Ad description
A regional press ad, and tweets on Twitter for cmRENT estate agents:
a. The press ad, in July 2011, featured pictures and details for properties available to rent. Text under the heading "Did you know?" stated "cmRENT have let 331* properties since 4 January 2011 ranging from studio flats to 6 bed homes, prices from £350 pcm to £2000 pcm!". Further text under the heading "Tenants" stated "We currently have over 35* properties available for rent, register now at [website] so you don't miss out!". Small print linked to the asterisk stated "*Figures correct as of 25/7/2011".
b. The Twitter feed contained the tweets "TOTAL TO RENT: cmRENT have 93 Rental properties available" sent on 21 July 2011 and "TOTAL TO RENT: cmRENT have 105 Rental properties available" sent on 28 July.
Issue
Frost Residential Lettings Ltd challenged whether:
1. the claim "cmRENT have let 331* properties since 4 January 2011" in ad (a) was misleading and could be substantiated; and
2. the claim "We currently have over 35* properties available for rent" in ad (a) and the claims "cmRENT have 93 Rental properties available" and "cmRENT have 105 Rental properties available" in ad (b) were misleading and could be substantiated.
Response
1. cmRENT provided a copy of their lettings schedule since January 2011 in support of the claim.
2. cmRENT explained that the number of properties available to rent in ad (a) was based on the number of properties available on their website, excluding those under referencing or under offer. They said there was a three-day delay between the figures being prepared and published in the paper, which was why they stated the date they were compiled in the ad. cmRENT said the ‘35’ figure could be substantiated by counting the number of properties in the ad that were not listed as being 'under referencing'.
cmRENT explained that the figure in ad (b) was again based on the number of properties on the website. They explained that their website automatically generated the Twitter feed, and that the figure included properties for all areas covered by both of their offices and properties that were under referencing and under offer. They said the figure would change on an hourly or daily basis as new properties were added, and that consumers would be able to click through from the tweet to their website to view those properties. cmRENT provided a copy of a list of rental properties taken from their back-up server at the end of each day.
Assessment
1. Upheld
The ASA noted that the address of the cmRENT Chelmsford office was stated in large print at the top of the ad, and that the Chelmsford office telephone and e-mail contact details were provided at the bottom of the ad, and we therefore considered that consumers would understand the claim "cmRENT have let 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. properties since 4 January 2011" to refer to properties let by the Chelmsford office. We noted from the lettings schedule provided that the figure of 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. properties related to lettings made by both cmRENT's Chelmsford and Braintree offices since January 2011, and that the number of properties let by the Chelmsford office only since that date was significantly less than the 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. properties claimed in the ad. Because we considered consumers would understand the claim to relate to the Chelmsford office only, when that was not the case, we concluded that the claim was misleading.
On this point, ad (a) breached CAP Code (Edition12) 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),
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
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
2. Upheld
For the reasons explained in point one above, we considered that consumers would understand the claim in the press ad (a) to refer to properties available to rent through the Chelmsford office only. We understood, however, that the figure of 35 properties stated in the ad referred to the total number of lettings available through cmRENT's Chelmsford and Braintree offices. We considered that, without any qualifying text that explained the basis for the number of available properties quoted in the ad, the claim in ad (a) was likely to mislead consumers.
We also understood that the number of available rental properties quoted in the Twitter feeds was the total for both the Chelmsford and Braintree offices. We noted that the Twitter feeds were sent from a generic cmRENT address and linked to the cmRENT website for both offices, and we considered that it would therefore be clear to consumers that the available rental figures referred to the total number of rental properties available across the cmRENT office network. However, we also noted that the claimed number of rental properties included properties that were under referencing or under offer, and were therefore not available to be viewed by consumers. We considered that, unless otherwise stated, consumers would expect the advertised number of rental properties quoted in the Twitter feeds to refer to the most up-to-date number of untaken or unreserved properties that were potentially obtainable by them. Because they did not we concluded that the claims in ad (b) were misleading.
On this point, ads (a) and (b) breached CAP Code (Edition12) 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),
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
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
Action
The ads must not appear again in their current form. We told cmRENT not to imply that lettings figures and the number of available rental properties related to one of their offices when that was not the case. We also told them to make clear if under referencing and under offer properties were included in the figures quoted.
