claims that hounds were fed back to the pack when their hunting lives were over. Because we had not seen evidence to support those particular claims, we concluded that they were misleading.

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

7. Not upheld

We noted ads (a) and (c) invited consumers to become involved in direct action by joining the HSA, supporting them either financially or by becoming a hunt saboteur and described the kind of activities they undertook as part of their campaign. We understood that Lush defined "direct action" as action used to obtain demands, but we considered that that in itself did not necessarily suggest violent means. We noted there were no descriptions of violent acts in the ads, and that ads (a) and (c) referred to using "peaceful means to protect wild animals" and "non-violent means to protect hunted animals" respectively. We therefore did not consider that the ads suggested that violence would be used to achieve the HSA's aims, or that such acts would be required by joining or supporting the HSA. Whilst we acknowledged that the actions described in the ads, such as using hunting horns or harmless sprays to cover the fox's scent, could be disruptive, we did not consider that they would be regarded as violent activities by most people. We therefore concluded that ads (a) and (c) did not condone, or were likely to provoke, violence.

On this point, we investigated ads (a) and (c) under CAP Code clauses 2.2 (Social responsibility), and 11.1 (Violence and anti-social behaviour) but did not find them in breach.

8. Not upheld

We noted the videos were not dated, but nonetheless understood that they were all filmed after the passing of the Hunting Act. However, we considered that, because the videos were illustrative of the kind of action the hunt saboteurs were currently involved with, consumers were unlikely to be misled by the omission of the dates of when they were filmed.

We also noted some of the photographs were taken before the Act was passed, but because we understood that they were also illustrative of activities currently undertaken by hunt saboteurs, we did not consider that they were likely to mislead consumers about the kind of action taken by the hunt saboteurs, the reaction from hunt supporters and riders, or the outcome of a hunt. We therefore concluded that the videos and photographs were not misleading.

On this point, we investigated ad (c) under CAP Code clauses 7.1 and 7.2 (Truthfulness) but did not find it in breach.

9. Not upheld

We noted the claims that hunting with hounds played an insignificant role in the control of fox numbers, in ads (a) and (c) were based on the conclusions of independent scientific research carried out for the Burns Report and also by further subsequent research. We therefore considered that the claims had been substantiated and concluded that they were unlikely to mislead.

On this point, we investigated ads (a) and (c) under CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness) but did not find them in breach.

Action

The ads must not appear again in their current form.

Adjudication of the ASA Council (Non-broadcast)