Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and the other was Not upheld.
Ad description
A two-page national press ad for Tesco:
The first page stated "What burgers have taught us". The second page stated "The problem we've had with some of our meat lately is about more than burgers and bolognese. It's about some of the ways we get meat to your dinner table. It's about the whole food industry. And it has made us realise, we really do need to make it better. We've been working on it, but we need to keep going, go further, move quicker. We know that our supply chain is too complicated. So we're making it simpler ... Seriously. This is it. We are changing".
Issue
Two complainants, one an independent butcher, challenged whether the claim "It's about the whole food industry":
1. was misleading because they believed it implied there were issues with meat standards across the whole food industry; and
2. it unfairly denigrated food suppliers who had not been implicated in the supply of mislabelled meat products.
Response
1. Tesco Stores Ltd (Tesco) said the ad was published to show it was taking the horse meat issue seriously and to demonstrate it was listening to customers. They said they were proactive in issuing the communication to the public, which showed their commitment to customers to make the supply chain shorter, less complex and more transparent.
Tesco said that at the time the ad appeared, the media were naming on a daily basis, specific operators who had been directly implicated in the selling of horsemeat and there had been no suggestion from the media, Government, the Food Standards Agency or anyone else that all those in the food industry were likely to be associated with the scandal.
Tesco said they accepted that not everyone in the food industry had been implicated in the selling of horse meat. They said the ad focused solely on Tesco and this is how the average consumer would interpret it, which was reinforced by wording such as "The problem we've had", "our meat" and "the ways we get meat to your dinner table". They said there was no reference to any other producer, retailer or supplier and they had not attempted to shift or share the blame for the issues that Tesco faced. They said the use of the word 'about' rather than 'involves' or 'implicates' emphasised the problem related to the food industry in general and had not pointed the finger at other specific operators. They said the text that followed the claim focused exclusively on the more general supply chain and food industry issues. Furthermore, they said the claim acknowledged that Tesco had not operated in a vacuum and the meat contamination problem they and others had encountered was due to systemic failings in the food supply chain which had serious consequences for Tesco.
Tesco said if the problem was one of cross-contamination then any retailer or butcher was at risk of selling contaminated meat unless they sold only one species of meat which was highly unlikely. Tesco said almost every retailer and institution was being investigated for contamination and this included, for example, supermarkets, schools, hospitals, prisons and some retailers. They said each time testing was rolled out into another sector, further contamination was found and until testing had been completed, nobody would know whether there was contamination, including at independent butchers. They added that it was impossible to say there had been no contamination in that sector. They also said that a report said horse meat had been sold as beef on a market stall by Lancashire County Council.
Tesco submitted an opinion from an expert who provided analytical and advisory support to major retailers. The expert said the problem alluded to in the ad could and did affect the whole food industry, and was not limited to one particular sector. They said their opinion was supported by the views and action of the European Commission and legislation would apply to the whole European food industry. Their expert said although small businesses sourced locally, which mitigated long and complex food chains, they did suffer as they did not have the resources to test and audit suppliers. He said small retailers, such as butchers, bought in ready-made products, which increased the complexity of the food chain and exposed them to the same threats as other retailers.
2. Tesco said they did not accept that the ad unfairly denigrated food suppliers who had not been implicated in the supply of mislabelled meat products because the ad would be understood to refer to Tesco only, because it had not referenced other marketers and so could not be denigratory to the whole food industry. Tesco reiterated that consumers would understand that the ad referenced the serious consequences for Tesco, not for other retailers.
Assessment
1. Upheld
The ASA noted Tesco's assertion that the ad would have been interpreted as a reference solely to their own contamination issues. We considered that despite the use of words such as "we" and "our" in the preceding sentences, the ad made a definitive statement, "It's about the whole food industry". We considered that the omission of "we" or "our" from that sentence made it stand out from the surrounding text and informed readers' understanding of the rest of the ad. Therefore, we concluded consumers would understand the ad referenced all food retailers and suppliers, rather than Tesco alone.
We noted Tesco's expert's assertion that new legislation would cover the whole food industry, and that the problem was not isolated in only one sector, but we did not consider this apportioned blame across all producers and retailers. At the time the ad appeared, investigations into food contamination at many retailers and producers had not been concluded and the fact that investigations had begun did not mean those companies were involved in the selling or production of contaminated products. We understood that while some products had been sold, contaminated with meat not shown on the label, this was not widespread as only a small number of products had tested positive for horse meat and others had tested negative.
Because the ad implied that all retailers and suppliers were likely to have sold products contaminated with horse meat, and because relatively few instances of contamination had been identified at the time the ad appeared, we concluded the ad was misleading.
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. (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. Not upheld
We noted Tesco's assertion that the ad had not referenced other marketers. We also considered that in an industry with numerous businesses, no one marketer or product could be identified. Because another product or marketer was not named, we concluded the ad was not denigratory.
On this point we investigated the ad under CAP Code (Edition 12) rule 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Imitation and denigration) but did not find it in breach.
Action
The ad must not appear again in its current form.
