Summary of Council decision:
Three issues were investigated, all of which were Upheld.
A website for ES Hearing, www.eshearing.co.uk, a hearing aid company, seen on 7 May 2023.
The homepage contained the text “ESH’S FOURTH GENERATION INVISIBLE HEARING AIDS”.
The product page for the fourth generation hearing aid contained a video of a person inserting a hearing aid into their ear until it was no longer visible, and text which stated, “Invisible. Discreet and difficult for the naked eye to spot”. It also contained several images, one of which was headed “product parameters”. The page further stated, “30-day money-back guaranteed … 30-Day Risk-Free Cover … Immerse yourself in them for a full 30 days, if you’re not satisfied you're covered with our 30 day performance promise for a brand new pair”. Next to the image of the product was the text “17 sold in 24 hours … 3 left in stock”. Under the heading named “Description” text stated, “Nearly invisible”.
The complainant challenged whether the ad was misleading, because:
1. the hearing aid was visible when placed in the ear; and
2. they were unable to obtain a refund within thirty days.
3. The ASA challenged whether the claim “17 sold in 24 hours … 3 left in stock” was misleading.
1. Essential Sounds Hearing t/a ES Hearing told us that the hearing aid was invisible because it could go directly into the ear canal, but whether it would become invisible depended upon the ear canal in question. They told us the measurements of the hearing aids were displayed in a picture on the website, and the same picture also showed that the exterior part of the hearing aid was visible when it was in the ear.
They had since substituted the word “invisible” for “in-ear” to give a more accurate description for those consumers whereby the hearing aids did not become invisible when placed in the ear. The video of a person inserting a hearing aid into their ear until it was no longer visible was removed from the website.
2. ES Hearing told us that the 30-day guarantee was in place for those occasions where the product did not meet certain performance standards, and they provided an annex which detailed those standards. They said that in the case of the complainant, there were no performance related issues with the product, and only aesthetic issues were raised. However, the complainant had since been issued with a refund.
They removed the phrase “30-day money-back guaranteed”.
3. ES Hearing explained that the claim “17 sold in 24 hours … 3 left in stock” was based on the number of fourth-generation hearing aids expected to be sold and dispatched per day.
The ad stated “ESH’S FOURTH GENERATION INVISIBLE HEARING AIDS” on the homepage; under the heading “Description” on the product page was the text “Nearly invisible”. The product page also contained a video of a person inserting a hearing aid into their ear until it was no longer visible and text which stated, “Invisible. Discreet and difficult for the naked eye to spot”. The ASA considered that the messages on the website about the visibility of the product were contradictory. As such the ad was ambiguous, but it was reasonable for consumers to assume, from the references and demonstration as a whole, that once the hearing aids had been inserted, they would be barely visible, or only visible under close inspection. However, the hearing aids received by the complainant were easily visible when placed in their ears. We acknowledged that visibility may depend on the individual ear as ES Hearing explained, but this was not made clear, and the ad’s messaging was ambiguous about the visibility of the device. We concluded that the ad was likely to mislead.
We welcomed ES Hearing’s assurance that they had edited the ad to give a more accurate description of the product.
On that point, the ad breached CAP Code (Edition 12) rules 3.1, 3.3, 3.4, and 3.4.1 (Misleading advertising, and 3.11 (Exaggeration).
The product page for the fourth generation hearing aid contained text which stated, “30-day money-back guaranteed … 30-Day Risk-Free Cover! … Immerse yourself in them for a full 30 days, if you’re not satisfied you're covered with our 30 day performance promise for a brand new pair”.
We acknowledged ES Hearing’s comment that a 30-day money-back guarantee was applicable only if the product did not meet certain performance standards. These performance standards included the following technical metrics: mean of frequency, maximum sound deviation, equivalent input noise level, total harmonic distortion, frequency response range, rated current and the maximum OSPL 90.
However, there was no link drawn between the text concerning the 30-day money-back guaranteed claim, and the performance standards for the product. In the absence of a clear indication of the applicable criteria, consumers were likely to understand the references to mean that they could return the hearing aids within 30 days if they were not satisfied with their performance, which could include visibility.
Because the ad failed to clarify the terms of the “money-back guaranteed”, “risk-free cover” and “performance promise” claims, we concluded that the ad was likely to mislead. We welcomed ES Hearing’s willingness to edit the ad.
On that point the ad breached CAP Code (Edition 12) rules 3.53, 3.54, and 3.55 (Guarantees and after-sales service).
The CAP Code stated that marketing communications must not falsely state that a product, or the terms on which it is offered, would be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice.
Text stated, “17 sold in 24 hours … 3 left in stock”. We considered that consumers would understand from this that that there had been a high demand for the hearing aids, such that 17 pairs had been sold in the last 24 hours, and 3 pairs were left in stock. Consumers would therefore need to act quickly to secure a pair. We acknowledged ES Hearing's explanation of the claim.
However, this did not accurately reflect available stock and hurried consumers into a decision to purchase unnecessarily. We therefore concluded that the claim “17 sold in 24 hours … 3 left in stock” had not been substantiated as consumers were likely to understand it and was misleading.
On that point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), and 3.31 (Availability).
The ad must not appear again in its current form. We told Essential Sounds Hearing t/a ES Hearing to ensure that in future claims relating to the appearance of the fourth generation hearing aids did not exaggerate their visibility. Claims relating to a money-back guarantee must be adequately qualified, and any quoted “in stock” and “sold” figures should be accurate.