ASA Adjudication on Luv n'care Ltd

Ad

Two magazine ads for Nuby drinking cups.

a. The first ad featured a picture of two drinking cups and was headlined "FREE† Nuby Grip'n'Sip CUP. CHOOSE FROM PINK OR BLUE”. Text in three bubbles underneath the products stated “ UK's No 1 Best Selling Silicone Spout”, “THE WORLD’S No. 1 CUP BRAND”, and “BPA FREE”. Further text underneath stated “The perfect first cup designed for little hands and mouths. Over the last eight years Nuby™has established itself as the UK's No.1 brand for silicone spout cups with No-Spill™technology, and has recently re-launched in new, bright colours and packaging. The Grip’n’Sip™uses Nuby's unique Touch-Flo™technology to make drinking easy and stress-free for your little one. The Touch-Flo™valve opens when a small amount of pressure is applied to the soft silicon spout, so it's perfect for your baby's first cup and first sips". The ad included a direct response panel for readers to claim their free cup. At the bottom left-hand corner, a footnote, running vertically up the side of the ad, stated "†TO SEND FOR PLUS P&P *BASED ON SALES FROM 2005 - 2008".

b. The second ad showed a selection of Nuby drinking cups and was headlined "Britain's Favourite Silicone Spout just got better!". Text at the bottom of the ad stated "Specially designed with Touch-Flo™technology for easy drinking”. Text in a bubble at the bottom of the ad stated “THE WORLD'S No 1 CUP BRAND". In the bottom right-hand corner small print running vertically up the side of the ad stated "*Based on sales in over 150 countries worldwide. Based on sales of Nuby cups from 2005 to 2008."

Issue

Jackel International Ltd challenged whether:

1. the claim "THE WORLDS No.1 CUP BRAND" in ads (a) and (b) was misleading and could be substantiated;

2. the claims "UKs No.1 Best Selling Silicone Spout" and "Over the last eight years Nuby has established itself as the UKs No. 1 brand for silicone spout cups" in ad (a) was misleading and could be substantiated;

3. the claim "Britains Favourite Silicone Spout" in ad (b) was misleading and could be substantiated;

4. the market leadership claims for the UK and the world in ads (a) and (b) could be verified;

5. the small-print in both ads was legible and suitably prominent;

6. the claims in both ads that the products made drinking easy for small children were misleading and could be substantiated;

7. the claim in ad (a) that the GripnSip cup was "FREE" was misleading, because readers were charged for postage and packaging and because that charge was not made sufficiently clear in the ad.

CAP Code (Edition 11)

Response

1. Nuby said that during the 9-month period from January to September 2010, they had sold in excess of 30.8 million cups globally through their extensive distribution network which covered approximately 150 countries. They did not believe any other cup brand or company could dispute their sales figures. They also believed that they had more global coverage than any other international cup brand compared to its competitors. They provided evidence which supported their sales figures and evidence to show sales figures for their international distributors. They did not consider the ads were misleading.

2. & 3. Nuby explained that they understood that from 2005 to 2008, theirs was the only silicone teat cup on the market. Consequently, they believed that their sales data during that period substantiated their claim that they were the UKs best selling silicone spout. They understood that since 2008, a small number of other silicone teat cups had come on to the market, and they cited the sales data between 2005 and 2008 which they felt both explained and substantiated their best selling claim.

Nuby said that they had been selling their products in the UK since 2002 and provided evidence to support those sales. They explained that they had only begun to sell cups in 2004; that meant they had only been selling cups for seven years, and not the eight as stated in the ad. They said future ads would reflect the time period for which they had been selling cups.

4. Nuby explained that between 2005 and 2008, their product was the only branded silicone spout cup on the market. They explained that whilst their packaging had carried the "Tommee Tippee" brand name, only Nuby branded cups were on sale. They explained that the co-branding on the packaging reflected the exclusive distribution rights the complainant had over Nby branded products during that period. Nby considered that it was reasonable for them to rely on the sales of co-branded products sold during that period.

