ASA Non-broadcast Adjudication: Dyson Ltd

Complaint

The Consumers' Association, Bosch and a member of the public objected to a national newspaper advertisement for the advertisers' washing machine. The advertisement was headed "Dyson Contrarotator. The latest facts from Which." It stated "Independent tests carried out by the Which? laboratories show that the Dyson far outperforms the best washing machines. The Dyson was the only machine tested to get A+ with a full load at 40 degrees centigrade. The best competitor could only manage a C. Oddly, Which? magazine reported otherwise. So if you are looking at washing machines, it's worth checking the facts." The advertisement featured a bar chart, the vertical axis of which was labelled "Wash Performance (reflectance sum)". The bar chart compared the advertisers' washing machine's wash performance with that of three other unnamed brands. A note above the bar chart stated "Independent test laboratory results. Wash performance results of Cotton 40 ºC program tested at rated load to IEC 60456 (Wash performance grades referenced against Wascator at 60 ºC). Prices supplied by independent retailer. Dyson model shown £1,199." A photograph of one of the advertisers' washing machines was shown in the bottom right-hand corner of the advertisement. The Consumers' Association objected that: 1. the advertisement was misleading, because it compared the advertisers' washing machine's "heavy stains" programme to the other washing machines' "normally soiled" programmes; 2. they had not given permission for the advertisers to use their laboratory's test results in advertisements. Bosch: 3. objected that the lettered rating used in the advertisement did not relate to the recognised consumer rating used by the industry and was therefore misleading and confusing. The member of the public: 4. objected that the presentation of the bar chart misleadingly implied that the advertisers' washing-machine outperformed the others by more than it did, because the scale started at 230 and finished at 280 and seemed to distort the comparison in the advertisers' favour; 5. objected that the headline misleadingly implied that the data presented in the bar chart represented the results reported in Which? magazine; 6. challenged whether the other brands of washing machines referred to in the advertisement were identical to those tested in Which? magazine as he believed the advertisement implied; and 7. objected that the washing machine shown was not the one tested and did not cost £999, which was the price of the one tested.

CAP Code (Edition 11)

