Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
The website www.alcohoot.co.uk had an ad for an alcohol breathalyser. Under the link titled "THE DEVICE" the website stated "Introducing the world's first smartphone breathalyzer … POLICE-GRADE ACCURACY … Alcohoot is based on fuel cell technology, which is the same technology used by professional police breathalyzers".
Issue
AlcoSense challenged whether the following claims were misleading and could be substantiated:
1. "the world's first smartphone breathalyzer"; and
2. "police-grade accuracy".
Response
1. Alcohoot LLC said that in January 2012 they posted a video online which described their proposed breathalyser product and, after a review of current technology and the market, they had concluded that no other smartphone breathalyser existed on the market anywhere in the world. They said the timing of the video was evidence that the Alcohoot breathalyser was the world's first.
2. Alcohoot said their breathalyser went through rigorous testing on two separate occasions to ensure it met the regulatory standards of the USA and other countries such as the UK. However, they said the product had not been submitted for UK certification because there was no requirement to do so. They said, along with the product testing, they had spoken to a number of police departments in the USA and provided a letter of intent to the ASA from a USA Marshal's office and that showed that they had requested to use Alcohoot as a screening device while on duty. They also supplied a link to an online video which they said demonstrated the comparison between their breathalyser and a police officer's device.
Assessment
1. Upheld
The ASA considered that consumers were likely to infer from the claim "the world's first …" that no other smartphone breathalyser existed prior to the sale of Alcohoot. We did not consider the online video was sufficient to support the claim, the evidence for which we considered should have covered the global marketplace prior to January 2012. Because adequate substantiation was not provided, we concluded the claim was misleading.
On this 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).
2. Upheld
We noted the Alcohoot device had not been subject to independent testing and we had not seen relevant evidence to support the claim "police-grade accuracy" which we considered would be interpreted to mean the device was of an appropriate standard to be used by UK police departments. The letter supplied stated that "we will use your devices as a screener … and make an informed decision as to whether or not we need to bring the person back to the station to conduct further tests", which therefore appeared to be an initial interest in using Alcohoot, rather than a formal contract. We considered the letter implied that the device might be considered suitable only for initial testing rather than a product that would provide accurate results. We did not consider the letter would be understood as confirmed use of the device.
Because Alcohoot had not provided evidence that their device was of "police-grade accuracy", we concluded the claim was misleading.
On this 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 ad must not appear again in its current form. We told Alcohoot LLC not to make claims in the absence of relevant documentary evidence.
