Background
Summary of Council Decision:
Two issues were investigated and both were Upheld.
Ad description
A press ad, in Horse and Hound magazine on 24 March 2011, for an inflatable safety jacket used for horse riding, featured text stating "The Point Two 'Pro Air' jacket is the only air jacket in the world that is classed as a body protector under European Personal Protective Equipment (PPE). Point Two produces the only equestrian air jacket in the world that carries CE accreditation for the air bag. Point Two is fully insured".
Further text stated "Riders Beware. It has become apparent that there are some other brands of air jackets being peddled into the market by agents, particularly at Horse Trials. Please be aware, the jackets in question do not have CE accreditation for the AIR BAG. This makes the product illegal to sell and will carry no insurance. To make matters worse they are producing a CE certificate that bears no relevance to CE accreditation for the air bag. Please contact trading standards to seek advice - you'll be entitled to a full refund. CE accreditation is there to protect the public and means that the product performs as the manufacturer claims and is not dangerous". A "CE Approved" logo featured below this text.
Issue
Hit-Air UK Ltd challenged whether the claims:
1. "Point Two produces the only equestrian air jacket in the world that carries CE accreditation for the air bag ..." and the "CE Approved" logo were misleading and could be substantiated; and
2. "Riders Beware ... ", " ... there are some other brands of air jackets being peddled into the market ... " and "Please contact trading standards ... " were denigratory to Hit-Air UK and discredited their business.
Response
1. Point-2 Equine Ltd (Point-2) explained that equestrian air jackets, such as their own product, were a type of personal protective equipment (PPE). They said that in order for equestrian air jackets to obtain proper CE certification, they had to be tested against the British Standard EN 340:2003 "Protective clothing - general requirements", which specified general performance requirements for all types of protective clothing in terms of ergonomics, innocuousness, size designation, ageing, compatibility and marking. In addition, they had to be tested specifically in relation to the performance properties of the air bag component. They said the British Standard made clear in its introduction that it could not be used alone but only in conjunction with another standard containing requirements for specific performance of a product in providing protection. They said where there was no standard for the particular product in question, the manufacturer would be required to develop a technical specification against which the product could be tested. They said that without this additional testing, the use of the CE mark was invalid. As there was no particular standard for the testing of equestrian air jackets, their product had been tested against the manufacturer's own technical specification for the air bag performance properties.
They said their air jacket had been first tested in 2009 by a Notified Body accredited for PPE testing. The jacket had been tested for speed of inflation and the force needed to activate the air bag. They provided a copy of the EC certificate awarded by the Notified Body dated 7 April 2009. They decided to have the jackets re-tested in 2010 and 2011 by a different Notified Body which included testing for the jacket's shock absorption properties. This was carried out in two stages: the children's sizes of the jacket (10 years old, 12 years old, small and extra-small) were tested in August 2010; and the adult sizes (small, medium, large and extra-large) were tested in May 2011. Point-2 provided copies of the relevant testing reports and CE certificates. They also provided an EC Declaration of Conformity from the manufacturer.
They explained that before the ad was published, they had made enquiries with Hit-Air about the CE certification for their jackets. Hit-Air had provided Point-2 with a copy of the CE certificate for their jackets dated 15 October 2010. That certificate stated that Hit-Air's jackets complied with the requirements of the British Standard EN 340:2003, but made no reference to the protection performance of the air bag. This had led Point-2 to infer that no testing had been carried out on the air bag.
They said this type of horse riding safety jacket had only been available for approximately four years. As far as they were aware, there were only six equestrian air jackets on the market worldwide (including their own) and four of these did not claim to be CE certified. The only other jacket on the market which claimed to be CE certified was Hit-Air's and Point-2 had believed, at the time the ad was published, that its CE certification was invalid because they had not seen evidence which showed otherwise.
Point-2 understood that Hit-Air had provided copies of the testing report and certificate for their jackets to the ASA. They said if Hit-Air had provided appropriate documentation to the ASA, they would accept that their assumption that Hit-Air's jackets were not fully CE certified was incorrect, and that the claim was misleading. They said they would not repeat this claim in future advertising.
2. Point-2 did not believe the claims were denigratory to Hit-Air or discredited their business. They pointed out that the ad did not refer to Hit-Air UK directly and that because the magazine had a wide readership in Europe, where there were at least five other equestrian airbag jackets on the market in addition to their own, there was no obvious link between the ad and Hit-Air. They understood an article had appeared in the same magazine regarding the launch of a second equestrian air jacket in the UK by Hit-Air but they had not known this article was appearing when they placed the ad. They said they understood that Hit-Air was selling its air jacket at trade stands in many parts of the UK, and that its reference to "peddled" in the ad was in line with the English Oxford Dictionary definition. They said they had concerns, at the time the ad was published, that Hit-Air were incorrectly claiming that their equestrian air jackets were fully CE certified, for the reasons in Point 1. They said that if it had been the case that Hit-Air's jackets were not properly CE certified, the product would have been illegal to sell and would not have carried product liability insurance.