5. Nuby believed the small print in their ads was sufficiently legible and therefore the ads were not misleading. They said in relation to the free offer in ad (b), the headline claim of a free cup was asterisked to small print running vertically up the page. They added that that small print was capitalised and clearly legible. They did not believe that that small print was misleading.

6. Nuby explained it was well known that small children experienced difficulties with drinking from normal, open cups. Consequently, they believed that parents were likely to buy covered drinking cups which had a silicone teat, spout or straw. They believed parents would understand that those cups were easy for small children to use. They did not consider that parents would expect objective, scientific tests to have been carried out on how easy their cups were to use for children. They said that had tests been carried out, those tests would have relied on subjective opinion from the small children themselves, which they did not believe would provide any meaningful data.

Nuby explained that drinking technique would vary between children and because of this, they did not believe they needed to make a comparison against other similar products on the market. They did not believe the ad suggested that their product was the easiest or easier to use than other products on the market.

Nuby believed the soft silicone spouts and straws used in the Touch Flo technology made the act of drinking easier for children to drink than with some standard hard spout and slit valve systems. They explained that slit valve systems required a varying and sometimes excessive amount of suction to overcome the valve which released the flow of liquid. They said that they had developed a combination of design features which aimed to remove the need for excessive suction by using pressure rather than suction to allow the flow of liquid, whilst it still achieved a leak proof function.

7. Nuby said that the cost of postage was £1.30 whereas they had only charged consumers £1 to respond to the offer. They believed the cup was free because they had charged consumers less than the minimum avoidable cost of responding to the offer. They did not believe the ad was misleading on this point.

Assessment

1. Upheld

The ASA noted Nuby had sold over 30.8 million cups worldwide in the period January to September 2010 and they provided evidence to support those sales figures. We noted they distributed to 150 countries and that they were confident that competitors could not dispute their sales figures. However, we considered that the claim "Worlds number 1" implied that they had sold the most cups worldwide compared to all international competitors. We considered that Nby needed to hold robust, comparative evidence which reflected both their own sales data and that of their competitors in order to substantiate the claim. Because we had not seen robust evidence relating to Nuby's competitors, we concluded the claim was misleading.

On this point, ads (a) and (b) breached the CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 18.1 (Comparisons with identified competitors and/or their products).

2. Upheld

We considered the claims "Over the last eight years Nuby™ has established itself as the UK's No.1 brand for silicone spout cups" and "UKs No. 1 Best Selling Silicone Spout" implied that Nuby had been selling cups since 2002. We also considered that the ad suggested that because of those sales, Nuby had become, and currently were, the market leader for those types of cups.

We noted that the small print in the ads referred to sales data between 2005 and 2008 as the basis of the number one claims, and we understood from Nuby that during that period they were the only company on the market selling that type of silicone spout cup. However, as stated above, we considered that the claims would be seen as referring to Nuby's current sales figures. We understood that since 2009 other silicone spout products had come onto the market, and we therefore considered that we needed to see recent, robust, comparative sales data that was current at the time the ad appeared to substantiate the claims.

In addition, and notwithstanding our concerns in point 5 below about the legibility and prominence of the small print in both ads (a) and (b), we considered that the qualifying text, which explained that the claim was based on data from 2005 to 2008, contradicted rather than qualified the overall impression created by the market leadership claims made in the ads, that Nuby were currently the market leaders.

Because we had not seen comparative data that showed that Nuby continued to sell more silicone spout cups than its competitors and because we considered that the qualifying text contradicted that claim, we concluded that the ad was misleading.

On this point, ads (a) and (b) breached CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 18.1 (Comparisons with identified competitors and/or their products).

3. Upheld

We considered the claim "Britains favourite silicone spout ..." was a claim that Nuby was the UK market leader for silicone spout products. As stated in point two above, we considered that that type of market leadership claim would be understood by consumers as referring to Nuby's current sales. We therefore considered we needed to see data that showed that they continued to sell the most silicone spout cups in comparison with their competitors. As explained in point 2 above, we noted that we had not seen comparative evidence in support of the claim, and we therefore considered that Nuby did not hold sufficiently robust evidence to substantiate the market leader claim in the ad. We therefore concluded that on this point the ad was misleading.

On this point ad (b) breached CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 18.1 (Comparisons with identified competitors and/or their products).

