Background
Summary of Council decision:
Two issues were investigated both of which were Upheld.
Ad description
A flyer for Guardian Solutions, a distributor of spare heating parts, marketing various boiler replacement fans. It included text that stated "GUARDIAN APPROVED SPARES 400-005: Replacement Fan Assembly for Baxi Solo 2 - 229421 ... Special Distributor Price Offer ...".
Issue
Baxi Heating UK Ltd, who manufactured the 'Baxi Solo 2' boiler, challenged whether:
1. the claims "APPROVED SPARES" and "Replacement Fan" were misleading and could be substantiated, because it suggested that the product was a suitable replacement that worked on their 'Baxi Solo 2' boiler, which they believed was not the case; and
2. the ad misleadingly implied that they had recommended the fan as a suitable replacement.
Response
1. Accuflow Distribution Ltd t/a Guardian Solutions referred to UK and EU legislation regarding the use of another company's trademark. They considered that they were entitled to use a manufacturer's product trademark so that consumers understood the functionality of the comparable parts that they sold. Furthermore, they believed that the comparison between the replacement fan and the original part for the Baxi Solo 2 boiler had met the conditions, as set out in the Misleading and Comparative Advertising Directive 2006, for it to be acceptable.
2. Guardian Solutions stated that the ad showed an equivalent fan that could be used as a replacement for the original part in the Baxi Solo 2 boiler. They stated that the replacement fan had been approved by them and not the manufacturer, which they believed was made clear in the claim "GUARDIAN Approved Spares". They further stated that the flyer was circulated to professional contractors, who understood that the products that they sold were not original parts.
Assessment
1. Upheld
The ASA considered that the claims "APPROVED SPARES" and "Replacement Fan" suggested that the product was a suitable replacement that worked on the Baxi Solo 2 boiler. We acknowledged that Guardian Solutions believed that under UK and EU legislation they were entitled to use a manufacturer's product trademark when informing consumers of the functionality of the comparable parts that they sold. However, we had not seen robust documentary evidence showing that the replacement fan shown in the ad was suitable for the Baxi Solo 2 boiler. Therefore, we concluded that the claims "APPROVED SPARES" and "Replacement Fan" had not been substantiated and were misleading.
The claims breached CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), 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. and 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).
2. Upheld
The ASA understood that Guardian Solutions distributed spare heating parts, which they recommended as suitable replacements for original parts, and believed that this was clearly communicated in the claim "GUARDIAN APPROVED SPARES". However, we noted that, the word "Guardian" appeared at the top of the ad as part of the company logo; the text it appeared in was smaller, in a different colour to, and at a different angle from, the text used for the claim "APPROVED SPARES". We considered that readers would regard the claim as one that the spares had been proved as suitable replacements by manufacturers, not that they had been approved by the advertiser that was selling them. We understood that this was not the case and concluded that the ad was misleading.
The ad breached 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).
Action
The ad must not appear again in its current form. We told Guardian Solutions that their advertising must not state or suggest that they sold replacement parts that had been approved by Baxi Heating UK, nor claim that they sold parts that were suitable for boilers manufactured by Baxi Heating UK unless they possessed robust documentary evidence.
