Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Two website ads, for products in ASDA’s ‘Little Angels’ nappy range, on www.asda.com, seen on 3 July 2015:
a. A web page for ASDA’s “Little Angels Comfort Dry” nappies included the claim “As absorbent as the leading brand”.
b. A web page for ASDA’s “Little Angels Supreme Protection” nappies included the claim “Our … most absorbent nappy ever”.
Procter & Gamble UK challenged whether the following claims were misleading and could be substantiated:
1. “As absorbent as the leading brand” in ad (a), which they believed was a comparison against Pampers nappies; and
2. “Our … most absorbent nappy ever” in ad (b).
3. The ASA challenged whether ad (a) breached the Code, because it did not contain a mechanism whereby visitors to the website could verify the comparison “As absorbent as the leading brand”.
1. ASDA Stores Ltd t/a ASDA said the claim “As absorbent as the leading brand” meant that Little Angels Comfort Dry (ASDA Comfort Dry) nappies had the ability to soak up and retain at least as much liquid as the leading nappy brand, which they had identified as Pampers Baby Dry.
ASDA explained that the absorbent core of nappies contained Super Absorbent Polymer (SAP) and fluff pulp. SAP, which was the key component for absorption, was contained in the core in powder form which, when it came into contact with liquid, absorbed and retained it by forming into a gel. They provided a statement from the manufacturer of the ASDA Comfort Dry nappies in which they stated that it was generally accepted in the industry that 1 g of SAP absorbed and retained between 25 g and 30 g of liquid.
ASDA said the manufacturer of the ASDA Comfort Dry nappies had identified during the manufacturing development stage that the best methodology to prove ‘absorbency’ was the Centrifuge Retention Capacity (CRC) test, because it delivered measurable, comparable and repeatable objective results. ASDA noted that there were other lab tests which tested nappy performance, but they considered that the CRC test was the most appropriate to support the claim and to deliver objective results. They provided a statement from the manufacturer in which they said that the CRC method was considered in the industry to be the superior method of testing absorbency; other methods would not deliver robust and reliable results. They said that was corroborated by an industry expert who provided a statement on ASDA’s behalf.
The CRC test involved the dry nappy being weighed, then soaked in a saline solution and then weighed again to calculate the amount of liquid absorbed by the nappy as a whole. The nappy was then spun in a centrifuge and weighed again to calculate the amount of liquid retained by the nappy. Because the SAP in the core of the nappy absorbed and retained liquid as a gel, even when under pressure, centrifugation removed all the remaining liquid in the nappy (i.e. in the parts which would in normal usage not be required to absorb liquid). ASDA said that the figure relating to the final amount of liquid retained in the nappy following centrifugation was therefore the relevant figure for measuring and comparing absorbency.
The CRC tests were carried out, between December 2014 and June 2015, by an accredited independent laboratory that was widely used in the hygiene products industry. The test was carried out on five samples, and an average absorbency figure was then calculated, for all but one of the seven sizes of nappy in the ASDA Comfort Dry and Pampers Baby Dry ranges. ASDA highlighted that the industry expert stated that a sample of five in the CRC test was a statistically sufficient sample to provide robust results. The manufacturer said that testing a greater number of samples would not impact the standard deviation of the test results and therefore would not result in more accurate results. The manufacturer further highlighted that the relevant international industry association EDANA, recommended in its Guidelines for the Testing of Baby Diapers that a minimum of five samples should be tested for technical tests, and that results should be reported with the average and standard deviation from those five samples. They provided a copy of the relevant page of the Guidelines.
For the most popular size of nappy, tests were carried out on a larger number of samples: the average retention figure for ASDA Comfort Dry Maxi size was calculated from tests on ten samples; and the average retention figure for Pampers Baby Dry Maxi size was calculated from tests on 15 samples. The industry expert considered that the difference in the number of tests undertaken on the different brands in relation to the Maxi size would not skew the results. ASDA said that the additional tests were undertaken because the Maxi size was the most popular size with consumers. These enabled the independent lab to: test the manufacturer’s manufacturing processes; ensure that the manufacturer’s standards were consistent; and ensure that the claim would reliably be substantiated.
