Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
An ad for a proposed wind farm, at www.den-brook.co.uk, stated "ABOUT THE PROJECT ... The nine turbine wind farm, situated between North Tawton and Bow, will be capable of generating up to 18 megawatts of renewable electricity. This is sufficient to meet the annual average needs of approximately 9,425 homes; which, for comparison, is around 40 per cent of all the homes in West Devon".
Issue
Taw Turbine Action Group challenged whether the following claims were misleading and could be substantiated:
1. "The nine turbine wind farm ... will be capable of generating up to 18 megawatts [MW] of renewable electricity; and
2. "This is sufficient to meet the annual average needs of approximately 9,425 homes; which, for comparison, is around 40 per cent of all the homes in West Devon".
Response
1. RES UK & Ireland Ltd said the planning permission granted by West Devon District Council allowed them to erect nine turbines, each measuring 120 m in height. They said that within that permitted height range there were a number of different turbine models available, and they had not yet made a decision as to which model would be used. However, whichever model was chosen, its capacity would be no less than 2 MW (the 'installed capacity'). The claim was therefore based on each turbine having an installed capacity of 2 MW, giving a maximum total installed capacity for the nine turbines of 18 MW. They said they did not intend the claim to relate to operational output or for it to be taken to suggest that the wind farm would operate at 18 MW for the majority of the time; no energy-generating technology was capable of operating at installed capacity 100% of the time. They had therefore qualified the claim to state that the wind farm would be "capable of" generating "up to" 18 MW of renewable electricity. They considered the use of those terms meant it was unlikely that any website users would interpret the claim to mean anything other than 'able to generate a maximum of 18 MW'. They considered the claim was factually accurate but offered to amend it if the ASA considered it was problematic.
2. RES said they had calculated that the wind farm would meet the annual energy needs of approximately 9,425 homes based on the installed capacity of 18 MW, a 'capacity factor' of 25.5%, and an annual household energy consumption figure of 4,266 kWh (kilowatt hours). They considered the figure was suitably qualified, because the claim stated that the energy produced by the wind farm would be sufficient to meet the annual "average needs of approximately" 9,425 homes. They had calculated that that number of homes was around 40% of all the homes in West Devon based on data from the 2011 Census, which showed a total of 22,725 households in the West Devon local authority area.
RES said the capacity factor used in the calculation was derived from detailed wind speed measurements they had taken on-site using a meteorological mast. Those measurements took into account a number of different considerations including, but not limited to, turbine height, prevailing wind direction, and seasonal wind speed variations. They provided a copy of their summary report regarding energy yield at the wind farm, dated 2011.
RES said the annual household energy consumption figure used in the calculation was the figure for 2011 published by the Department of Energy and Climate Change (DECC). This was the most recent figure available when RES had last updated the ad. They said they were now aware that the DECC had published a revised figure, for 2012, which was 4,229 kWh. Using that updated figure, the wind farm would supply the equivalent of 9,507 homes.
RES understood the complainant was concerned that, because the claim referenced specifically that 9,425 homes was equivalent to around 40% of homes in West Devon, it implied that the calculation had been made on the basis of the average amount of electricity consumed by households in West Devon. RES disputed that interpretation. They said that whilst it was feasible to use regional variants of average household energy consumption figures, in practice the application of regional statistics rather than a consistent overall UK figure could lead to confusion. They said they had a number of onshore wind farm sites in development at any one time, and consumers used their websites to compare aspects of their projects, including their likely output. Using regional average energy consumption figures would mean that sites which had the same capacity, but which were in different regions, could have widely differing household equivalent figures. This could prove confusing to a lay person. They believed that using the UK household energy consumption figure meant their ‘homes equivalent’ figures were consistent and transparent over time and over their entire portfolio. They said, however, that they were willing to make amendments to the claim.
Assessment
1. Upheld
The ASA acknowledged RES' willingness to make amendments to their advertising claims. We noted that the claim that the wind farm would be “capable of generating up to 18 megawatts” of electricity reflected the proposed ‘installed capacity’ (the maximum possible output if all turbines operated at full capacity all of the time). However, we understood that it was not possible for a wind farm to operate at the installed capacity all the time. We also understood that a ‘capacity factor’ was a more accurate reflection of the likely operational output of a wind farm. We noted that data provided by RES showed that the capacity factor for the wind farm was in fact 25.5%. We therefore considered it was misleading to make a claim about the amount of electricity the wind farm was capable of producing based on its maximum possible output, even when qualified by the phrase "up to". We concluded the ad breached the Code.
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.
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) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
2. Upheld
We considered the report regarding energy yield at the wind farm supported RES' calculation of a capacity factor for the wind farm of 25.5%. We also considered RES' use of data from the most recent census, in 2011, was appropriate.
We considered it was generally acceptable for wind farm advertisers to use the DECC's UK annual household energy consumption figures in their calculations when making claims about the number of households whose energy needs could be met by a wind farm's output, and, whilst we noted that the claim in the ad was not based on the DECC's most recently published figure (for 2012), we noted that using this lower 2012 figure would result in a slightly higher final figure for the number of households whose energy needs could be met; we considered the use of the 2011 figure would therefore be acceptable because it would result in a slight underestimate.
However, notwithstanding the above, in this instance we considered that, because the claim specifically referenced the number and percentage of households in West Devon whose energy needs could be met by the wind farm, the claim was put into the specific context of energy consumption in West Devon and consumers would therefore understand the claim to be based on energy consumption in West Devon.
Whilst we acknowledged that the claimed figures had been accurately calculated based on UK household energy consumption, we considered that because consumers would understand the claim related to energy consumption in West Devon specifically, and we understood energy consumption in West Devon was higher than the UK average, the figures overestimated the number and percentage of households in West Devon whose energy needs could be met by the wind farm's output. In the absence of information which made immediately clear that the figures were based on UK annual household energy consumption data rather than energy consumption data for West Devon, we concluded the claim was likely to mislead.
The ad 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),
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
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
Action
The ad must not appear again in its current form. We told RES UK & Ireland Ltd to ensure that if they wanted to make a claim based on installed capacity it should be clearly qualified by what level of power generation would typically be achieved, and to ensure they made clear the basis on which their claims were made.
