Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Claims on a website for a vacuum cleaner manufacturer and a national press ad:
a. A product page on www.gtech.co.uk, seen in March 2015, stated "Gtech AirRAM ... The cord that gets snagged and holds you back. Gone. The heavy weight that makes it so hard to lift and carry. Halved* ... 10/10 ‘Is this the best vacuum cleaner ever?’ ... AirRam not only outperforms a number of cordless products with ease, but matches the performance of mains powered upright vacuums*". The asterisks linked to text at the bottom of the page that stated "*Performance comparisons based on independent test to IEC 60312-1 ed 1.1 sec 5.1 and 5.3 when compared to mains powered upright vacuums (Source: GFK, UK Top 20, 2013)".
b. The press ad, seen on 1 March 2015, was headed "10/10 ‘Is this the best vacuum cleaner ever?’ Daily Mail". Text stated "... The cord that holds you back. Gone. The ridiculous weight that makes it so hard to lift and carry. Halved* ... Astonishingly independent tests prove the AirRam matches the performance of mains powered upright vacuums ... This cleaning performance is proven on both carpet and hard-floors† ...". Small print stated "*When compared to mains powered upright vacuums (Source: GFK, UK Top 20, 2013) † Performance comparisons based on independent test to IEC 60312-1 ed 1.1 sec 5.1 and 5.3 when compared to mains powered upright vacuums (Source: GFK, UK Top 20, 2013)".
Issue
Dyson Ltd challenged whether the claims:
1. "matches the performance of mains powered upright vacuums" in ad (a) and "the AirRam matches the performance of mains powered upright vacuums" in ad (b) were misleading, because they believed a recent regulatory change, which affected the pick-up requirements for vacuuming hard floors with crevice, had a direct impact on any performance comparison;
2. "The heavy weight that makes it so hard to lift and carry. Halved*" in ad (a) and "The ridiculous weight that makes it so hard to lift and carry. Halved*" in ad (b) were misleading and could be substantiated; and
3. "10/10 'Is this the best vacuum cleaner ever?'" in ad (a) and "10/10 'Is this the best vacuum cleaner ever?' Daily Mail" in ad (b) were misleading, because they were based on an out of date review.
Response
1. Gtech said the claim "matches the performance of mains powered upright vacuums" in ads (a) and (b) was based on the results of annual independent testing on the top selling mains powered upright vacuum cleaners. They explained that they received annual third party market data in mid-February and purchased the relevant products and filters, which were independently tested to International Electrotechnical Commission (IEC) Standard 60312. It took some weeks for the testing and results to be collated. The earliest the results were likely to be reflected in their advertising was at the end of June. At the time the ads were published in March 2015 the most up-to-date data they had was for 2013, because the 2014 data was still being processed. They said in the event, the AirRam was just as well placed in 2014 as it had been in 2013.
Gtech said recent energy labelling legislation might have an affect on the leading vacuum cleaners in the future, but they had to work with the latest data available to them rather than basing claims on possible future trends for which they did not have information. They believed it was clear from the ads that the claims were based on 2013 data, which was the most up-to-date data available to them, and consumers would therefore not be misled.
2. Gtech said the claims "The heavy weight that makes it so hard to lift and carry. Halved*" in ad (a) and "The ridiculous weight that makes it so hard to lift and carry. Halved*" in ad (b) were based on the same 2013 data, which was the latest available to them at the time the ads were published. They understood that the trend during 2014 was for lighter upright vacuums and they would therefore amend the claims accordingly once the 2014 data was available to them.
3. Gtech said the claim "10/10 'Is this the best vacuum cleaner ever?'" in ads (a) and (b) was a rhetorical quote from a Daily Mail article. It did not claim that the AirRam was the best vacuum cleaner ever. They said the quote was genuine and was unlikely to mislead consumers. They said that although manufacturers had introduced new models since the newspaper article was published in 2012, seven out of the nine models tested by the Daily Mail were still on the market with minor or no changes to their specifications.
Assessment
1. Upheld
The ASA noted the AirRam and competitor vacuum cleaners had been independently tested to the IEC Standard, which included a test for dust removal from hard floors with a crevice. Dyson had not challenged the validity of Gtech’s testing, but whether the results should still be used as the basis for performance claims. This was because a recent regulatory change had resulted in a major shift in the vacuum cleaner market, which Dyson believed significantly altered any performance comparison between the AirRam and mains powered upright vacuums.
