Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Claims in a product listing for the perfume "Ruthvah" on a sorcery and accessories website, www.sorcerers-apprentice.co.uk, stated "Ruthvah! Ancient Sexual Compellant. THIS LEGENDARY AND INFAMOUS PERFUME FOR MEN IS ONLY FOR THE DISCERNING ... Apart from its obvious advantages with the opposite sex Ruthvah is said to also give you an edge in business and commerce ... Recently science has tried to reproduce the effect attributed to Ruthvah. Effects that have reputedly been used by those in the know for hundreds of years. The 'new' discovery is Pheromones. Pheromones combine to produce a powerful natural scent which scientists say reaches to the mammalian centres of the female's brain compelling her to notice your readiness for an encounter and fixing her own response so that she is subconsciously drawn to the mating game ... Whether synthetic pheromone is better than the natural stuff we cannot say but we are the only firm able to offer Genuine S.A. Ruthvah fragrance which many thousands of discerning users have tried and tested over 35 years ...".
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1. "Apart from its obvious advantages with the opposite sex Ruthvah is said to also give you an edge in business and commerce";
2. "Pheromones combine to produce a powerful natural scent which scientists say reaches to the mammalian centres of the female's brain compelling her to notice your readiness for an encounter and fixing her own response so that she is subconsciously drawn to the mating game"; and
3. "Ruthvah fragrance which many thousands of discerning users have tried and tested over 35 years".
Response
1., 2. & 3. Sorcerers Apprentice Ltd provided comments to the ASA, but instructed that those should not be treated as a formal response to the complaint. They supplied copies of two press ads promoting their company's products, including Ruthvah, that they stated dated from 1981 and 1984. They also provided a copy of a customer invoice dating from 1978 that listed Ruthvah as one of the items purchased and a link to an internet forum in which nine users discussed their experiences of Ruthvah. They insisted that they were in possession of detailed records proving continuous sale of the product over 35 years, but said they could not access them in the time available.
Assessment
1. Upheld
The ASA acknowledged that many consumers visiting the website of an esoteric supplies company were likely to recognise the belief system associated with magic and the occult, and would understand that its origins were primarily rooted in tradition and folklore. However, we considered that the description of Ruthvah went beyond an account of its origins in legend and instead emphasised its real-world application and efficacy. We considered that consumers would be likely to understand the claim "Apart from its obvious advantages with the opposite sex Ruthvah is said to also give you an edge in business and commerce" to be an objective account of the product's efficacy. In the absence of documentary evidence such as trial data demonstrating that the use of Ruthvah was advantageous in dealing with the opposite sex and in business and commerce, we concluded that the claim was misleading.
On that point, the claim breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. 3.2 3.2 Obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (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).
2. Upheld
We understood that the notion that pheromones could play a role in human behavioural responses such as sexual attraction was generally accepted within the scientific community. However, we considered that the claim "Pheromones combine to produce a powerful natural scent which scientists say reaches to the mammalian centres of the female's brain compelling her to notice your readiness for an encounter and fixing her own response so that she is subconsciously drawn to the mating game" expressed that notion in much more definitive terms. We noted that the claim was phrased as reporting scientists' own words, but considered that consumers would understand those to be based on the findings of scientific research and therefore that the claim should be supported with robust documentary evidence.
Further, although we acknowledged that the text did not directly equate Ruthvah with pheromones, we considered that the reference to the efficacy of the latter, in the context in which it appeared, created an association between the two which was likely to imply that Ruthvah was equally as efficacious as pheromones in encouraging sexual attraction. We therefore considered that Sorcerers Apprentice needed to substantiate the claim through documentary evidence such as trial data that demonstrated the efficacy of both pheromones and Ruthvah. In the absence of such evidence, we concluded that the claim was misleading.
On that point, the claim breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. 3.2 3.2 Obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (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).
3. Upheld
We considered that the claim "Ruthvah fragrance which many thousands of discerning users have tried and tested over 35 years" would be interpreted by consumers as an objective statement that large numbers of people had used Ruthvah over a period spanning 35 years. The CAP Code required marketers to hold documentary evidence to prove claims likely to be regarded as objective and capable of objective substantiation. We acknowledged the copies of press ads submitted by Sorcerers Apprentice, but noted that those did not demonstrate usage of Ruthvah. We understood from the invoice supplied that the company had sold Ruthvah for 35 years before the complaint to the ASA, but noted that it did not constitute evidence that large numbers of people had tried the product over the intervening period. Although we also noted that some of the nine forum users appeared to have tried Ruthvah, we did not consider their reported experiences to constitute sufficient evidence for the claim. We therefore concluded that the claim had not been adequately substantiated and was misleading.
On that point, the claim 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).
Action
The claims must not appear again in their current form. We told Sorcerers Apprentice Ltd not to make efficacy claims or to claim that large numbers of people had tried their products over a specific timeframe unless they held documentary evidence to that effect.
