Summary of Council decision:
Four issues were investigated, of which one was Upheld and one was Upheld in part; two were resolved informally.
A website for Fisher & Company, www.fisherandcompany.co.uk, seen in early July 2018, advertising solar powered pedestrian crossing beacons. On a web page titled “Solar Powered Belisha Beacons”, the website stated “SolarisV2™… Part No: FSBB2016 V2” and below that featured an image of the product and a specification list. The list included text stating “Anti-Vandal Gallery” and “Fully compliant to EMC and CE standards”.
Ticknall Solar challenged whether the following claims were misleading and could be substantiated:
1. “Anti-Vandal Gallery”; and
2. “Fully compliant to EMC & CE Standards”.
1. In support of the claim, Fisher & Company Engineering Sevices Ltd provided a YouTube video, which they said proved that their product was vandal resistant. The video showed a staff member repeatedly hitting the beacon globe with a metal scaffold pole. At the end of the video there was a slight dent on the globe, but the staff member said that because it was not broken and had stayed in place, it was vandal-proof. Fisher & Company also said there was no specific standard relating to the anti-vandal claim to which they were required to comply.
2. Fisher & Company provided an Electromagnetic Compatibility (EMC) Testing certificate and report, dated January 2016, for the FSBB2016 beacon product. They said the product held a CE mark because it complied with the EC Directive for Low Voltage appliances, and that they had declared this CE mark on their website. They highlighted that the European Commission (EU) Low Voltage Directive (73/23/EEC) stated that a manufacturer’s declaration was sufficient to provide a presumption of conformity for low voltage electrical equipment.
The claim “IP54, 300mm Amber Polyethylene Globe and Aluminium Anti-Vandal Gallery” appeared alongside a picture of the Solar Powered Belisha Beacon, with the solar panels shown above the globe. The ASA considered that traders would understand that the gallery was the part of the product which fixed the globe to the column of the beacon and that the claim “Anti-Vandal Gallery” would be interpreted to mean that the gallery was protected from vandalism to a reasonable degree.
The YouTube video showed a Fisher & Company representative hitting the beacon with a metal scaffold pole. It was not clear from the video whether the gallery had sustained any damage and we considered that there could have been other ways by which vandals were able to attack or damage the gallery other than by hitting it with a scaffold pole. In the absence of independent testing, carried out using a specific methodology designed to test the various potential ways in which the beacon might be subject to vandalism, we considered the claim “Anti-Vandal Gallery” had not been substantiated and therefore concluded that it 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. and (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).
2. Upheld in part
We considered that the claim “Fully compliant to EMC & CE Standards” would be understood by traders to mean that the beacon adhered to the relevant Electromagnetic Compatibility (EMC) and CE mark standards.
We understood that the product was CE marked in line with the EC Directive for Low Voltage appliances and considered consequently that the product could be described as fully compliant to CE Standards.
Fisher & Company provided independent EMC certification of the product which showed that it was compliant with British and European Standard BS EN 55015:2013, relating to the limits and methods of measurement of radio disturbance characteristics of electrical lighting and similar equipment.
However, we understood that a different standard, BS 8442:2015 “Miscellaneous Road Traffic Signs and Devices, was applicable to Belisha Beacons. Section 12 of that standard, entitled “Fixed, permanent pedestrian crossing and refuge beacons and twin amber flashing lights”, required that “Electrical components, including associated ballasts, flashing units and controllers” must conform to BS EN 50293 for electromagnetic compatibility.
The Scope of BS EN 50293 stated that the range of products included road traffic signal systems and devices including signal heads, signalling devices and traffic signs, controller and housing, supports, interconnections, traffic detectors, monitoring equipment and electrical supply. We considered, consequently, that BS EN 50293 was the more appropriate EMC Standard against which to test the product, but had received no information from Fisher & Company to demonstrate the beacon in question had been tested against it.
We concluded that the claim “Fully complaint to … CE Standards” had been substantiated. However, as we had not seen evidence relevant to support the claim “Fully compliant to EMC … Standards” for the product in question, we concluded that the ad was misleading in that regard.
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).
The ad must not appear again in its current form. We told Fisher & Company Engineering Services Ltd that their future ads must not imply that the product was protected against vandalism unless they held adequate evidence that this was the case. We also told them to ensure they did not imply that the product was fully compliant to EMC Standards unless they held evidence the product had been tested against the relevant standard.