4. Upheld

We understood that Nuby believed that during the period of 2005 to 2008, they were the only company with a silicone spout cup on the market and provided data showing their own sales for that period. However, we noted that we had not seen evidence that Nuby continued to sell the most cups in the UK or worldwide from 2009 until 2010, the period when we understood other similar products had entered the market. Because we considered the claims suggested that the advertisers were the current market leaders when we had not seen evidence that that was the case, we concluded that the claims had not been substantiated.

Moreover, we noted that ads (a) and (b) made a comparison between Nuby and other silicone spout cup manufacturers, and we considered that, given the small market in which the advertiser operated, it was likely readers would infer a comparison was being made between Nuby and other identifiable silicone spout cup companies, such as the Tommee Tippee brand manufactured by Jackel International Ltd. We therefore considered that the ads should have set out how information used to make that comparison could be checked by consumers. Although the ads stated the sales period on which Nuby had based the claim, we noted that the ads did not explicitly state that the comparison could be verified by contacting Nuby. We were also concerned that ads (a) and (b) did not contain a signpost to the means by which consumers and competitors could verify the basis of those comparative claims, such as by directing them to the relevant website. Because consumers were unable to verify the claims, we concluded the ads breached the Code.

On this point, the ads breached CAP Code (Edition 11) clauses 18.1 and 18.3 (Comparisons with identified competitors and/or their products).

5. Upheld

Notwithstanding our concerns in point 3 that the content of the small print in ads (a) and (b) contradicted the market leadership claims in those ads, we considered that the small print in ad (a) relating to the free offer and sales data was legible. However, we noted that the small print ran vertically up the page, and we were concerned that its position on the page meant that it could have been overlooked by the reader. We considered that the smallprint contained important information likely to affect consumers understanding of the offer and the headline claim, and therefore that it should have been positioned more prominently in the ad. Because it was not, we concluded that ad (a) was misleading.

We considered the small print in ad (b) relating to sales data was very small and therefore illegible. Additionally, we noted that it ran vertically up the page and we considered that it could be missed by consumers. We considered that the small print contained information which clarified the basis of the headline claim, and, we therefore also considered that it should have been clearer and positioned more prominently in the ad. Because it was not we concluded that ad (b) was misleading.

On this point the ads breached CAP Code (Edition 11) clause 7.1 (Truthfulness).

6. Not upheld

We noted Nuby's comments that the ease of use was open to subjective interpretation, and we considered that most parents would understand that ease of use of silicone spout cups would vary from child to child. We also noted that the ad did not claim that Nuby's silicone spout cups were easier to use than other similar products. We noted the claims relating to ease of drinking were preceded by references to the advertisers Touch-Flo design and that ad (a) went on to explain that the Touch-Flo valve opened when a small amount of pressure was applied to the soft silicone spout. We considered in that context, the claims were likely to be interpreted by consumers as suggesting that it was an appropriate cup for children to use. We therefore concluded that the claims were not misleading.

On this point, we investigated the ads under CAP Code (Edition 11) clause 7.1 (Truthfulness) but did not find them in breach.

7. Upheld

We noted that the word "free" in the headline claim was linked to small print which appeared vertically at the bottom of the page. We considered that the small print, although not sufficiently prominent, was legible and could be read by those who wanted to respond to the offer. Additionally, we noted that the response panel itself, which consumers had to complete to send off for the offer, made clear that they needed to send £1 for the free cup. We therefore considered that it was clear from the ad that a charge was payable for postage and packaging, and that consumers would not be misled on this point.

However, we understood from Nuby that the £1 charge covered both postage and packaging. We noted that the CAP Code did not permit items to be called free when there was a charge for packing or packaging. Although we understood that the £1 did not completely cover the cost of postage because the charge did cover both postage and packaging, we considered that it was inaccurate to describe the cup as free. We therefore concluded that ad (a) breached the Code on this point.

On this point, ad (a) breached CAP Code (Edition 11) clause 32.5 (Free offers and free trials).

Action

Ad (a) and ad (b) must not appear in their current form again.

Adjudication of the ASA Council (Non-broadcast)