Two paid-for YouTube ads for a mattress comparison site top5bestmattresses.co.uk, seen in May 2023:
a. The first ad was a video that contained a person in a T-shirt with the text “Top 5” written on it. They said, “Hello, and welcome to the top five best mattresses dot com. Today, we’ll be testing the UK’s most awarded mattress: the Emma original.” An Emma mattress was then unboxed and displayed on a bed. The person explained the different elements of the mattress, including the different materials and layers of the mattress. They gave a positive assessment of the Emma mattress. They concluded the video by stating, “In summary, it has top quality materials, it adapts to all body types, it contains a removable and washable cover, it has a two-hundred-night trial, and it can be placed on any type of bed. Our verdict: we love Emma and everything about it. Try it and tell us how your first nights were with it. See you in the next review.”
b. The second ad was a static image that contained graphics of a person lying on a mattress, the different layers of a mattress, a mattress with an award ribbon above, and a mattress coming out of a box. Below this was the text “Exclusive Deals and Coupon Codes – Spring Sales: Up to 55% … compare popular beds brands in 2023. Check out exclusive deals and discount codes … www.top5bestmattress.co.uk/”. Links labelled “How to choose a mattress”, “Sleep products” and “Best” were also included.
Four complainants, who understood that top5bestmattresses.co.uk was owned by a mattress company, challenged whether the ads made clear their commercial intent.
Emma Matratzen GmbH (Emma) believed it was clear that the Top 5 website was owned by a mattress company and pointed out that the complainants had understood this. They said the ads contained a link to the Top 5 website and on the landing page was explanatory text which outlined that the Top 5 website was owned and controlled by a subsidiary of Emma. However, Emma acknowledged that the explanatory text was not included in the ads. They said that they would be changing their ads to ensure the explanatory text was available for consumers. Ad (a) had been changed to include the overlaying text “Top5 best mattress is a comparison site operated by DIBMat GmbH, a fully owned subsidiary of Emma Sleep GmbH that owns the Emma mattress featured on this video”. They said they would ensure that future marketing communications made clear that they were associated with the Top 5 website.
The CAP Code stated that marketing communications must make clear their commercial intent, if that is not obvious from the context. We acknowledged Emma’s explanation that top5bestmattresses.co.uk was owned and controlled by a subsidiary of Emma.
We considered that consumers would understand from ad (a), which included “Top 5”, “we’ll be testing the UK’s most awarded mattress”, and “See you in the next review”, as implying that top5bestmattresses.co.uk was an independent review site. It implied that an impartial source had judged the mattress and arrived at the conclusion that it was a very good overall product.
Ad (b) featured a stylised image of a mattress with an award ribbon above, and the text “compare popular brands in 2023 …”, and the website address, “www.top5bestmattress.co.uk”. It included links to advisory notes, for example, “How to choose a mattress” as well as a link to “best” products. In the absence of any clear qualification to explain the context of the claims, the ad was likely to be interpreted as representing an unbiased, independent review site where mattress brands were objectively compared and the best recommended. However, given that top5bestmattresses.co.uk was owned and controlled by a subsidiary of Emma, any comparison or recommendation was not independent.
We acknowledged Emma’s comment that that the ads contained a link to the Top 5 website where a disclaimer outlined that it was owned and controlled by a subsidiary of Emma. However, this information was material to consumers’ understanding of the ads and the partiality of the website they were directed to, which was likely to influence their decision to proceed further with an enquiry. As such, that information should have appeared in the ads themselves.
Given that both ads implied independent comparisons of popular mattresses could be found at top5bestmattress.co.uk when this was not the case, we concluded that the ads omitted material information, did not make clear their commercial intent, and were therefore likely to mislead.
The ads breached CAP Code (Edition 12) rules 2.3 (Recognition of marketing materials), and 3.1, 3.3 and 3.9 (Misleading advertising).
The ads must not appear again in the form complained of. We told Emma Matratzen GmbH t/a Emma to ensure future marketing communications made clear their commercial intent.