Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TV ad, for mobility scooters, showed various people driving five-wheel scooters. The voice-over stated "It's hard to see how something this safe, this comfortable, this agile, yet with this much technology could be so simple to use. The Quingo classic was a revolution." It then showed various scenes of people driving three- and four-wheel scooters, including over a pavement kerb, resulting in them becoming unstable. The voice-over stated "It not only overcomes the stability issues of this three wheeler, and the agility and posture issues of this four wheeler, but also the kerb handling limitations of both." On-screen text stated "Technical demonstration: Discovery Mklll". Various people were then shown driving the five-wheel scooter while the voice-over stated "So with the five-wheel Quingo, stability isn't just a little bit better, journeys aren't just a bit more comfortable and kerb climbing isn't just a bit smoother. Now we've applied what we've learned to a range of five-wheel scooters. You don't have to be a certain weight to fit a Quingo, the Quingo fits you and when you feel this confident on a scooter you'll get out more, see more, enjoy more. Call for your free brochure on 0800 085 XX XX that's 0800 085 XX XX. Quingo. Five wheels are better than four are better than three. "
Issue
1. The complainant challenged whether the comparative scenes showing three- and four-wheel scooters were misleading, because he believed they were driven in a deliberately reckless manner over an uneven surface, whereas the five-wheel scooters were driven at a slower pace over a flat surface.
2. He also challenged whether the claim "five wheels are better than four are better than three" could be substantiated.
Response
1. Forever Active (FA) said the voice-over "It not only overcomes the stability issues of this three wheeler, and the agility and posture issues of this four wheeler, but also the kerb handling limitations of both" made clear that the comparison was between the Quingo and the specific three- and four-wheel scooters featured in the ad. They said, compared with the Quingo, the ability of the three- and four-wheel scooters to manoeuvre up and down a standard kerb at 45 degrees was limited, and that the scenes of the three- and four-wheel scooters performing this manoeuvre illustrated this comparison. They said there was no perceivable difference in speed between the four-wheel scooter and the Quingo and that all scooters were driven well within their permitted speed parameters of 4mph, which was below their maximum speed. They also said the three- and four-wheel scooters were not deliberately driven in a reckless manner over an uneven surface, but were shown driving on flat surfaces or climbing or descending a kerb and performing manoeuvres that their users may be compelled to perform in real life, regardless of the recommendations of the manual. They said the scenes of the three- and four-wheel scooters showed that users may not be able to choose a piece of flat ground on which to exercise a turn, because they either lived on a hill or were required to turn unexpectedly in an emergency. They said the only scene which showed a scooter driving over an uneven surface was when the five-wheel scooter was shown driving through a country park. They said the ad showed that, when the three-wheel scooter travelled along a pavement towards a dropped kerb, the steering turned, resulting in the inner rear wheel lifting off the floor and that, when it travelled off a kerb, a tipping motion occurred. They said the three- and four-wheel scooters were only able to mount or descend the kerb when they approached it close to a 90° angle, whereas the five-wheel scooter could perform the same manoeuvres through a much wider arc. They said, because the ad was intended to demonstrate the differences in the angle of approach between the different scooters and not the speed of approach, the concerns therefore about pace were irrelevant. They also said the three-wheel scooter was one of three three-wheel scooters used in a stability analysis, conducted by an independent systems and engineering technology organisation, which replicated the manoeuvres shown in the ad. They submitted the test results and said this demonstrated that the Quingo was more stable than three-wheel scooters in the same scenarios.
2. They said the ad did not compare the stability of four-wheel scooters with the Quingo, because stability was less of a problem with these scooters, and that the claim "five wheels are better than four are better than three" compared the manoeuvrability and comfort of the Quingo to a four-wheel scooter, and the stability of the Quingo to a three-wheel scooter. They said, however, that the ad did claim that the Quingo had better kerb climbing abilities than three- and four-wheel scooters and submitted three data documents that looked at the increased stability of the Quingo when turning and climbing slopes, and the turning circle advantage of a centre-designated wheel, which they believed substantiated this. They submitted a European patent certificate and two test certificates, from the Medicines and Healthcare products Regulatory Agency (MHRA) which they said compared the Quingo with the stabilizers removed, making it a three-wheel scooter, the results of which were substantiated by a customer satisfaction survey, which they also submitted. They also said the stability analysis replicated three "real life" scenarios and demonstrated that the five-wheel scooter was more dynamically stable than the three-wheel scooter in those scenarios. They submitted a report from the Medical Devices Directorate which they said highlighted the stability and manoeuvrability issues of three- and four-wheel scooters. They also submitted a list which indicated the length and turning circle of the five-wheel scooter, compared with various four-wheel scooters and said this showed that the turning circle of the five-wheel scooters was smaller and therefore demonstrated that those models were more manoeuvrable. They submitted an independent anthropometric/posture review which examined the posture and comfort of three Quingo models against three four-wheel scooters, and a product test confirming the extra foot and leg extension area in the Quingo, compared with a typical mid-range four-wheel scooter. The review concluded that the Quingos provided a more comfortable driving posture, while the test concluded that the Quingo had 34% more foot room and 80% more leg room and improved the turning circle by 20%. They said, while they used a representative selection of scooters in their tests, the result would be the same for any three- or four-wheel scooters.
