Background
Summary of Council decision:
Three issues were investigated, all were upheld.
Ad description
Claims on daysoftcontactlenses.com and an e-mail, for a contact lens manufacturer:
a. The home page of the website stated "£4.99 per Box of 32 lenses +25p /box delivery there are no additional charges Save up to £228* per year *Ref 1-day Acuvue from Specsavers Online". The "ORDER NOW" page of the website stated "daysoft replaces other brands for half the price". The page also featured a search function where consumers could search for daysoft products that matched their current contact lenses.
b. The e-mail stated "The UK Government applies VAT Relief (LVCR) on certain products shipped into the UK from the Channel Islands thereby encouraging products such as Daysoft's contact lenses and those of many of our competitors to be supplied from there. Regrettably it now appears likely that the UK Government will abolish their Channel Islands VAT exemption policy from 1st April. In effect, Daysoft contact lenses would then have to carry a VAT charge of 20%, £1 per Box of lenses, increasing the price per Box to £5.99 for deliveries to UK customers from 1st April 2012. A 32 Box of Daysoft at £5.99 will still represent very good value. For example, Specsavers current online prices for a 30 Box of Acuvue Moist is £14.75 and for a 30 Box of CIBA Aqua Comfort Plus is £14.50."
Issue
Specsavers Optical Group Ltd (Specsavers) challenged whether the following claims were misleading and could be substantiated:
1. the claim in ad (b) that "A 32 Box of Daysoft at £5.99 will still represent very good value. For example, Specsavers current online prices for a 30 Box of Acuvue Moist is £14.75 and for a 30 Box of CIBA Aqua Comfort Plus is £14.50", because they offered a cheaper more comparable product than the product being compared; and
2. the claim "Save up to £228* per year *Ref 1-day Acuvue from Specsavers Online", in ad (a), provided a misleading and unfair comparison, because they also offered a cheaper more comparable product.
3. They also challenged whether the search chart, in ad (a), was misleading, because the website showed a result to swap for Daysoft Silk, irrespective of the prescription and product entered and they believed Daysoft Silk was not the most appropriate product for many of the prescriptions listed.
Response
1. & 2. Prescription Logistics Ltd (PLL) believed there was no cheaper product that was offered by Specsavers online which was more appropriately comparable. They also argued that the Daysoft product had unique design related comfort performance, greener packaging, was supplied through an easy delivery service, was accompanied by professional support, featured superior handling and was offered in a wider power range than either Acuvue Moist or CIBA Aqua Comfort Plus. They disagreed with Specsavers' belief that CIBA Vision Focus Dailies were an appropriate comparator, because they did not have a UV inhibitor, which was a standard feature on Daysoft lenses. They also believed that detailed customer feedback showed that the lenses used in the comparisons were the most appropriate comparable products. However, they did not provide us with that evidence.
3. PLL said that wearing modality, not lens design, carried the greatest risk to wearers. They said their lenses were only available for daily disposable wear and argued that that was the least harmful way to wear lenses. They strongly believed that a Daysoft lens was a suitable alternative to any lens requiring cleaning or prescribed for overnight wear. They pointed out that the fourth of five steps within the order process required consumers to confirm their understanding that their lenses were for single daily wear only. They also provided the wearer instructions which reiterated that point. They therefore believed that a reasonable consumer would understand that they supplied only daily disposables and would therefore not be misled by the search charts suggestion that Daysoft Silk was a suitable replacement for Acuvue Oasys with Hydraclear Plus (AOHP), which consumers could wear for up to seven days/six nights
Assessment
1. & 2. Upheld
The ASA noted the headline, in ad (b), referred to a possible price increase and the body copy made repeated references to the price of both Daysoft and competitor lenses and commented that Daysoft's price still represented good value. We also noted ad (a) made repeated references to the fact that consumers could save money by purchasing their products instead of their competitors. In that context, we considered consumers were likely to understand the comparison related to the cheapest similar products.
We understood that Specsavers believed the CIBA Vision Focus Dailies lenses were a cheaper more comparable product than those products used in the comparison in ads (a) and (b). However, we noted PLL believed the Daysoft product was different to the CIBA Vision Focus Dailies lenses, because it was supplied through an easy delivery service, was accompanied by professional support, had unique design related comfort performance, superior handling, greener packaging, a UV inhibitor and was offered in a wider range than the lenses referred to by Specsavers. However, we considered the comfort and handling of the lenses were subjective matters; the green packaging, easy delivery and professional support were irrelevant to a comparison of the lenses and considered consumers would not expect a UV inhibitor to be a standard feature of lenses, but rather an option which they may select. We noted ads (a) and (b) compared the Daysoft lenses with 1-day Acuvue lenses, which were available in a slightly wider power range than the CIBA Vision Focus Dailies lenses, which Specsavers believed were a cheaper more comparable product. However, we noted ad (b) also compared the Daysoft lenses with the CIBA Aqua Comfort Plus lenses, which we understood were offered in the same power range as the CIBA Vision Focus Dailies. Whilst we noted the 1-day Acuvue lenses were available in a slightly broader range of powers than the CIBA Vision Focus Dailies, we considered the CIBA Vision Focus Dailies lenses were broadly similar to the Daysoft lenses and were intended to meet the same needs.
We noted PLL believed that their customer feedback showed that the lenses used in the comparisons were the most appropriate comparable products. Whilst we had not been provided with that evidence, we were concerned that, in and of itself, customer feedback would not be sufficient to demonstrate that the products referred to in the ad were the most appropriate comparable products.
Because Specsavers offered a cheaper more comparable product than the products referred to in the ads, we concluded that the ads were misleading and breached the Code.
On these points, the ads breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer 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 the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising), and
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
3.34
3.34
They must compare products meeting the same need or intended for the same purpose.
and
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
(Comparisons).
3. Upheld
We noted the 'ORDER NOW' page was headed "daysoft replaces other brands for half the price" and that text above the search chart stated "please click your present brand to select your daysoft replacement". In that context, we considered consumers would understand the search chart provided a suitable alternative lens for those currently worn by the consumer.
We noted the search chart recommended Daysoft Silk as a replacement for Acuvue Oasys with Hydraclear Plus (AOHP) and that Specsavers argued that recommendation was unsuitable. We acknowledged PLL’s belief that the daily disposable lenses they offered were a suitable alternative to lenses prescribed for overnight use, such as AOHP, because of their concerns over extended wear.
However, we were concerned that wearers of AOHP lenses, who could wear those lenses for up to seven days/six nights, would be advised by the search chart that Daysoft Silk were a suitable alternative, because we understood that those lenses were not designed for extended wear. On that basis, we concluded that the search chart was likely to mislead and breached the Code.
On this point, the ad breached Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer 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 the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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).
Action
The ads must not appear again in their current form. We told PLL to ensure all comparisons were fair and not likely to mislead in future. We also told them to ensure they hold robust evidence to support claims in future.
CAP Code (Edition 12)
3.1
3.3
3.33
3.34
3.39
3.7
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