ASDA said the results of the tests showed that ASDA Comfort Dry outperformed Pampers Baby Dry nappies in all size variations. They provided a copy of the test data and a summary description of the methodology used but asked that the details be kept confidential.
2. ASDA said the claim “Our … most absorbent nappy ever” meant that their Little Angels Supreme Protection (ASDA Supreme Protection) nappies would soak up and retain more liquid than their other own-brand nappies.
In addition to the tests on the ASDA Comfort Dry range carried out by the independent laboratory, the manufacturer had conducted in-house CRC tests of the ASDA Comfort Dry and ASDA Supreme Protection ranges between March and June 2015. These results showed that the ASDA Supreme Protection nappies had a higher average absorption in each size variation than the ASDA Comfort Dry nappies; a copy of those results was provided. They said the manufacturer conducted their tests on sets of six samples (rather than on sets of five samples as done by the independent lab). They explained that the manufacturer carried out a range of different tests on the nappies, and the methodologies of those tests required that they be carried out on either five or six samples; they therefore carried out all their tests on six samples in order that they meet or exceed the necessary sample size. ASDA highlighted that the manufacturer had stated that calculating an average from six rather than five samples did not have any impact on statistical significance. The manufacturer had carried out a large number of CRC tests on the ASDA Comfort Dry and ASDA Supreme Protection nappies between April and June 2015 in order to check their own internal processes and the consistency of their own manufacturing practices. The average retention figures they provided for the in-house tests on the ASDA Comfort Dry and ASDA Supreme Protection nappies were therefore variously calculated from the results of between 18 and 84 individual tests.
ASDA said that the manufacturer’s laboratory was inspected regularly to ensure that it met the necessary standards to manufacture and conduct testing of hygiene products; copies of a range of certificates from independent bodies were provided. They added that the manufacturer regularly conducted tests with the independent laboratory in order to evaluate the performance of their in-house laboratory. The manufacturer confirmed that the last such test was positive and demonstrated that there was no statistically significant difference between the results of a CRC text conducted in their laboratory compared with a CRC test conducted at the independent laboratory.
Following notification of the complaint, ASDA asked the independent laboratory to verify the tests conducted by the manufacturer on the ASDA Supreme Protection nappies. ASDA provided a copy of those test results, conducted in December 2015, and said that those results verified and supported the results of the in-house tests.
ASDA also provided information about the SAP content of each size of all the nappies in their current and past ranges, as well as a table which compared the SAP content of each range of nappy averaged from the SAP content of each size in the range. They said it demonstrated that ASDA Supreme Protection nappies as a range contained the highest levels of SAP ever included in ASDA’s own nappy ranges. As referenced above, they said it was generally accepted that 1 g of SAP would absorb between 25 g and 30 g of liquid, and therefore more SAP in a nappy’s core equated to a higher absorbency potential.
3. ASDA said the ad should have included the qualification “**proven to be as absorbent as the leading baby dry nappy in independent laboratory tests - 2015”. However, that statement had been omitted from the online product description due to an error by the third-party company that populated ASDA’s website. That company had acknowledged the error and it had been corrected. ASDA said they were reviewing the processes relating to the updating and checking of information on their website to prevent future similar occurrences. ASDA later further amended the qualification to include the text “For verification write to Asda LS11 5AD”.
The ASA considered consumers would understand claims about the absorbency of nappies to relate to the amount of liquid that would be absorbed and retained by the nappy in normal usage (i.e. taking into account factors such as the likelihood that in normal use a nappy would be wetted and dried more than once, the speed at which the nappy was able to absorb liquid, how the liquid would be distributed through the nappy, the pressure of the baby on the nappy, and the likelihood of leakage), rather than relating only to the total amount of liquid that could be absorbed by the nappy. In that context we considered consumers would interpret the claim “As absorbent as the leading brand” to mean that ASDA’s Comfort Dry nappies would absorb and retain as much liquid, in normal usage, as the best-selling branded nappy in the UK. While we acknowledged that the ad did not explicitly refer to Pampers nappies, we considered that consumers interested in purchasing nappies would be familiar with the sector and understand the leading brand to be Pampers, although they might not be aware that the best-selling Pampers-branded nappy was Pampers Baby Dry.
