Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
If the basis of the comparison is stated, as in “widest range”, superlative claims are likely to be objective (Kenilworth Press, 5 May 2004). But merely stating it does not always make the basis of comparison obvious. In 1999, the ASA upheld a complaint against the claim “The UK’s Biggest PC Retailer” because the retailer did not sell the most PCs in the UK (Time Computers, October 1999). The advertiser’s defence was that it had more stores than its competitors. The ASA considered that irrelevant because readers were unlikely to interpret the claim in that way. Similarly, in 2005 the ASA considered that a low-cost airline’s claim to be the “largest” could be judged on several criteria and asked the advertiser to qualify the basis of the claim (easyJet Airline Co Ltd, 29 June 2005).
Examples of superlative claims being judged to be subjective despite the basis of the claim having been stated include “the most enjoyable car buying experience you’ll ever have!” (Stoneacre Motor Group car dealers, 11 September 2002), “Top quality narrowboats” (Reading Marine, 13 April 2005), “first class service” (Cresta Holidays Ltd, 25 August 2004) and “friendliest nursery”.
“Biggest”, “best-selling”, “leading” and other, similar claims are generally treated as objective claims that require evidence of highest sales or highest market share (American International Group, 6 April 2005; Kevin Nash Group plc, 27 October 2004; Howard Jackson, 21 July 2004; Emap Automotive Ltd, 23 July 2003, and Kinsbourne Cars, 7 May 2003). Depending on the context of the claim and on readers’ likely interpretation of the claim, the ASA might be satisfied with a sterling (£) justification or a unit, volume or weight justification for the claim; if the intended sterling basis or unit basis of the claim is unclear to the addressed audience, marketers should hold evidence of both or the ad should explain the intended basis. The evidence needs to relate to the subject of the claim and to a long enough period (usually a year) to constitute a genuine sales advantage and not reflect merely a brief surge in sales. In 1997, the ASA rejected turnover figures for one advertiser because they included all products, not merely the product that was the subject of the claim, and, in 1999, the ASA rejected audited retail market share figures that did not show a sustained advantage for the advertisers (Friskies Petcare (UK) Ltd, June 2000).
In the housing market, the ASA and CAP do not accept a count of “For Sale” boards as evidence of a market-leading position because not all vendors have a board outside their home (Blakes Estate Agents, May 1999).
If the basis of the claim is unstated, for example “Nowhere else makes you feel this good” and “Better Ingredients. Better Pizza”, and is unclear from the rest of the advertisement, the ASA is likely to regard the claim as the opinion of the advertiser (Clause 8.1). Marketers should take care, however, that some claims might be regarded as a matter of opinion but nevertheless require substantiation. In 2005, for example, the ASA upheld a complaint about the claim “the ultimate broadband experience”. Although it accepted the claim was the advertiser’s opinion, the ASA considered the incidence of severe customer dissatisfaction with the service was enough to make the claim misleading (Bulldog Communications Ltd, 2 March 2005).