We understood that energy labelling regulations came in to force in September 2014. All new mains upright vacuum cleaner products were now required to have a crevice pick-up performance of at least 95%, which was much higher than the previously expected performance rating. We acknowledged that, because new products on the market would have a much higher crevice pick up, a performance comparison between energy label compliant machines and the AirRam was likely to have a different outcome from the same tests using older machines. Nonetheless, although the regulations had been implemented some months before the ads were published, Gtech was working with the latest annual market data and test results that were available to them, which did not include newer energy label compliant models. We recognised that the vacuum cleaner market was likely to have changed due to the energy labelling regulations, but considered that, because it was clear from the ads that the comparison was based on the best-selling mains powered upright vacuums of 2013, consumers would understand that the claims did not include newer models on the market. The claims were therefore unlikely to mislead on the basis suggested by Dyson.
However, although the ads stated that the claim “matches the performance of mains powered upright vacuums” was based on the UK Top 20 mains powered upright vacuums of 2013, we understood that only 15 vacuum cleaners were tested by Gtech, because the names of the other five cleaners were not included in the GFK data. We acknowledged that Gtech was only able to test those products that had been named, but because the ads stated that the claim was based on a comparison with the top 20 vacuum cleaners and consumers would therefore understand that the comparison was made against all 20, which was not the case, we considered that the claim was misleading.
In addition, we also considered that the claim “matches the performance of mains powered upright vacuums” implied that it was a general performance claim based on performance on all types of floor surfaces. We understood, however, that the comparison was with dust removal from carpet and hard flat floors only and did not include the results of dust removal from hard floors with a crevice. The claim in both ads linked to text that referenced the relevant sections of the IEC Standard that were used as the basis for the claim, but we considered that consumers were unlikely to understand that sections “5.1 and 5.3” referred specifically to the tests for dust removal from carpet and hard flat floors only.
We considered that the hard floor with a crevice test was a relevant indicator of pick-up performance in the context of a general performance claim and, because it was not sufficiently clear that the claim only referred to performance on certain types of floor surfaces, the claim “matches the performance of mains powered upright vacuums” was likely to mislead consumers. We concluded that, because the claim was based on only 15 of the top 20 bestselling vacuum cleaners and it was unclear that the comparison did not include dust removal performance on hard floors with a crevice, the ads breached the Code.
On this point, ads (a) and (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), 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) 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.
2. Upheld
We noted the claims were based on the latest information available to Gtech at the time of publication. Although the ad stated the weight comparison was made against the top 20 bestselling mains powered upright vacuum cleaners of 2013, only 15 of the 20 were assessed.
We understood that Gtech used the average combined weight of the 15 vacuum cleaners as the basis for the comparison with the AirRam. However, we noted the average weight was 6.42 kg whereas the AirRam weighed 3.6 kg and therefore it was not half the average weight of the 15 cleaners considered. In addition, we considered that consumers would understand the claims "The heavy weight that makes it so hard to lift and carry. Halved*" in ad (a) and "The ridiculous weight that makes it so hard to lift and carry. Halved*" in ad (b) to mean that the AirRam was half the weight of each of the bestselling vacuum cleaners rather than half the weight of the average of the combined weight of the cleaners. Although lighter than all 15 vacuum cleaners, the AirRam was nonetheless more than half the weight of 11 of the 15.
We considered that, because the AirRam was not half the weight of each individual vacuum cleaner against which it was compared, nor half the average weight of those cleaners combined, and was based on 15 top sellers rather than the claimed top 20, we concluded that the claims were likely to mislead.
On this point, ads (a) and (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), 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) 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.
3. Upheld
We understood that the claim “10/10 ‘Is this the best vacuum cleaner ever?’” in ads (a) and (b) was a quote from an article published in 2012 by The Daily Mail. The section of the article that referred to the AirRam was available to read further down the page in ad (a) and text stated both the source and date. However, the claim itself, positioned at the top of the page, did not include either the source or date and appeared alongside a Good Housekeeping Institute logo, which gave the impression that the quote was attributed to them, which was not the case. Ad (b) included text stating “Daily Mail”, but did not include a date.
We understood that the original article compared a number of different types of vacuum cleaners, but the tests were unlikely to have been carried out to accepted industry standards and some of the vacuum cleaners tested were either no longer available or had been replaced by upgraded models. For that reason, we considered that it was important that the source and age of the quote needed to be clearly stated in the ads. We acknowledged that the quote was genuine and was clearly an expression of opinion posed as a question. We considered that it was acceptable to use it in the ads, providing it was suitably qualified to ensure that consumers understood the context from which it came.
Because ad (b) did not include a date and ad (a) did not include a date or source and gave the impression that the quote was made by the Good Housekeeping Institute, we considered that, without qualification, the claim “10/10 'Is this the best vacuum cleaner ever?' ” was misleading.
On this point, ad (a) and 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 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification).
Action
Ads (a) and (b) must not appear again in their current form. We told Grey Technology Ltd to ensure claims accurately reflected the evidence intended to substantiate them and that quotes were suitably attributed and dated.
