Summary of Council decision:
Two issues were investigated, of which one was Upheld and the other Not upheld.
Two ads for Iceland supermarkets, seen in July 2017:
a. An ad seen in the national press stated “Iceland Luxury Sourdough Crumpets are better than M&S Ultimate Five Grain Crumpets for overall quality*”. Small print at the bottom of the page stated “*Blind taste test of 58 people conducted by Cambridge Market Research Ltd on 21.06.2017 using Iceland 6 Luxury Sourdough Crumpets, £1.00 (16.7p per unit) and M&S 6 Ultimate Five Grain Crumpets, £1.00 (16.7p per unit). See further details at Iceland.co.uk/Iceland-crumpet-taste-test and groceries.iceland.co.uk/our-food/awards”.
b. A web page describing Iceland bakery products, seen on www.iceland.co.uk, stated “Iceland Luxury Sourdough Crumpets are better than M&S Ultimate Five grain Crumpets for overall quality*”. Small print at the bottom of the page stated “*Blind taste test of 58 people conducted by Cambridge Market Research Ltd on 08.06.17 and 21.06.2017, in three different geographical locations, using Iceland 6 Luxury Sourdough Crumpets, £1.00 (16.7p per unit) and M&S Ultimate Five Grain Crumpets, £1.00 (16.7p per unit). 79% of those surveyed thought the overall quality of Iceland’s crumpets was excellent or good, with 62% rating the M&S crumpets as excellent or good. Overall quality scored by consumers after taking into account their scoring of crumpet appearance, colour, size, thickness, aroma, overall taste, strength of flavour, overall texture, freshness, inner texture and mouth feel. The survey group of consumers typically buy crumpets at least weekly or monthly from at least three different supermarkets for their grocery shopping. Products were assessed side by side, at the same time, in any order and as often as the consumers wished, to remove any bias or order (brand, price and weight only revealed at the end of the test)”.
Marks and Spencer plc challenged whether:
1. the claim “Iceland Luxury Sourdough Crumpets are better than M&S Ultimate Five Grain Crumpets for overall quality” in ads (a) and (b) was misleading and could be substantiated; and
2. the same claim in ads (a) and (b) was verifiable.
1. Iceland Foods Ltd believed that the methods of comparison between the Iceland and M&S crumpets were clear and therefore the ad was not misleading. The purpose of the comparison was to compare “quality”. It was based on research undertaken by a leading UK market research agency with substantial experience of product testing. Participants were recruited on the basis that they bought crumpets at least weekly or monthly and used at least three different supermarkets. They represented a spread of age, gender and socio-economic groups. The tests were carried out in three different locations: Newcastle upon Tyne, Thetford and Birmingham. The crumpets were evaluated using a head to head approach, whereby the Iceland and M&S products were assessed side by side at the same time, and the brand, price and weight of each product was revealed at the end of the test. All products were tested blind. The agency recommended a minimum of 50 participants for a survey of this type – the sample size of 58 exceeded this expectation and Iceland believed it was large enough to be statistically valid and robust. Iceland noted that the CAP Advice Online entry on “Substantiation: sampling references and consumer goods” stated that the CAP Code did not require that sampling sizes were stated in marketing communications. However, where a sample size was unlikely to be big enough to be robustly statistically significant to substantiate a claim, the advice recommended including qualifying text to provide further details, such as sampling size. Iceland said that although they believed the sample size was sufficient, they had nevertheless included information about the sample size in both ads.
Participants were asked to rate each product for appearance, colour, size, thickness, aroma, overall taste, strength of flavor, freshness, inner texture and mouth feel. They were then asked to rate the products for overall quality, taking into account the score they had given for each of the above attributes. Iceland said that this set a clear objective justification for the consumers’ assessment of the crumpets, rather than a simply subjective one. This was further evidenced because consumers were asked to give their overall opinion of the products, with 72% rating the Iceland crumpet as good or excellent while 57% gave the same rating to the M&S crumpet.
