Background
Summary of Council decision:
Two isues were investigated, both of which were Upheld.
Ad description
An email for loft hatches stated "Recent advertisements in the trade press featured the Timloc Loft Access Door with a claim that it provided 'zero air leakage'. At Manthorpe we believed that this claim was incorrect since as part of the development of the new GL250 Loft Door we tested competitors' doors, including Timloc, and found that all were inferior to the Manthorpe door in terms of air leakage". Further text stated "The results of the testing undertaken at the Building Research Establishment stated that 'From all the access loft hatches tested the Manthorpe Building Products loft access hatch model GL250 was the only product to meet the BS 5250:2011 recommendation for a leakage rate of >1m3/h at a pressure rate of 2Pa’".
Issue
Timloc Building Products challenged whether:
1. the claim "as part of the development of the new GL250 Loft Door we tested competitors' doors, including Timloc, and found that all were inferior to the Manthorpe door in terms of air leakage" was misleading and could be substantiated; and
2. the claim "From all the access loft hatches tested the Manthorpe Buildings Products loft access hatch model GL250 was the only product to meet the BS 5250:2011 recommendation for a leakage rate of >1m3/h at a pressure rate of 2Pa" was misleading and could be substantiated.
Response
Manthorpe Building Products Ltd said they commissioned an independent testing house to test their product and their competitors' products. They provided a full copy of the test report, including details of how the air leakage measured during the test. They said the test demonstrated that their product was the only door to meet the BS 5250:2011 recommendation.
Assessment
1. Upheld
The ASA considered consumers would interpret the claim "as part of the development of the new GL250 Loft Door we tested competitors' doors, including Timloc, and found that all were inferior to the Manthorpe door in terms of air leakage" to mean that Manthorpe Building Products had tested their door against all of their competitors' doors and found their product was superior in terms of air leakage. We considered that impression was reinforced by the use of the word "all" when referring to their competitors in the claim. However, we understood the test only assessed three of their competitors' doors, which did not represent all of the competitors within the market, or the range of doors manufactured by each of the competitors they had identified. Therefore, we considered the evidence was not sufficient to substantiate the claim and we concluded 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),
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).
2. Upheld
We noted the ad made several references to "zero air leakage", before mentioning the "BS 5250:2011 recommendation". We considered consumers would interpret the claim "From all the access loft hatches tested the Manthorpe Buildings Products loft access hatch model GL250 was the only product to meet the BS 5250:2011 recommendation for a leakage rate of >1m3/h at a pressure rate of 2Pa" in the context of the "zero air leakage" claims and the claim challenged in point 1. Therefore, "… from all the access loft hatches tested" was likely to be interpreted to refer to all competitor doors on the market, not the three competitor doors that had been tested.
The test report stated that the BS 5250:2011 standard specified that "loft access hatches should be tested to BS EN 13141-1: 2044". However, it also noted that the test was "intended for testing devices with openings" and "was not intended for testing nominally sealed devices such as loft access hatches". It went on to state that the application of the standard had an impact on the "analysis of the results" because "the airflow through loft hatches … does not fit the equation for flow through an opening" and, therefore, only "the basic principles of the BS EN 13141-1:2004 test" would be applied to loft access hatches. While we acknowledged that the test report stated that, of the products tested, Manthorpe's door "was the only product to meet the BS 5250:2011 recommendation for a leakage rate of >1m3/h at a pressure differential of 2Pa", we considered consumers would not be aware that the test was not intended for loft access doors, as stated in the report. We also noted that report said that the requirements were only "best practice recommendations or guidance" and "not pass/fail criterion", which we considered contradicted the impression consumers were likely to get from the claim, especially in the absence of further details about the test. For those reasons, we considered the evidence was not sufficient to substantiate the claim and concluded 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),
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).
Action
The ad must not appear in its current form. We told Manthorpe Building Products Ltd to ensure that the basis of their claims was clear to consumers and that they held sufficient documentary evidence for claims made in their advertising, including those referencing identifiable competitors.
