Background
Summary of Council decision:
Three issues were investigated, of which one was Not upheld and two were Upheld.
Ad description
A leaflet for the estate agents Butters John Bee Ltd, seen on 5 August 2016, stated “We’re your local independent award-winning estate agency practice and we’ll give you more than any other estate agent … More For Sale and Sold signs than any other local agent. Gold Award Winners as ‘Best in North West’ at 2016 ESTAS National Estate Agency Awards. Only agent in Crewe with viewings 7 days a week”. The reverse of the leaflet stated “CREWE & HASLINGTON … BUTTERS JOHN BEE … BASED ON A SURVEY COLLECTED ON 1-7 JULY 2016 … one simple message… MORE SOLD SIGNS* THAN ANY OTHER AGENT … soldsignaudit 29.6%”. Small print stated “*BUTTERS JOHN BEE WAS THE ESTATE AGENT WITH THE HIGHEST NUMBER OF SOLD SIGNS DISPLAYED BETWEEN THE DATES SHOWN. For Sale Sign Analysis confirms that this advert is a fair and accurate representation of the information found between the dates shown. The quantity of For Sale and Sold signs does not necessarily equate to the number of completions”.
Issue
McGarrible & Co. estate agents challenged whether the following claims were misleading and could be substantiated:
1. “MORE SOLD SIGNS THAN ANY OTHER AGENT … soldsignaudit 29.6%”;
2. “Gold Award Winners as “Best in North West” at 2016 ESTAS National Estate Agency Awards”; and
3. “Only agent in Crewe with viewings 7 days a week”.
Response
1. Butters John Bee Ltd said research had been carried out by an independent market share report company, ‘For Sale Sign Analysis’ (FSSA), which had supported the claim that they had “more sold signs than any other agent”. FSSA, on behalf of Butters John Bee, provided additional documents such as a market share report, board count data with the relevant property addresses and a map which depicted the geographical area referred to in the ad. FSSA said that board counting was carried out by physically counting individual estate agents’ boards in order to establish which business had the most sold signs within a given timeframe. They said the boundaries they used for particular areas had been drawn up with several factors in mind: local estate agent agreement; how they might be interpreted by local consumers; and the relevant postcodes and features such as major roads and non-residential land. FSSA said they had stated “Crewe and Haslington” to ensure it was clear that only the surrounding area of Haslington was included in their analysis. It had not covered any of the additional villages or towns surrounding Crewe.
2. Butters John Bee said that their ad stated that their Crewe office were Gold Award Winners as ‘Best in North West’ at the 2016 ESTAS (Estate Agency Awards). They said that the ESTAS awards were open to any estate agency to enter.
3. Butters John Bee said their Crewe branch employed two weekend viewing representatives and that included visits throughout Sundays. Through their team’s local knowledge, employment of and contact with staff members from other firms, they believed that no other estate agency in Crewe offered the same service.
Assessment
1. Not upheld
The ASA considered that consumers were likely to understand the claim “MORE SOLD SIGNS THAN ANY OTHER AGENT” together with the reference to Crewe and Haslington to mean that Butters John Bee had successfully sold more properties than other estate agents in the entire area of Crewe and Haslington, whether that was sold ‘subject to contract’ (STC) or an actual completion of sale. However, we noted that the claim clearly referred to “sold signs” and not “sales” and that additional text in the ad stated “The quantity of For Sale and Sold signs does not necessarily equate to the number of completions”, which we considered informed consumers of the limitations of board counting data.
We noted that the basis for Butters John Bee’s “more sold signs than any other agent” was a survey conducted by FSSA. We understood that it consisted of a physical count of the number of ‘sold’ sign boards displayed in a given area for a specific period of time. We reviewed the maps of Crewe and Haslington and the various documents provided by FSSA, which included a map of the board count area covered, and noted that it differed from the various administrative boundaries such as parish and constituency boundaries. Therefore, we considered that a definitive or generally recognised boundary may not exist. However, we noted the basis for the Crewe and Haslington area used by FSSA and considered that the discretion afforded by such an approach allowed FSSA to gauge whether a given set of boundaries was acceptable and we understood that they adhered consistently to that outcome for all estate agents who wished to use their board count data.
We reviewed FSSA’s data which showed that out of the estate agents who had displayed sold sign boards, Butters John Bee had the greatest number, which equated to 29.6% as stated in the ad.
Although we understood that the number of sold signs could vary due to factors such as some estate agents not displaying a board or some agents displaying boards for longer than their competitors, we nevertheless considered that the survey results provided by FSSA supported the claim “MORE SOLD SIGNS THAN ANY OTHER AGENT” within Crewe and Haslington, as qualified by the information regarding the limitations of board counting. We concluded, therefore, that the ad was unlikely to mislead.
On that point, we investigated the ad 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 3.33 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), but did not find it in breach.
2. Upheld
We considered that the claim “Gold Award winners as ‘Best in North West’ …” would be understood by consumers to mean that Butters John Bee had been declared the winner of the ESTAS gold award as the “Best” estate agent in the whole of the North West. We understood that ESTAS had three awards which related to three different regions within the North West, and that there was no award for the “Best” agent in the North West overall. While we noted that Butters John Bee had received a gold award, it was for one area within the overall North West region, not all three. Therefore, given how we considered consumers were likely to interpret the claim, we concluded that it was not representative of the award they had won, and was misleading.
On that point, the ad 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).
3. Upheld
We considered the claim “Only agent in Crewe with viewings 7 days a week” was likely to be understood by consumers to mean that, contrary to other estate agents in the Crewe area, Butters John Bee offered to arrange viewings throughout the week, including on Sundays. We noted Butters John Bee’s understanding that they were the only estate agent in Crewe with viewings seven days per week, which was based on their own local knowledge and from employees of competitor firms. We did not consider, however, that such an assertion was adequate to substantiate the claim made which should have been based on objective, comparative information that showed the days that all their competitors offered viewings.
Because Butters John Bee did not provide adequate evidence that they were the only estate agent in Crewe that offered viewings seven days per week, we concluded that the claim had not been substantiated and was misleading.
On that point, the ad 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).
Action
The ad must not appear again in its current form. We told Butters John Bee Ltd not to claim that they were the only agent in Crewe with viewings seven days per week and to accurately reflect the nature of awards they had received.
