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ASA Non-broadcast Adjudication: Countryside Properties

Countryside Properties

Lakeside Drive
Centre Park
Warrington
WA1 1RW

MMC Estates

The Quadrant
Green Lane
Heywood
OL10 1NG

Date:

3 May 2006

Media:

Insert;Regional press

Sector:

Property

Complaint(s) from:

Cheshire, Lancashire (x2)

Complaint type:

Public

Complaint Ref:

41245

Complaint

The Greater Manchester Hazards Centre, Save Spodden Valley and two members of the public objected to a regional press insert for a property regeneration scheme. The insert took the form of a brochure. The heading on the front cover stated "The Regeneration of Spodden Valley Community News Autumn 2005". Text inside related the history of the Spodden Valley area, which included the site of the Turner Brothers' asbestos manufacturing facility, and stated "in 2004 the site was sold by Federal Mogul to MMC Estates and the Rathbone Trust. There are many individuals, organisations and interests that wish to 'Save Spodden Valley' ... The landowners, MMC Estates and the Rathbone Trust are committed to the comprehensive remediation (or clean-up) of the entire site including the wooded area ... Rochdale Borough Council has made it clear it wishes to see the whole site remediated ... Countryside Properties will not purchase the site unless and until successful planning consent has been obtained and the site has been fully remediated to the satisfaction of Rochdale Borough Council, The Environment Agency, and the Health and Safety Executive". The insert featured an interview with a Regional Director of an engineering consultancy that stated "There are two piles of rubble on site that were generated by the demolition of office buildings by contractors Connelly on behalf of Federal Mogul. Recent analysis, undertaken by both Encia and the Health and Safety Executive, shows that of the two piles (the larger known as 'Crush' and the smaller known as 'Fines') the tests have identified that 'Crush' is free of asbestos ... Although there are no official government guidelines on the safe concentration of asbestos in soil, the Health and Safety Executive have regarded concentrations of less than 0.01% as 'safe'." Text further on in the insert referred to "an active and passionate group 'Save Spodden Valley'" and listed five demands made by the group. Under the heading "WHO IS LOOKING AFTER THE PUBLIC INTEREST?", text stated "The regulators, independent bodies with powers and their consultants including: ROCHDALE BOROUGH COUNCIL ... ATKINS GLOBAL ... THE ENVIRONMENT AGENCY ... THE HEALTH AND SAFETY EXECUTIVE (HSE)".

Save Spodden Valley and a member of the public objected that:

1. the title "Community News" was misleading, because it did not make clear the insert was paid-for advertising material;

2. the insert misleadingly implied the claims made were supported by Save Spodden Valley, Rochdale Borough Council, Atkins Global, the Environment Agency and the Health and Safety Executive (HSE) and

3. the claims "in 2004 the site was sold by Federal Mogul to MMC Estates and the Rathbone Trust" and "The landowners, MMC Estates and the Rathbone Trust are committed to the comprehensive remediation (or clean-up) of the entire site including the wooded area" misleadingly implied the owners of the site were a registered charity.

4. The Greater Manchester Hazards Centre and Save Spodden Valley objected that the claim "the tests have identified that 'Crush' is free of asbestos" was misleading, because they believed the tests were insufficient to prove that the whole pile was free of asbestos.

5. The Greater Manchester Hazards Centre, Save Spodden Valley and two members of the public objected that the claim "the Health and Safety Executive have regarded concentrations of less than 0.01% as 'safe'" was misleading, because they believed the HSE had not made that statement and that an unofficial HSE document referred to "action levels" of 0.001% asbestos in soil.

CAP Code (Edition 11)

Ruling

MMC Estates (MMC) responded on behalf of the advertisers.

1. Complaints not upheld

MMC said the mailing was produced in response to requests from local groups for more information on the development of the site. They said it was freely distributed to local residents and to local civic buildings, including libraries, and was also included in the Rochdale Observer. They said they had no plans to use the mailing again but that it was the first in a series that they planned to publish to inform the community about the proposals to regenerate Spodden Valley and to provide a forum for them to express their views. They argued that the MMC Estates logo appeared on the front cover and that body copy stated "this newsletter has been produced by MMC Estates, supported by Countryside Properties PLC". They considered that readers would not be misled by the title "Community News".

The ASA noted that the MMC Estates logo appeared on the front cover and that body copy in the mailing explained that the mailing had been produced by MMC Estates supported by Countryside Properties plc. We considered that readers would understand from the tone and content of the mailing that it was not a community news sheet produced by a public body or community organisation. We concluded that the brochure was clearly identifiable as a marketing communication.

On this point, we investigated the ad under CAP Code clauses 6.1 (Honesty), 7.1 (Truthfulness) and 22.1 (Recognising marketing communications and identifying marketers), but did not find it in breach.

