Background
Summary of Council decision:
Three issues were investigated, all of which were Not upheld.
Ad description
A website for Smart Cells stem cell storage:
a. Text on the home page of the website www.smartcells.com stated "First private UK company to release stored stem cells for use in transplants".
b. A web page headed "Frequently Asked Questions" included text which stated "How long have we been operating? Smart Cells was founded in 2000 and has been collecting samples ever since".
c. A web page headed "An International Company" included text which stated "Smart Cells International has stored umbilical cord blood samples for clients around the world. We have collected samples from over 70 countries and have offices in Europe, Africa, Middle East, Asia and the Far East".
Issue
Precious Cells International Ltd challenged whether:
1. the claim "First private UK company to release stored stem cells for use in transplants" in ad (a) was misleading, because they believed the stem cells in question had been processed and released by another stem cell bank on behalf of Smart Cells;
2. the claim "Smart Cells was founded in 2000 and has been collecting samples ever since" in ad (b) was misleading, because they believed that until 2009 Smart Cells had used third-party labs; and
3. the claim "We have collected samples from over 70 countries" in ad (c) could be substantiated.
Response
1. & 2. Smart Cells International Ltd said they had been incorporated as a company in 2000 and that up until January 2009 they outsourced the processing and storage of cord blood stem cells which they collected to labs which offered that service. They said that at all times their customers dealt with Smart Cells and not with any laboratory providing the storage facility. They said that in January 2009 they opened their own storage facility. They said that samples stored with third-party labs would only be released with the permission of Smart Cells.
3. Smart Cells said the claim was accurate and supplied a list of over 70 countries they had collected from during the time they had been in operation. They provided customers details in relation to a sample of countries.
Assessment
1. Not upheld
The complainant had challenged the clam "First private UK company to release stored stem cells for use in transplants" on the basis that the stem cells in question had been processed and released by another stem cell bank on behalf of Smart Cells. The ASA understood that until 2009 Smart Cells used third-party labs for the processing and storage of stem cells. However, we did not consider that would affect the average consumer's view of the claim, particularly because customers at the time would have dealt with Smart Cells only, and not any third party. We therefore concluded the claim was not misleading on that basis.
On this point we investigated ad (a) under 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
3.7
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), but did not find it in breach.
2. Not upheld
We acknowledged that Smart Cells had been founded in 2000 and that they collected samples from then until the present. We understood that until 2009 they had used third-party labs for processing and storage of those samples. However, we did not consider that contradicted the claim "Smart Cells was founded in 2000 and has been collecting samples ever since" or was material information that needed to be included in the ad. We therefore concluded the claim was not misleading.
On this point we investigated ad (b) under 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
3.7
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), but did not find it in breach.
3. Not upheld
We selected a number of countries at random from the list of countries provided by Smart Cells and asked to see customer details, which they subsequently provided. We therefore concluded that the evidence supplied demonstrated that Smart Cells had collected samples from over 70 countries and that the claim had been substantiated.
On this point we investigated ad (c) under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. 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), but did not find it in breach.
Action
No further action necessary.
