Background
Summary of Council decision:
Three issues were investigated of which one was Not upheld and two were Upheld.
Ad description
A TV ad and magazine ad for the "JB7" music system:
a. The TV ad featured a voice-over which stated, "How many CDs do you own but never play? Think of the money they cost ... the space they take up. That's why Martin Brennan invented the revolutionary JB7". Later, as the ad cut to a still of an iPod and docking station connected to the JB7 the voice-over stated, "And now it seamlessly links to your iPod or MP3 player so you can download and listen to your digital music too". Text at the bottom of the screen stated "Load or play direct", then "Check with website for compatibility".
b. The magazine ad featured a picture of an iPod in a dock which was connected to the JB7 via a USB lead. Text stated "Introducing the world's very first 'Super-Dock'. Now you can store, browse and play all your favourite digital music as well as your complete collection of up to 5000 CDs on just one machine! • Seamlessly link to your iPod or MP3 Player • No networking required • Just use USB input and remote control • Download your complete digital music collection • Once downloaded leave your iPod or MP3 in the car • Text search your digital music far quicker • Bigger display allows you to search and play from across the room". Further text stated "The new 2012 Brennan JB7 links seamlessly to your iPod or MP3 player and, unlike any other docking station, its text search function enables you to find music on your iPod quicker than you can with the iPod itself ... The 2012 JB7 will link with a number of MP3 devices including the iPod Classic. For the complete list visit www.brennan.co.uk".
Issue
The complainant challenged whether:
1. ad (a) was misleading, because it did not make clear that the product did not come with the dock featured;
2. ad (b) was misleading, for the same reason; and
3. both ads were misleading, because they stated that the product seamlessly linked to an iPod or MP3 player whereas he understood that the "JB7" was only compatible with older iPod models and not the iPod Touch, iPhone or iPad.
Response
1., 2. & 3. 3GA Ltd (3GA) did not consider that the ads were misleading. They believed that the complainant was aware that the dock did not come with the product and that it was not compatible with all MP3 Players as a result of 3GA's marketing itself, and therefore that they could not reasonably claim to have been misled by their ads.
3GA Ltd highlighted that neither ad included an address or a phone number for consumers to place orders, but instead simply made viewers aware of the product, and encouraged them to visit the Brennan JB7 website for more information. They stated that prominent text on their website informed potential customers about its compatibility and the fact it did not come with the dock. In support of that they highlighted that the home page of their website stated "The new JB7 works with regular iPods like the Classic, Nano and Shuffle. It doesn't work with more sophisticated Apple gadgets like the iPod Touch, the iPhone or iPad and it won't work with iPods formatted on a Mac - sorry". They stated that if an MP3 Player was a USB mass storage device and was formatted with FAT32 it would be compatible with the JB7. They also highlighted that a caption belonging to the main picture of the product on their home page stated "Photo shows the 2012 Brennan JB7 with a Pure Digital iPod dock - you can just use the iPod USB cable - you don't need a dock but it looks nice".
They also said they had consulted with their telephone sales team to find out if they had received any reports of customers being confused about the issues raised in the complaint. They discovered that one customer had returned the product because of compatibility issues, but that they had confused an iPhone with an iPod.
Clearcast said the TV ad centred around the product and how it functioned. They highlighted that the docking station which appeared in the ad wasn't required for the product to work properly, and was included for aesthetic reasons to enable the music system and the iPod used in the shot to appear side by side. They pointed out that the ad also showcased speakers, and an iPod, both of which were compatible with the product, but did not state that any of these items were included in the sound system. They also said the ad did not quote a price whereby the non-inclusion of the docking station would be misleading. They again explained that the ad clearly referenced the Brennan website and encouraged individuals to visit it for more information about the product.
Clearcast said when approving the ad they had asked 3GA to direct potential customers to their website to check whether their MP3 player was compatible with the product, and also requested that they include an alert about any products that were not compatible with the JB7 on the home page.
Assessment
1. Not upheld
The ASA noted that in most of the shots used in the ad the product was featured in isolation. We also acknowledged Clearcast's comments that in some scenes other items that were compatible with the product, but were not included when an individual purchased it, such as speakers, were shown. We understood, however, that when the speakers appeared on screen, qualifying text stated "Connect to hi-fi or available with speakers". Similarly, we considered that, although an iPod was featured in the ad, the voice-over stated, "... it seamlessly links to your iPod ..." . We therefore considered that most consumers would understand that 3GA did not manufacture those products, and that they were not provided as part of the JB7. In comparison we noted that the docking station featured in the ad was not visibly branded. We considered, however, that it was only shown in one shot of the ad and this enabled the iPod to stand upright during the scene. As the scene was brief in relation to the ad as a whole, and because for the remainder of the ad the product was shown as it was sold, we concluded that the ad was not misleading.
On that point we investigated the ad under BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
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
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification), but did not find it in breach.
2. Upheld
We understood that the main image of the product showed the JB7 attached to a docking station with an iPod installed in it. We noted that the headline text stated "Introducing the world's very first super-dock" and text in the body of the ad referred to the product as a "docking station". We understood that traditionally docking stations for MP3 players were units that MP3 players could be placed into, that often had inbuilt speakers, and allowed music to be played directly from the MP3 player. We therefore considered that when viewed in conjunction with the text stating "Super-dock" and "docking station", consumers could misinterpret the image to mean that the JB7 came with the dock featured in the image. We therefore concluded that the ad was misleading.
On that point, the ad breached CAP Code (Edition) 12 rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
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) and
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.
(Qualification).
3. Upheld
We understood that the JB7 was compatible with the iPod Classic, the iPod Nano and the iPod Shuffle and would work with most basic MP3 players that were USB mass storage devices. We noted, however, none of those MP3 players would be compatible with the product if they had been formatted on an Apple Mac, and that the JB7 would not work with more advanced MP3 players such as the iPod Touch, or very similar Apple products, such as iPhones and iPads that also functioned as MP3 Players.
We noted that the voice-over for ad (a) stated, "And now it seamlessly links to your iPod or MP3 player so you can download and listen to your digital music too". Whilst we understood that just after the voice-over, text appeared which stated "Check with website for compatibility", we considered that that claim was not sufficient to counter-balance the misleading nature of the initial claim.
Similarly, we noted that text in ad (b) highlighting the key features of the product stated "Seamlessly link to your iPod or MP3 Player". Whilst we recognised that text at the bottom of the ad stated "The 2012 JB7 will link with a number of MP3 devices including the iPod Classic. For the complete list visit www.brennan.co.uk", we noted that it was not linked to the initial claim, and that consumers could fail to read that disclaimer before seeking more information regarding the product from 3GA's website. We also considered that that disclaimer did not sufficiently explain that the product would not work with all iPods or MP3 players.
We considered that both ads could encourage consumers to seek further information about the product because they mistakenly believed that it would be compatible with their specific MP3 player and therefore concluded that they were misleading.
On that point, ad (a) breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
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
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
On that point, ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
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) and
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.
(Qualification).
Action
The ads must not appear again in their current form. We told 3GA to ensure that, in future advertising, they clearly communicated that the dock did not come with the product. We also told them to ensure they did not make an absolute claim regarding the compatibility of the product with MP3 Players.