Ruling

The advertisers explained that the Consumers' Association (CA) had published an article, in their Which? magazine, that described the Contrarotator's 7 kg load performance as 'very poor'. They said when the article appeared they had just completed independent tests at the CA's testing facility; the tests demonstrated the Contrarotator's ability to significantly outperform the best washing machines on sale. The advertisers said the purpose of the advertisement was to inform consumers that the Contrarotator was capable of exceptional wash performance. 1. Complaint upheld The advertisers said they had selected the longest wash programmes for all the machines. They explained that the Contrarotator had choices within the basic programme for fabric type, temperature, spin rpm and soil type; the 'heavy stains' soil type increased the amount of contrarotation during the programme. The advertisers said the 'heavy stains' option used no more water or energy than the 'dirt' or 'dirt and stains' options. They said all the machines were run at 40 ºC and none had benefited from pre-washes or soaks. The advertisers pointed out that the 'heavy stains' option of the Contrarotator lasted 90 minutes whereas the programme length of the other machines lasted two hours and the Contrarotator had to contend with a load of 7 kg whereas the other machines had 5 kg loads. The advertisers maintained that the Contrarotator had no operational advantage whatsoever. They said they did not use the stain functions on the two models that featured them because they were operational 'add-ons' and they wanted to compare only the machines' full-length wash cycles. The advertisers acknowledged that the 'stain' options on the two models that had them enhanced the wash performances of those machines. Because two of the machines featured in the comparison had been tested without using the available performance-enhancing 'stain' options, the Authority considered that the comparison was unfair and misleadingly exaggerated the comparative wash performance of the advertisers' machine. The Authority told the advertisers not to repeat the comparison. 2. Complaint not upheld The advertisers said the CA laboratories were set up to enhance the commercial operation of that organisation; the laboratories carried out tests on behalf of manufacturers to their requirements and specifications. They said they had chosen the CA laboratories because they were nearby, commercially competitive and because they recognised the CA brand. They sent a copy of an e-mail from the CA; it stated 'you are able to use the results from the test work you commissioned from CARTC (Which Ltd?) but are not able to refer to CARTC as the named test lab. You are able to say "tested at an independent test laboratory" or similar.' The advertisers said they had been surprised when the CA had issued a press release announcing that Dyson had used the Which? Lab. They reasoned that, because it was no longer confidential, they could refer to it in their advertisement. The advertisers pointed out that the CA had broadcast their identity as the testers on subsequent occasions. The complainants told the Authority that they had issued the press release confirming they had carried out the tests for the advertisers because a national newspaper journalist had told them the advertisers had said the CA had carried out the tests for the advertisers. The Authority noted knowledge of the complainants' tests for the advertisers was already in the public domain before the advertisement appeared. It considered that for the advertisers to refer in their advertisement to those tests that they had commissioned and paid for was acceptable. The Authority did not object to the name of the laboratories appearing in the advertisement. 3. Complaint upheld The advertisers explained that, although industry standards suggested that comparative tests should be performed at 60 ºC, they had conducted their tests at 40 ºC because most consumers used 40 ºC wash programmes. They pointed out that the tests featured in the Which? magazine article had also been carried out at 40 ºC. The advertisers acknowledged that the lettered scale was the recognised consumer rating for wash performance and maintained that the lettered grading used in their advertisement to show wash performance at 40 ºC was compatible with the one used by the industry to show wash performance at 60 ºC. They believed the results of all four tested washing machines were lower than they would have been at 60 ºC because the detergent would be inhibited in a wash that was 20 ºC colder. The Authority noted The Energy Information (Washing Machines) Regulations 1996 (the Regulations) required dealers to display an energy information label on all displayed washing machines and in mail order catalogues and required suppliers to provide an information notice that contained the same information found on the energy information label. The Authority noted the Regulations required that the energy information label should include washing performance using a standard 60 ºC cycle expressed on a scale from A (for cleanest) to (G for dirtiest). It noted all the washing machines featured in the advertisement, including the advertisers' product, were attributed grade A for the purpose of the Regulations. The Authority considered that the use of a grading system in the advertisement similar to that required by the Regulations could confuse and mislead consumers about the wash performance of the advertisers' washing machine and also the wash performances of the best washing machines that were available. The Authority told the advertisers not to repeat the letter rating used in the advertisement. 4. Complaint not upheld The advertisers said the chosen wash performance reflectance sum range encapsulated a reasonable range of wash performance from very bad to very good. They argued that the wash performance of all modern washing machines would be within the area of the graph. They said a reflectance sum of 230 was a very poor wash performance for a modern washing machine. The advertisers said Which? classified wash reflectance values of below 260 as 'very poor' and values above 278 as 'very good' and pointed out that the graph covered a considerably broader range of wash performances. They argued that the lettered rating was more prominent on the chart than the reflectance sum values, which supported their belief that the bar chart fairly represented the differences between wash performances. The Authority considered that the scale of the bar chart was numbered clearly and did not object to the reflectance sum scale starting from 230. 5. & 6. Complaints upheld The advertisers said the advertisement was intended to highlight the contradiction between the damning headline from the Which? magazine article and the excellent results achieved in the CA laboratory tests that they had commissioned. The advertisers said readers would not confuse the two tests because the headline, which stated 'latest facts', distinguished their tests from the findings of the Which? magazine article referred to in the bodycopy of the advertisement. They said the statement 'independent tests' was stated twice in the advertisement to emphasise the nature of the tests performed at the Which? laboratories. The advertisers believed the tone of the advertisement was sober and factual, not accusatory. They said the advertisement did not imply wrongdoing by Which? and believed it attached credibility to the results obtained at the Which? laboratories. The advertisers pointed out that the CA had not complained on that point. The advertisers explained that the Which? magazine article tested one machine against the Contrarotator whereas they had tested three machines. They said they had chosen models that were better than the one product compared with the Contrarotator in the Which? magazine article. They asserted that the washing machine used in the Which? magazine article would have scored worse than the machine recommended by its manufacturers as their best and used in the comparison featured in the advertisement. The Authority considered that the advertisement misleadingly implied that the information in the bar chart was from tests conducted for Which? magazine but that the CA chose not to report it in Which? magazine. 7. Complaint not upheld The advertisers maintained that it was common practice for manufacturers to picture the model with which they wished to be associated. They said all three models of the Contrarotator had exactly the same wash performance. The advertisers explained that to guarantee clarity the advertisements stated that the pictured model cost £1,199. The Authority noted all models of the advertisers' washing machine performed as well as the £999 model and that the advertisement included the price of the featured model. The Authority did not object to the image of the £1,199 model in the advertisement.