2. Iceland believed that the claim was verifiable. They said that both ads provided information in relation to the basis of the comparison within the ads themselves, and ad (a) signposted readers to a URL where they could find further details. Ad (b) provided additional information to explain how overall quality was measured. Given the level of detail provided, they believed that the meaning of overall quality had been made sufficiently clear to readers.
The ASA considered that “overall quality” was a very broad attribute, and consumers were likely to expect it to encompass a combination of different factors, the relative value of which would depend on the individual. These could include a variety of subjective factors, as well as more objective ones, for example the source or nature of the ingredients used in the product. Given the general nature of the term “overall quality”, we did not consider that consumers would understand the specific basis of the comparison from the headline claim “Iceland Luxury Sourdough Crumpets are better than M&S Ultimate Five Grain Crumpets for overall quality” alone. The precise nature of what was being compared notwithstanding, the ad stated that the Iceland product was better than the M&S product, and we considered that consumers were likely to understand that to mean that the Iceland product was preferred over the M&S product.
We noted that participants in the test had been asked to assess the two crumpets for a variety of factors, including taste, appearance, texture and freshness, which we considered were likely to contribute to a consumer’s understanding of “quality” in relation to a foodstuff. They were then asked to rate each product for “overall quality” – 79% of participants rated the overall quality of the Iceland crumpet as excellent or good, while 62% rated the M&S crumpet as excellent or good. Out of a sample size of 58 this amounted to a difference of around ten people. We did not consider that the sample was large enough to allow for confidence in the results. Furthermore, because participants were asked to rate both crumpets for overall quality, rather than being asked to choose which crumpet they thought was better for overall quality, there would have been some participants who rated the overall quality of both products as good or excellent. We therefore considered that the results did not reflect a preference for the Iceland crumpet as opposed to the M&S crumpet. When it came to ratings for some individual attributes, and for “overall opinion”, we noted that while the Iceland product performed better than the M&S product, the differences were even smaller than for “overall quality”, and once again they were not reflective of a preference. In some categories, including taste and texture, the M&S crumpet received a higher proportion of “excellent” ratings. In others the Iceland product had received a higher proportion of less favourable ratings than the M&S one.
We considered that consumers would understand that the comparison was based on a preference-based assessment, with more people demonstrating a preference for the Iceland product than the M&S product. However, we noted that participants were not asked to express a preference for either one of the products across any of the categories assessed, and that there was a range of consumer opinions in those different categories that did not conclusively come out in Iceland’s favour. In addition, the sample size was relatively small. Although more participants had rated the Iceland crumpet as “good” or “excellent” in relation to the explicit category of “overall quality”, overall we did not consider that the results of the survey were sufficient to demonstrate that the Iceland crumpet was “better … for overall quality”, as consumers were likely to understand that claim. We concluded that the claim “Iceland Luxury Sourdough Crumpets are better than M&S Ultimate Five Grain Crumpets for overall quality” in ads (a) and (b) had not been substantiated and was therefore misleading.
On that point, ads (a) and (b) breached CAP Code (Edition 12 ) rules
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. and 3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualification), 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. Not upheld
The CAP Code required that “comparisons with identifiable competitors are verifiable”. We considered that meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include, or direct a consumer to, sufficient information to allow them to understand the comparison, and be able to check whether the claims were accurate, or ask someone suitably qualified to do so. We noted that In ad (a) the claim was linked by an asterisk to small print at the bottom of the page, which contained some details of the study methodology and a URL where further information on the relative proportions of participants who rated the products as excellent or good for overall quality could be found. In ad (b), small print located at the bottom of the web page contained details of the study, including factors analysed in addition to “overall quality”, participant characteristics, and methodology. We concluded that the ads contained, or signposted to, sufficient information to allow competitors and consumers to verify the claim. We concluded that ads (a) and (b) did not breach the Code on that point.
On that point, we investigated ads (a) and (b) under CAP Code (Edition 12) rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors), but did not find it in breach.
Ads (a) and (b) must not appear again in the forms complained about. We told Iceland Foods Ltd to ensure that comparisons with identifiable competitors made in their advertising were not misleading.