Ad description
Two circulars, for water softening services, were distributed in April 2011:
a. The first circular was delivered in an envelope labelled “IMPORTANT WATER INFORMATION”. The leaflet inside was labelled “WATER INFORMATION” on both front and back. Claims inside the leaflet included “Softened water can also greatly improve conditions such as dry skin, eczema and psoriasis. Scientists at the University of Nottingham are currently researching the effects of softened water on childhood eczema - see www.swet-trail.co.uk for the latest information ...”.
b. The second circular had a yellow and black cover, with a chequered border. It stated “PENALTY CHARGE NOTICE” on the front and back. The same text was repeated inside, adjacent to the text “FAILURE TO RESPOND WILL RESULT IN A £35 FINE EVERY MONTH”. Further text inside outlined costs related to scale build up as a result of hard water; it described those costs as ‘fines’.
Issue
The ASA received 26 complaints, from members of the public and a social work professional:
1. one complainant challenged whether ad (a) was likely to cause fear and distress without good reason;
2. the same complainant also challenged whether ad (a) was misleading, because it was not obviously identifiable as marketing communication;
3. another complainant challenged whether the efficacy claims related to skin conditions in ad (a) were misleading and could be substantiated, in particular because he understood the trial referred to in the ad said there was no benefit in using a water softener for the treatment of childhood eczema;
4. most of the complainants challenged whether ad (b) was likely to cause fear and distress without good reason; and
5. some of those complainants also challenged whether ad (b) was misleading, because it was not obviously identifiable as marketing communication.
6. The ASA challenged whether ad (a) discouraged essential treatment for psoriasis, a condition for which medical supervision should be sought.
Response
1. & 2. Harvey Water Softeners Ltd (HWS) said they had discontinued the use of the envelope in which ad (a) was sent.
3. They said the relevant text had been amended to avoid any chance of misunderstanding and the reference to the trial had been removed, because it had now finished. HWS said there was no guarantee of benefits for skin as a result of using soft water and they had carefully worded the claim to say “can” rather than stating that there would be an improvement in skin conditions, because that had never been proved scientifically. They said they had distributed over five million leaflets with the same wording and message but there had been only two complaints.
4. & 5. HWS said they had felt there was a link between the nature of a penalty charge notice and the cost implications hard water could have. They said the value of £35 was an approximate figure they would expect a household to spend on dealing with hard water and that cost could be avoided by the installation of the water softener they manufactured. They said they had presented the cost and potential saving in many ways previously and had decided to trial the penalty notice format. They said they received positive enquiries in response but also some negative feedback about the similarity of the mailing to a genuine penalty charge notice. They said the trial was therefore cut short where possible and it was decided the mailing would not be distributed in future. HWS said they recalled the ad from distributors and stopped as many as possible from being sent out. They said they had done so before hearing from the ASA, because they had quickly realised their mistake and wanted to minimise any further discontent. They said they had also apologised directly to those recipients who had contacted them.
6. HWS said the reference to psoriasis had been removed.
Assessment
1. Not upheld
The ASA noted ad (a) was in an envelope labelled only “IMPORTANT WATER INFORMATION”. We considered recipients were therefore likely to understand the mailing to be of significance in relation to their water supply. While we considered consumers would believe the mailing to be of more importance than was the case, we did not consider the presentation of the envelope was such that it was likely to cause fear or distress. We therefore concluded that the ad did not breach the Code on that point.
On this point, we investigated ad (a) under CAP Code (Edition 12) rule 4.2 4.2 Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention. (Harm and offence) but did not find it in breach.
2. Upheld
We noted ad (a) was in an envelope labelled only “IMPORTANT WATER INFORMATION”. We noted the mailing did not make clear its commercial intent and was not obviously identifiable as a marketing communication. We considered recipients would therefore expect the mailing to include significant information in relation to their water supply and were likely to believe the mailing to be of more importance than was the case. We concluded that the ad was misleading.
On this point, ad (a) breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications) and 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
3. Upheld
We considered the text “Scientists at the University of Nottingham are currently researching the effects of softened water on childhood eczema - see www.swet-trail.co.uk for the latest information ...”, particularly in the context of the claim “Softened water can also greatly improve conditions such as dry skin, eczema and psoriasis”, implied evidence was expected to demonstrate that softened water could benefit childhood eczema. We noted we had not seen evidence in support of that. We also noted we had not seen any evidence to demonstrate that softened water could “... greatly improve conditions such as dry skin, eczema and psoriasis”. We therefore concluded that the ad was misleading.
On this point, ad (a) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration) and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, health-related products and beauty products).
4. Upheld
We noted the presentation of ad (b), in particular the cover, was very similar to that of a penalty charge notice. We also noted the mailing included the text “FAILURE TO RESPOND WILL RESULT IN A £35 FINE EVERY MONTH”. We considered recipients would understand the mailing to relate to a genuine penalty notice and concluded that the ad was likely to cause fear and distress without justifiable reason.
On this point, ad (b) breached CAP Code (Edition 12) rule 4.2 4.2 Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention. (Harm and offence).
5. Upheld
We noted the presentation of ad (b), in particular the cover, was similar to that of a penalty charge notice and the mailing included the text “FAILURE TO RESPOND WILL RESULT IN A £35 FINE EVERY MONTH”. We noted the ad did not make clear its commercial intent and was not obviously identifiable as marketing communication. We considered recipients would therefore expect the mailing to include significant information in relation to a penalty charge and were likely to believe the mailing to be of more importance than was the case. We concluded that the ad was misleading.
On this point, ad (b) breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications) and 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
6. Upheld
We noted ad (a) stated “Softened water can also greatly improve conditions such as ... psoriasis”. Because it gave advice on a condition for which medical supervision should be sought, we concluded that the ad could discourage essential treatment for psoriasis.
On this point, ad (a) breached CAP Code (Edition 12)
12.2
12.2
Marketers must not discourage essential treatment for conditions for which medical supervision should be sought. For example, they must not offer specific advice on, diagnosis of or treatment for such conditions unless that advice, diagnosis or treatment is conducted under the supervision of a suitably qualified health professional. Accurate and responsible general information about such conditions may, however, be offered (see rule
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
).
Health professionals will be deemed suitably qualified only if they can provide suitable credentials, for example, evidence of: relevant professional expertise or qualifications; systems for regular review of members' skills and competencies and suitable professional indemnity insurance covering all services provided; accreditation by a professional or regulatory body that has systems for dealing with complaints and taking disciplinary action and has registration based on minimum standards for training and qualifications.
(Medicines, medical devices, health-related products and beauty products).
Action
The ads must not appear again in their current form. We told HWS to ensure future ads were obviously identifiable as marketing communications and to ensure they did not cause fear and distress without justifiable reason. We also told them not to discourage essential treatment for conditions for which medical supervision should be sought and to ensure they held substantiation before making efficacy claims in future.
CAP Code (Edition 12)
12.1 12.2 2.1 2.3 3.1 3.11 3.7 4.2
