Three trade magazine ads for a brand of contact lenses:
a. This ad stated "Over 100 experts working for more than a decade around the world ... to break through the comfort barrier ... to achieve the unachievable. The world's first gradient contact lens".
b. The second ad stated "The right amount of water. Right where you need it. Dailies Total1® contact lenses, the first water gradient contact lens, featuring an increase from 33% to over 80% water content from core to surface. Offering the highest oxygen transmissibility (Dk/t of 156 @ -3.00D) and exceptional end of day comfort". Further text next to a pack shot of the product stated, "Comfort redefined". The ad also featured a graphic representing a cross section of the contact lens indicating the water content values of each stratum of the lens.
c. The third ad stated "A new era of contact lenses for a new era in comfort. Dailies Total1® One-day contact lenses". Further text next to a pack shot of the product stated, "Comfort redefined".
Johnson & Johnson Medical Ltd challenged whether the ads misleadingly implied that Dailies Total1® contact lenses were more comfortable than any other brand of daily disposable contact lenses.
Alcon Eye Care UK Ltd (Alcon) said that the product referred to in the ads was their "Dailies Total1 contact lenses", which they said were unique in that unlike all other contact lenses, which were characterised by a uniform structure and water content throughout the lenses, Dailies Total1 were made with a water gradient that transitioned from a water content of 33% at the core to over 80% at the surface of the lens. They said that the water gradient structure was the first of its kind in a contact lens and that it contributed towards many aspects of a wearer's experience, including the lens' high oxygen transmissibility and comfort.
Alcon also said that they had obtained patent protection for that technology, the application for which went through a rigorous two-year evaluation process before being granted.
Alcon said that other contact lenses provided comfort through the addition of lubrication agents and/or surface coating. In contrast, Dailies Total1 was made of a material that mimics the makeup of the eye. That feature was the basis of the comfort claims in the ads.
Alcon did not believe that the ads had made comparative claims. They pointed out that the ads appeared in a specialist trade journal, aimed at highly qualified eye care professionals and trained opticians. Those readers would instantly recognise the wider context of the claims in the history of contact lens development. Despite considering that they had not made any comparative claims Alcon said they held substantiation for the claims in the form of scientific trials.
In relation to ad (a), they said the ad was clearly aimed at promoting "The world's first water gradient contact lens". The fact that that technology had benefits, including improved comfort, was noted by the claim "break through the comfort barrier". They said that was not a literal superiority claim, as was made clear by the oxymoronic phrase, "achieve the unachievable".
They said the claim "Exceptional end-of-day comfort" in ad (b) was not a comparative claim either, but supported the assertion that the new technology contributed to end-of-day comfort, which was made clear because the claim was preceded by an explanation of the technology used in the lens.
They said the claim "Comfort redefined" would be understood by readers as an advertising slogan derived from the technological innovations described in the ads. Alcon felt that the technology that underpinned the product was sufficient substantiation for the claim "comfort redefined".
In relation to ad (c), "A new era in contact lenses for a new era in comfort" was similar to the "comfort redefined" claim and would be understood as a marketing claim based on the new technology.
The ASA noted that the ads appeared in Optician, a weekly journal aimed at eye care professionals. We considered that the target audience of the ads would therefore have some existing understanding of contact lens technology and recent developments in related technology.
Ad (a) stated, "Over 100 experts working for more than a decade around the world … to break through the comfort barrier … to achieve the unachievable". We considered that readers of the magazine would understand the claim "break through the comfort barrier" as a reference to the claim "The world's first water gradient contact lens", which also featured in the ad. We considered that readers would infer that the novel technology played a role in the comfortableness of the new lenses but would not infer that the product was more comfortable than every other brand of contact lenses in this area. We considered the claim "to achieve the unachievable" would be understood as puffery rather than as an objective claim.
Ad (b) was headed "The right amount of water. Right where you need it". Further text in the main body of the ad outlined the water gradient technology of the new lenses and included the claim "exceptional end-of-day comfort". We considered this claim to be objective only in the sense that the new technology discussed in the ad played a role in the comfortableness of the new lenses. We did not consider that the claim implied outright superiority in this area.
Ad (c) stated "A new era in contact lenses for a new era in comfort". We considered that this claim would be understood by the readers of the journal as relating to the comfortableness of the product, but not one that the product was more comfortable that every other brand of contact lens.
All three of the ads included the phrase "Comfort redefined", which was presented next to a pack shot of the product. We considered that readers would understand this claim as puffery and would not expect it to be based on objective evidence demonstrating that the product was more comfortable than every other brand of contact lens on the market.
For these reasons we concluded that the ads were not misleading.
We investigated ads (a), (b) and (c) under CAP Code (Edition 12) 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) and 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other comparisons) but did not find them in breach.
No further action necessary.