We reviewed the results of the tests, which were conducted at the independent laboratory. We understood there were seven size variations for ASDA Comfort Dry and Pampers Baby Dry nappies. For all but one size variation, five CRC tests were carried out on each product, and an average figure in grams was calculated for each size. We noted the comments from the manufacturer and industry expert in relation to the robustness of the methodology of calculating an average retention figure from five samples. However, we noted that the relevant reference in EDANA’s Guidance stated that five samples should be used when conducting the following types of technical test: absorption rate/time of penetration; absorption before leakage; determination of skin wetting; and evaluation of the closure/fastening system. The Guidance did not refer to the use of CRC tests. We nonetheless considered that calculating the retention figure from CRC tests on five samples was likely to be robust.
For the Maxi size variation, which ASDA said was the most popular nappy size, the average was taken from a larger number of tests, although a third more tests were conducted on the Pampers Baby Dry nappy than were conducted on the ASDA Comfort Dry nappy. The tests were conducted in four groups between December 2014 and July 2015. ASDA had said that the test dates were staggered because they were not able to source all of the Pampers Baby Dry nappies at the same time. However, they did not explain why the ASDA Comfort Dry nappies were not all tested at the same time. We considered it was unclear why the independent laboratory was not able to source all sizes of both nappies at the same time. We further understood it would have been best practice for all the tests to have been conducted at the same time and were concerned that the tests were instead spread out over eight months.
We further noted that the chronology of the tests on the Maxi size differed significantly from that of the other sizes. The Pampers Baby Dry Maxi size was first tested in the December 2014 group (along with three other Pampers Baby Dry sizes). The second group of tests, in May 2015, was conducted on all sizes of the ASDA Comfort Dry nappy except for the Maxi size. The ASDA Comfort Dry Maxi size was instead tested in June 2015, along with two sets of tests on the Pampers Baby Dry Maxi size. The final group of tests was conducted on the ASDA Comfort Dry Maxi size only, in July 2015. We considered it was not clear why the testing had been carried out in that way. We noted that, when the retention figures for the two brands were calculated from the results of all the tests, the ASDA Comfort Dry Maxi nappies retained only 0.4 g more liquid that the Pampers Baby Dry Maxi nappies, whereas the smallest difference in the results for the other sizes of nappies was 6.8 g. The standard deviation for the two sets of tests conducted on Pampers Baby Dry in the June group was significantly lower than the standard deviation for any of the other sets of tests. We considered it was unclear why that was the case. Furthermore, because the standard deviation for those tests was very low, we understood that if further tests had been conducted it was possible that the small margin by which the ASDA Comfort Dry nappies were found to retain more liquid would not be sustained.
We also reviewed the CRC testing procedure methodology which involved immersing the test nappy in saline liquid, letting excess liquid drip off, followed by centrifugation. We acknowledged that the CRC test measured the basic absorbency and retention capacity of nappies under those test conditions, and we noted ASDA’s view that the test was therefore sufficient to substantiate claims relating to the absorbency of nappies. However, as referenced above, we considered consumers would interpret claims relating to a nappy’s absorbency as relating to more than simply the amount of liquid a nappy could retain. We considered they would understand it to relate to the nappy’s ability to absorb liquid in normal usage. We therefore considered the CRC test alone was not sufficient to replicate a nappy’s ability to absorb and retain liquid under normal conditions, because it did not take into account factors such as rewetting, the speed at which the nappy was able to absorb liquid, and the likelihood of leakage. We understood that there were standard industry tests which measured those factors, some of which had been conducted by the independent laboratory on the ASDA Comfort Dry nappies.
Due to our concerns over the testing chronology and the data provided in relation to the Maxi sizes of the nappies, and because the CRC test alone did not sufficiently investigate factors which consumers would expect to be taken into account in relation to claims for nappy absorbency, we concluded the claim “As absorbent as the leading brand” had not been substantiated and was therefore misleading.
On this point, ad (a) breached 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 3.33 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).
As noted above, we considered consumers would understand claims about the absorbency of nappies to relate to the amount of liquid which would be absorbed and retained by the nappy in normal usage. In that context we considered consumers would interpret the claim “Our … most absorbent nappy ever” to mean that ASDA’s Supreme Protection nappies were more absorbent than any other ASDA-branded nappy they had ever sold.