They considered that, in warning readers that incomplete and/or misleading statements were being made in respect of another equestrian air jacket on the market, they had been acting properly. They said that the statements in the ad, rather than being denigratory or discrediting, described a serious position in which, they believed at the time, consumers were being seriously misled in an area where personal safety was concerned.
Assessment
1. Upheld
We understood that, as a category II item of PPE, an equestrian air jacket would have to be CE marked before it could be sold legally in the UK. We understood that to be properly CE marked, the product would need to satisfy the general requirements which applied to all protective clothing, as set out in the British Standard EN 340:2003, and that the air-bag component which provided the protection from a fall would also need to be tested and certified by a Notified Body which was accredited to test and certify PPE. We understood that there was no specific standard for inflatable equestrian jackets and so the product would need to be tested against a technical specification developed by the manufacturer.
We considered Point-2's documents. We noted that Point-2's jackets had been CE certified by a Notified Body in April 2009 in relation to the force necessary to activate the airbag and the time necessary to fill the air chamber, in addition to the general requirements for personal protective clothing. We understood that additional testing had been carried out by another Notified Body in relation to the jackets' shock absorption properties and that, at the time the ad was published, its children's sizes had also been tested for their shock absorption properties but the adult sizes had not. We considered therefore that at the time the ad appeared, all of Point-2's jackets had been tested and CE certified in relation to force of activation and speed of inflation of the airbag, and additionally the children's jackets had been tested and certified in relation to their shock absorption properties.
Hit-Air also provided the CE certificate and testing report for their jackets. We noted that the certificate dated 15 October 2010, which Point-2 had seen, was accompanied by a testing report. The testing report showed that each of Hit-Air's jackets on sale when the ad was published (models LV, SV2, MLV and H) had been tested for speed of inflation and the force needed to activate the air bag. The Notified Body which had tested and certified Hit-Air's jackets confirmed this in an e-mail, and explained that the jackets had also been tested for their impact reduction properties by another testing centre outside of the European Community, the results of which they had audited. We therefore considered that Hit-Air's jackets had been tested and CE certified in relation to the air bag.
We noted Point-2's understanding that only four other competitors worldwide sold similar air jackets and none of those claimed to be CE certified, presumably because they were not sold in the European Community. However, we had not seen any evidence to confirm their understanding was correct. Also, even if there were in fact no other suppliers of CE certified equestrian air jackets in the world, save for Point-2 or Hit-Air, in any event, we were satisfied that Hit-Air did have CE certification for their air jackets.
For these reasons, we considered that the claim "Point Two produces the only equestrian air jacket in the world that carries CE accreditation for the air bag..." had not been substantiated and was therefore misleading. We considered however that use of the "CE Approved" logo had been substantiated and was not misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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) but did not breach 3.50 3.50 Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation. (Endorsements and Testimonials).
2. Upheld
We noted that Hit-Air was not referred to directly in the ad. However, we also noted that the magazine in which the ad was published featured an article on page six about the launch of Hit-Air's air jacket in the UK which had the headline "Second air jacket launched in Britain". The article referred to the fact that rumours had circulated that Hit-Air was trading illegally without the CE European safety standard approval, and included comments from a Hit-Air representative and a representative of the British Equestrian Trade Association (BETA) about Hit-Air's CE status. We considered that, although the ad did not refer to Hit-Air directly, any readers who had read the article on page six, before or after seeing the ad on page 85, would have assumed that the claims in the ad referred to Hit-Air.
We noted Point-2's comment that they had not known about the article when they had placed the ad, although we also noted that Hit-Air disputed this.
We considered that the claims "Riders Beware ...", "... there are some other brands of air jackets being peddled into the market ..." and "Please contact trading standards ..." implied that another brand of air jacket, which had recently come onto the market, was disreputable and potentially hazardous, and the ad explained the reason for this being the lack of proper CE certification. We also noted the ad included references to the product being illegal and not carrying insurance, which we considered added to the impression that the other brand of air jacket was disreputable. We noted Point-2's comments that the ad described a serious position in which, they believed at the time, consumers were being seriously misled in an area where personal safety was concerned. However, we considered that Point-2's concerns were unfounded, for the reasons set out in Point 1.
For these reasons, we considered that the claims were denigratory to Hit-Air and discredited their business.
On this point, the ad breached CAP Code (Edition 12) rule 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Imitation and denigration).
Action
The ad must not appear again in its current form. We told Point-2 to take care when making claims about their competitors' products in future to ensure they are not misleading or denigratory and to ensure they hold adequate substantiation for their claims.
