Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A brochure ad and a website ad, for a product designed to protect car paintwork:
a. The brochure included seven images which illustrated the types of protection provided by the product, under the heading "Proven to protect against". One image showed a flock of birds, followed by text which stated "Bird Droppings". Underneath the images, text stated "*Fading from ultraviolet light is virtually eliminated as is nitrate etching caused by bird droppings (provided it is removed within 7 days and retreated [sic] with Diamondbrite Conserver)".
b. The website, www.jewelultra.co.uk, included a web page which described the product. Text stated "The hard, high gloss protective skin that Diamondbrite creates prevents road salts, traffic film, acid rain, tree sap, insect fluid and other atmospheric pollutants from contacting directly with your cars [sic] paintwork. Fading from ultraviolet light is virtually eliminated as is nitrate etching caused by bird droppings (as long as it is washed off within 7 days and treated [sic] Diamondbrite Conserver)".
Issue
Autoglym Ltd challenged whether the following claims were misleading and could be substantiated:
1. the claim in ad (a) that the product was "Proven to protect against ... Bird Droppings"; and
2. the claim in both ads that fading from nitrate etching caused by bird droppings was "virtually eliminated".
Response
1. & 2. Jewelultra Ltd said their Diamondbrite product was originally developed by chemists on their behalf in the late 1980s to early 1990s. They said the product was tested during development, including in relation to its ability to resist damage from bird droppings; the claims in the ad were based on those test results. However, they no longer had copies of the test reports.
Jewelultra provided copies of correspondence dating from 1990 onwards which referenced their contracts with two car manufacturers to use their product as a protective coating for new cars, including the results of tests on the product which were conducted by one manufacturer before agreeing to use the product. Those did not test for the product's ability to protect against bird droppings. Jewelultra also provided a technical report regarding tests on their product which had been carried out by an independent research company in 2011. Those tests related to the product's ability to protect against general weathering, but not its ability to protect against bird droppings. They said they had never had any complaints from consumers, car dealerships or car manufacturers that their product had failed to protect against bird droppings. They said they had now commissioned tests specifically in relation to whether their product protected against bird droppings.
Assessment
1. & 2. Upheld
The ASA noted Jewelultra no longer held copies of the tests on which they had based their advertising claims. We acknowledged they had commissioned new tests, but the CAP Code required that advertisers must hold documentary evidence to substantiate their advertising claims before publication. We considered that such evidence should consist of trials of the product which specifically tested its ability to protect against bird droppings. Because we understood Jewelultra did not hold such documentary evidence, we concluded the claims had not been substantiated and were therefore misleading.
The ads 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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
Action
The ads must not appear again in their current form. We told Jewelultra to remove claims which stated or implied that Diamondbrite could protect against bird droppings until such time as they held adequate documentary evidence to substantiate their claims.