They said, out of the 6259 customer satisfaction surveys sent out to Quingo customers between January 2008 and April 2011, 2637 were returned. They also said the survey demonstrated that 44% had previously owned a four-wheel scooter, and of these 80% said it was more manoeuvrable, and over 75% said it was more stable, more comfortable, safer and gave them greater confidence. They also submitted a separate document that indicated that 17% had previously owned a three-wheel scooter, and of these over 75% said the Quingo was more manoeuvrable and more comfortable, while over 85% said it was more stable, safer and gave them greater confidence. The advertiser said, in total, over 85% said the Quingo was better than their four-wheel scooter, and over 85% said it was better than their three-wheel scooter and believed this substantiated the claim "five wheels are better than four are better than three".
Clearcast said the ad showed five-, four- and three-wheel scooters being driven. They said the five-wheel Quingo was shown driving quite quickly in a tight circle, demonstrating its stability and manoeuvrability, and that the three- and four-wheel scooters were shown being driven at a similar speed. They said the four-wheel scooter was shown attempting to turn in a semi-circle and both the three- and four-wheel scooters were shown either driving down, or up, a kerb. They said it was common sense that a five-wheel scooter would be more agile and stable than three- or four-wheel scooters, particularly when travelling up and down a kerb and when three of the five wheels were at the front of the scooter. They said the demonstration was fair and genuine and that the on-screen text, shown at the same time as the three- and four-wheel scooters, made clear that they were Discovery MkIII models that were previously marketed by the advertiser.
Assessment
1. Upheld
The ASA noted the ad showed various scenes of people driving three- and four-wheel scooters, while the voice-over stated "It not only overcomes the stability issues of this three wheeler, and the agility and posture issues of this four wheeler, but also the kerb handling limitations of both" and on-screen text stated "Technical demonstration: Discovery Mklll". We considered that most viewers would understand this related to a comparison of the five-wheel Quingo with the Discovery Mklll, which we understood was a three-wheel scooter previously marketed and distributed by the advertiser.
We noted FA said the three-wheel scooter shown in the ad was one of three three-wheel scooters used in an independent stability analysis test and which replicated the manoeuvres shown in the ad. We acknowledged that it demonstrated that the five-wheel scooters performed more efficiently than three three-wheel scooters, for three manoeuvres tested. However, we also noted from the ad that, while all the three-wheel scooters and one four-wheel scooter were shown descending kerbs, and one four-wheel scooter was shown attempting to turn in a supermarket, all but one of the five-wheel scooters were shown turning on a flat surface. We noted the five-wheel scooter was also shown climbing a kerb but considered that it appeared to be travelling at lower speed compared to the three- and four-wheel scooters that were shown descending kerbs. We also considered drivers were likely to have more control when turning on a flat surface and when climbing a kerb, when compared with turning on a sloping surface or when descending a kerb. We noted the advertiser explained that the ad intended to show the limitations of the three- and four-wheel scooters, in relation to their angle of approach, when compared with the five-wheel scooter and that there would be some circumstances in which users would be compelled to perform manoeuvres, regardless of whether these were recommended in the user manual. However, we considered that most viewers would understand that the comparison was between three- and four-wheel scooters and the five-wheel scooter as they were intended to be used by an average consumer in everyday scenarios, and not by specific users in specific scenarios. We therefore considered that the scenes showing the three- and four-wheel scooters had been selected to create an unfavourable impression and were not a fair comparison to the scenes showing the five-wheel scooters, which showed users performing manoeuvres in what appeared to be everyday circumstances and as viewers might expect the manual to recommend. We therefore considered the comparison had given the advertiser an unrepresentative advantage and concluded that the ad was misleading on those grounds.
On this point the ad breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising) and
3.38
3.38
Advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, consumers. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage.
(Other comparisons).
