A website and brochure for Klober Ltd, a roof ventilation and accessories company:
a. The website www.klober.co.uk, seen on 21 February 2017 on a page titled “Profile-Line ® Twin Plain Tile Vent” included the text “Suits Forticrete Gemini profiled Interlocking tiles”.
b. The brochure, seen in February 2017, included a page titled “Profile-Line ® Tile Vent” which included the text “New Twin Plain Suitable for: … Forticrete Gemini” and specific installation information for some of the products.
Forticrete Limited, who believed that the Profile-Line Twin Plain Tile Vent was not compatible with Forticrete’s Gemini Interlocking Tile, challenged whether the ad was misleading.
Klober Ltd said that they designed their vents to be universal. They provided a report undertaken by Building Research Establishment Ltd (“BRE”), an independent testing company, which they said verified the Vent’s compatibility with the complainant’s roof tiles. The test came to the conclusion that for roofs which were pitched above 25° the vent did not cause premature leakage through the interlock tiles surrounding the vent. However, on roofs which were pitched at 22.5° the roof did leak from the tiles surrounding the vent. When BRE conducted the test they placed a small notch in to one of the roof tiles in order for the vent to sit flat. However, Klober stated that they had never recommended that a notch was required and that they had received no complaints from end consumers that the vent did not sit flush with the tiles without the notch. Further, Klober stated that tiles could be incorporated in to a roof in accordance with British Standards 5534, as it could be mechanically fixed with a single (or more) nail depending on the pitch of the roof.
The ASA considered that traders would understand the claims that the vent “suits Forticrete Gemini” and “Suitable for: … Forticrete Gemini” to mean that the two products would work together. We reviewed the test undertaken by BRE for the advertiser which focused on rain penetration tests on a monopitch roof test rig which incorporated the roof tiles and the vent in order to assess the roof’s resistance to driving rain. The Vent was tested at roof pitches 22.5°, 25° and 27.5° and the report stated that the test was carried out in accordance with the procedures in CEN standard FprEN15601. This standard used two sets of test conditions: the first was high rainfall with high wind speed; the second was a deluge simulation with maximum rainfall and no wind. These conditions represented a typical worst case weather conditions scenario expected in Northern Europe during a 50-year period. The report concluded that there was a potential issue when severe weather conditions could cause leaks in a roof at a pitch of 22.5°. The test noted that the leaks occurred across the whole roof and not just around the vent. We noted that it came to the conclusion that at a roof pitch of 22.5° the vent did cause premature leakage through the interlock with the tiles in the course above the tile vent. However, we understood from the report that when a roof was pitched at 25° and 27.5°, the vent did not cause the surrounding roof tiles to leak earlier than the other roof tiles away from the vent. Further, it concluded that the minimal acceptable roof pitch for the vent was 25° and that as ‘weathertightness’ performance improved with the increased roof pitch, that the vent was also expected to perform satisfactorily when used on roofs pitched above 27.5°. We noted that in order for one of the adjoining roof tiles to sit flat with the vent, it required a notch to be placed in the bottom corner. We also reviewed the test which was undertaken by the complainant. This tested the vent on a roof that was pitched at 23.1° and found that the vent did cause leakage.
As both tests we reviewed came to the conclusion that the vent was not suitable to be used on roofs pitched below 25°, we considered that the minimal acceptable roof pitch should have been stated in the ad. We considered that ad (a) stated that the vent was suitable for use on roofs pitched about 25°, but that ad (b) did not. We noted that the brochure in which ad (b) appeared contained no further information about the product, including suitable pitch use. Because ad (b) did not state the minimal acceptable roof pitch, we concluded that it was misleading.
In respect of the notch BRE placed in the roof tile, while it did not specifically form part of BRE’s conclusion that a notch was required to avoid leakage occurring, we noted that it was mentioned in the methodology, and we considered that the test would be acceptable to substantiate a claim that the vent, when used with the Forticrete Gemini roof tiles under the same conditions (i.e. with a notched tile), did not leak at the roof pitches tested. We noted that ad (b) included specific installation instructions for other vents and ad (a) included a “Technical” section giving further information and a “downloads” section including a datasheet which included installation instructions. In that context, we considered that the requirement of the notch in order for the vent to sit flat would be material to traders about installation that should have been included in the ads. Because neither ad included the information about the notch, we concluded both ad (a) and (b) were misleading.
The ads 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), 3.7 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 3.33 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).
The ads must not appear again their current form. We told Klober Ltd to ensure that their ads included any material installation information and made clear that the vent was suitable to be used on roofs pitched at over 25°.