2. Complaints not upheld

MMC did not consider that the brochure implied the claims made were supported by Save Spodden Valley, Rochdale Borough Council, Atkins Global, the Environment Agency and the Health and Safety Executive (HSE) and argued that the independent role of each body was clearly stated.

We noted that text in the brochure under the heading "WHO IS LOOKING AFTER THE PUBLIC INTEREST?" stated "without the approval of all the necessary regulators and independent bodies with statutory powers, nothing will happen to develop or make this site safe" and then listed each organisation and explained its role. We considered that this established the independence of Rochdale Borough Council, Atkins Global, the Environment Agency and the Health and Safety Executive (HSE). We did not consider that the text "There is an active and passionate group 'Save Spodden Valley'" established any connection with MMC. We concluded that the brochure did not imply that the claims were supported by the organisations listed.

On this point, we investigated the brochure under CAP Code clauses 3.1 (Substantiation), 6.1 (Honesty) and 7.1 (Truthfulness), but did not find it in breach.

3. Complaints upheld

MMC said they had always referred to the land ownership as "MMC Estates and the Rathbone Trust" and they did not consider it implied a connection with the Eleanor Rathbone Charitable Trust. They argued that the Eleanor Rathbone Charitable Trust had no connections with Rochdale and no involvement with land ownership or remediation within the area. They said the shortening of the title to Rathbone Trust was not meant to mislead readers into thinking they were a charitable trust and pointed out that Rathbone (Jersey) Limited was a business trust. They said in future they would refer to "MMC Developments Ltd and a Trust of which the trustees are Rathbone (Jersey) Limited".

We welcomed MMC's decision to amend their advertising. We considered that, without further qualification, the use of the word "Trust" in that context implied charitable status and that readers might infer that "the Rathbone Trust" was linked to the Rathbone charity or the Eleanor Rathbone Charitable Trust. Because the company described in the brochure as "the Rathbone Trust" was not a registered charity but a business trust called Rathbone (Jersey) Ltd, we concluded the brochure was misleading.

On this point, the brochure breached CAP Code clauses 3.1 (Substantiation), 6.1 (Honesty) and 7.1 (Truthfulness).

4. Complaints upheld

MMC argued that there was no stipulated guidance on the testing frequency for stockpiled materials, but said there was guidance to landfill operators on compliance testing frequencies. They said the "Crush" pile was generated from the demolition of an office block that had already been subjected to a thorough intrusive survey, the removal of all materials containing asbestos and agitated air sampling to determine that the building was free of asbestos prior to demolition. They sent documentation from the survey and the demolition to substantiate their argument. They explained that the sampling of the pile by Encia and the HSE was carried out as an additional measure to address public concern and because the Crush stockpile had been left on site by the previous site owners for a long time, during which potentially deleterious materials could have been added to the stockpile. MMC considered the sampling by Encia and the HSE adequate to carry out an initial characterisation of the materials and said additional testing had since taken place and had been submitted to the Environment Agency for consideration. They believed that testing would show the "Crush" did not contain detectable levels of asbestos. They said the HSE did not find any evidence of asbestos contamination in the "Crush" pile.

We noted that the previous site owners had removed materials containing asbestos from the building prior to demolition. However, we were concerned that, according to MMC, other materials could have been added to the pile after demolition took place and that, at the time the brochure was produced, the supplementary testing process was not complete. The HSE said their tests were not suitable to determine whether the pile was free of asbestos but only whether work could safely be conducted on the pile. They said the testing carried out by a demolition company in December provided a more suitable basis on which to conclude whether or not the pile was free of asbestos. We noted that these tests were carried out after the brochure was published. We did not consider that an "initial characterisation" was adequate evidence to substantiate the claim "'Crush' is free of asbestos". We concluded that the brochure was misleading and asked MMC to ensure that they held full substantation before making similar claims in future.

On this point, the brochure breached CAP Code clauses 3.1 (Substantiation), 6.1 (Honesty) and 7.1 (Truthfulness).

5. Complaints upheld

MMC said that the 0.01% figure appeared as a result of a typographical error. They said when they received the complaint they had corrected the error in all marketing literature immediately.

We noted that the report to which the brochure referred had not been endorsed by the HSE and that it referred to "action levels" that were used to determine whether decontamination work was necessary but did not refer to "safe" levels of asbestos. We noted that the "action levels" referred to in the report were below 0.001% and not 0.01% as stated in the brochure. We concluded that the brochure was misleading and we asked MMC to take greater care when producing marketing communications in future.

On this point, the brochure breached CAP Code clauses 3.1 (Substantiation), 6.1 (Honesty) and 7.1 (Truthfulness).

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