2. Upheld
We considered viewers were likely to understand from the scenes of the three- and four-wheel scooters, in conjunction with the voice-over "It not only overcomes the stability issues of this three wheeler, and the agility and posture issues of this four wheeler ..." and the on-screen text "Technical Demonstration: Discovery Mklll", that they compared the Quingo to the Discovery Mklll model. However, we also considered that most readers would understand the claim "So with the five-wheel Quingo, stability isn't just a little bit better, journeys aren't just a bit more comfortable and kerb climbing isn't just a bit smoother ... Five wheels are better than four are better than three" to mean that the Quingo was more stable, more comfortable and better at kerb climbing than three- and four-wheel scooters in general. We noted the advertiser believed that, because the Quingo was more stable, more comfortable and better at kerb climbing than three-wheel scooters, and more comfortable and better at kerb climbing than four-wheel scooters, the claim "five wheels are better than four are better than three" was not misleading. However, we considered most viewers would understand the claim to mean that the Quingo was more stable, more comfortable and better at kerb climbing than both three- and four-wheel scooters.
We noted the MHRA test certificates evaluated the dynamic stability of the five-wheel Quingo with the stabilizers removed, making it a three-wheel scooter, as well as the original five-wheel scooter. We also noted the three-wheel scooter experienced less stability, while performing three manoeuvres, than the five-wheel scooter, and that the stability analysis demonstrated that two five-wheel scooters were more stable, up to higher speeds, and better able to descend kerbs than three three-wheel scooters. However, we did not consider a comparison of three three-wheel scooters was sufficient to demonstrate that the Quingo was better than all or most three-wheel scooters on the market in terms of stability and kerb climbing. We noted the advertiser said the results would be the same for any three- or four-wheel scooters because all three- and four-wheel scooters had the same wheelbase, seat height adjustability and battery capabilities. However, we had not received evidence to demonstrate that was the case. We also noted the MHRA certificates and the stability analysis did not compare the stability of four-wheel scooters. We noted the report from the Medical Devices Directorate stated that three-wheel scooters were less stable, but more manoeuvrable, than four-wheel scooters but did not consider this substantiated claims made for the Quingo. We noted the product test document concluded that the Quingo had 34% more foot room and 80% more leg room than a typical four-wheel scooter and that the advertiser said this resulted in a tighter turning circle, whilst maintaining stability. We also noted the data documents indicated that, compared to a four-wheel scooter, the Quingo was more stable when turning, had an approximate increased stability of 25% when climbing slopes and turned in a smaller circle. However, in the absence of evidence to demonstrate that all three- and four-wheel scooters on the market were the same we considered more than one product needed to be compared in order to demonstrate that the Quingo was more stable and more manoeuvrable than all or most four-wheel scooters.
We also noted out of 6259 customer satisfaction surveys sent out between January 2008 and April 2011, 2637 were returned. We also noted a separate document indicated that the survey demonstrated that, in terms of stability, manoeuvrability, comfort, safety and confidence, 89.73% said the Quingo was better than their four-wheel scooter, while 87.63% said it was better than their three-wheel scooter. However, we considered that, because the customer satisfaction survey reported on the subjective experience of users, it could only be used to substantiate the subjective elements of comparison such as comfort, and not the objective elements of comparisons such as stability, manoeuvrability and safety. We noted 79.77% of those participants who used to own a three-wheel scooter, and 77.39% of those who used to own a four-wheel scooter, said the Quingo was more comfortable. We also noted the anthropometric/posture review examined joint angles and postural support and the associated comfort facilitated by three Quingo models, when compared with three four-wheel scooters. The conclusion stated that that the Quingo was more adjustable, provided more comfort and facilitated a greater hip angle range than the three four-wheel scooters tested. It also indicated that the driving controls of the Quingo were easier to reach for most users and provided a greater knee and ankle angle choice. We considered these improvements were likely to result in increased comfort.
We acknowledged that it was reasonable for the advertiser to claim that, compared with three- and four-wheel scooters, the Quingo was more comfortable. We also considered that it was likely that a five-wheel scooter would provide more stability than a four- or three-wheel scooter. However, we considered that the evidence supplied did not adequately compare the stability and kerb climbing abilities of the Quingo to all or most three- and four-wheel scooters on the market, in all or most cases, as suggested by the claim "So with the five-wheel Quingo, stability isn't just a little bit better, journeys aren't just a bit more comfortable and kerb climbing isn't just a bit smoother ... Five wheels are better than four are better than three". We therefore considered that the claim "five wheels are better than four are better than three" had not been adequately substantiated and concluded that it was misleading.
On this point the ad breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising),
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is 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) and
3.38
3.38
Advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, consumers. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage.
(Other comparisons).
Action
The ad must not appear again in its current form. We told Forever Active to ensure that comparisons were representative and could be substantiated with robust, objective evidence.
