Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
The website for Extraglaze, www.extraglaze.co.uk, a supplier and installer of secondary glazing, seen during February 2018, featured headline text which stated, “DEVELOPED FOR LISTED BUILDINGS”. Text above a comparison grid stated, “Why Choose Extraglaze or Saverglaze…over other magnetic secondary glazing”. Under the headings “extraGLAZE”, “saverGLAZE” and “Other Makes” the grid compared system features of the product which included, “Scientifically proven in independent tests…Extra high bond adhesive…Frame magnets also match your windows… Maintenance free magnets…Branded Perspex”, with ticks or crosses according to whether or not the product had that feature.
Issue
Richard Cutts t/a Magneglaze challenged whether:
1. the claim “Developed for listed buildings” was misleading and could be substantiated;
2. the information presented in the comparison grid under “other makes” heading misleadingly implied that the features of Extraglaze’s products were unique to them and was not present in other manufacturers' systems; and
3. the claims regarding the product features were verifiable.
Response
1. Extraglaze Ltd said that they believed the wrong meaning was being applied to “developed” and that it was then being applied incorrectly. They said that all products were invented or designed and were then later developed – usually incrementally. Extraglaze said that they did not claim to have invented their product, developed a new product or the concept, but they did claim to have developed the product so that it was better suited to listed buildings. They said that they believed the dictionary definition of the word “developed” supported their use of the word, but not the ASA understanding of it. They said that the claim was being mistakenly substituted for “approved” for listed buildings and that they had adapted the product specifically for listed buildings.
2. Extraglaze said they understood that where they claimed that some aspect of their product was not available in other brands that they would have to provide evidence to support that claim. They said that the evidence was available, but was not in a presentable manner at the present time, which was why it was not attached to the ad. Extraglaze said that they had amended the comparison grid so that the crosses were changed to question marks under the “other makes” heading.
3. Extraglaze said that they did not identify who any of their competitors were on the website. They said that they encouraged their customers to get entirely full and accurate information by ordering free samples and by contacting them. They said that customer testimonials were posted on the website, which allowed them to check claims on the website for themselves. Extraglaze said that the content of their response was commercially sensitive and should not be disclosed.
Assessment
1.Upheld
The ASA considered that consumers would understand the claim “developed for listed buildings” to mean that when the product was being made, it was tested or adapted specifically for listed buildings, being made for the purpose of being used in listed buildings. We accepted that over time, a product could be further developed and improved to enhance it, or extend its usage beyond what it was originally designed for, but we considered that was different from the product being actually designed for a particular use. We had not been provided with any information as to the particular requirements of listed buildings or any evidence that the product had been specifically made and tested to meet those needs. We therefore concluded that the claim “developed for listed buildings” was misleading.
On that point the ad breached CAP Code rules
3.1
3.1
Marketing communications 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) 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 acknowledged that Extraglaze had not named other competitors in the comparison grid. However, we considered that all of their competitors were identified by implication. We understood that Saverglaze was also made by Extraglaze, but the “other makes” would refer to other companies who made similar glazing products. We had not seen any evidence that a comparison had been made with all the competitors in the market. While we acknowledged that Extraglaze had changed the comparison grid so that the “other makes” column featured question marks instead of crosses, we did not consider that the meaning or implication had changed, namely that only Extraglaze products had all the features listed.
Because we had not seen any evidence that Extraglaze had compared all their competitors in the target market, we considered that the claims in the comparison grid misleadingly implied the features of Extraglaze’s products were unique to them and were not present in systems made by other manufacturers.
On that point the ad breach CAP Code
3.1
3.1
Marketing communications 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
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons with identifiable competitors)
3. Upheld
The CAP Code required comparisons with identifiable competitors to be verifiable. That meant that an ad which featured a comparison with an identifiable competitor or competitors, needed to include sufficient information about the comparison in order to allow consumers to understand the comparison being made, or to signpost where they could access the information for themselves to check the claims were accurate.
We considered that the claims in the comparison grid were comparisons against identifiable competitors, which required that the comparison was verifiable and that requirement was not removed by the fact that the comparison was based on commercially sensitive data. We noted that nowhere in the ad was there information provided about the basis of the comparison, or a signpost about where consumers could access such information to check that the claims were accurate.
We therefore concluded that the ad had not allowed consumers or competitors to verify the comparison, and as such, the ad was in breach of the Code.
On that point, the ad breached CAP Code (Edition 12) rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors).
Action
The ad must not appear again in its current form. We told Extraglaze Ltd to ensure that in future when making comparisons with identifiable competitors the comparative claims were supported with adequate evidence. We also told Extraglaze Ltd to include information in the ad to allow consumers to verify the claims, or a signpost to where consumers could access that information.