We understood the claim was based on the results of tests conducted in the manufacturer’s in-house laboratory. We noted the information ASDA had provided to us in relation to the laboratory certifications, and the manufacturer’s assertion that that certification demonstrated there was no statistically significant difference between the results of a CRC test conducted in their laboratory compared with a CRC test conducted at the independent laboratory. The in-house laboratory conducted all its tests on sets of six samples as standard and we considered that calculating the retention figure from CRC tests on six samples was likely to be robust. Notwithstanding that, the total number of tests on which the average retention figure was calculated for each nappy and size was significantly higher, ranging between 18 and 84. We understood from the industry expert that undertaking different numbers of tests would not skew the results. We noted the tests had been carried out over a period of three months in 2015, but understood that this was due to the tests being carried out for the purpose of monitoring production. We accepted that the in-house CRC test results showed that, on average, each size of the ASDA Supreme Protection nappies could retain more liquid than the equivalent size of the ASDA Comfort Dry nappies. We acknowledged that the results from the independent laboratory’s CRC tests confirmed those from the in-house laboratory. However, as noted at Point 1, we considered that CRC tests alone were not sufficient to replicate a nappy’s ability to absorb and retain liquid under normal usage conditions.
ASDA had also provided details of the historical SAP content of the ASDA Supreme Protection and ASDA Comfort Dry nappies, as well as of their three other brands (Newborn, First Pants and Potty Training Pants). We noted that, when the SAP content of each size in each brand of nappies was averaged together, the ASDA Supreme Protection nappies had, as a brand, the highest average SAP content. However, we also noted that, because each gram of SAP had the potential to absorb between 25 g and 30 g of liquid, there was some crossover in the range of potential absorption between the ASDA Supreme Protection and the other brands. We noted that each size of the ASDA Supreme Protection nappies contained more SAP than the equivalent sizes of any of the past versions of the nappies, and more than the current version of the ASDA Comfort Dry nappy. However, the amount of SAP contained in the Midi size was the same as that in the Midi size of their Newborn nappies and the amount contained in the Maxi size was the same as that in their First Pants Maxi size. We understood it was therefore possible that those nappies had the potential to absorb as much liquid as the ASDA Supreme Protection nappies of the same size. We concluded the claim “Our … most absorbent nappy ever” therefore had not been substantiated. We further noted that information about the SAP content of a nappy addressed only the issue of a nappy’s potential total absorbency, rather than its ability to absorb and retain liquid in normal usage.
Because the evidence did not demonstrate that ASDA Supreme Protection nappies were ASDA’s most absorbent nappy “ever”, and because the CRC test alone did not sufficiently investigate factors which consumers would expect to be taken into account in relation to claims for nappy absorbency, we concluded the claim “Our … most absorbent nappy ever” had not been substantiated and was therefore misleading.
On this point, ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
To fulfil the verifiability requirements of the Code, an ad that featured a comparison with an identifiable competitor must include, or direct a consumer to, sufficient information to allow them to understand the comparison, and to be able either to check the claims were accurate themselves, or to ask someone suitably qualified to do so.
As stated in Point 1 above, while Pampers Baby Dry was not explicitly named in the ad, we considered consumers would readily identify the “leading brand” as being Pampers. However, we noted the ad did not include any further information about the comparison. We acknowledged the qualification “**proven to be as absorbent as the leading baby dry nappy in independent laboratory tests - 2015” had been omitted from the ad in error, and that the text “For verification write to Asda LS11 5AD” was later added. However, because that information and signpost to where more detailed information about the comparison could be obtained was not included in the ad at the time it was seen by the complainant, we considered it did not allow consumers or competitors to verify the comparison and therefore concluded the claim was in breach of the Code.
On this point, ad (a) breached CAP Code (Edition 12) rule 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).
Ads (a) and (b) must not appear again in the form complained about. We told ASDA Stores Ltd to ensure that in future they held sufficient evidence to substantiate claims consumers would understand as objective, and to ensure that any comparative claims with identifiable competitors were verifiable.