Background
Summary of Council decision:
Two issues were investigated, both of which were Not Upheld.
Ad description
A press ad and website advertised Marks and Spencer schoolwear:
a. The press ad was headed "Proven the best quality schoolwear on the high street". Further text stated "We have independently tested our uniforms against six other high street competitors, and ours came top of the class for durability, colour retention and appearance over 30 washes. So now we've done all the hard work, your kids can do all the hard play". Small print at the bottom of the ad stated "Independent testing carried out between June and July 2012 using British Standard Institute and other methodologies over 30 washes against equivalent school uniform clothing from ASDA, BHS, John Lewis, Next, Sainsbury's and Tesco. See marksandspencer.com/school for details of tests and results".
b. The website, www.marksandspencer.com/school, linked to a web page that stated "TESTING OVERVIEW Testing was carried out by an independent testing house between June and July 2012. Five core school uniform clothing items were tested (Trouser, Skirt, Polo Shirt, Shirt and Cardigan). The tests were carried out against equivalent products from ASDA, BHS, Sainsbury's, Tesco, Next and John Lewis. Most tests were carried out following British Standards Institute or ISO methodologies. Some testing was the in-house methodology of the testing house where there is no appropriate BSI or ISO methodology available. We tested grey trousers and skirts, white polo shirts and boy's shirts and navy cardigans. All garments were washed in accordance with the care label instructions. Below is an outline of each of the tests". A summary of each test and the details of the products tested were given. At the bottom of the page was a link to the full test results. The results gave full scores for each garment in the various tests and also included details of each garment's washing care label.
Issue
Tesco Stores Ltd challenged whether:
1. the claim "Proven the best quality schoolwear on the high street" in ad (a) was misleading and could be substantiated; and
2. the test results that appeared in ad (b) contained all the information necessary for consumers to verify the claim "Proven the best quality schoolwear on the high street".
Response
1. Marks and Spencer plc (M&S) said the claim "Proven the best quality schoolwear on the high street" was based on tests carried out by an independent testing house between June and July 2012 on five core school uniform clothing items (trouser, skirt, polo shirt, shirt and cardigan) from six competitors and their own range. Most tests were carried out following British Standards Institute or ISO methodologies, apart from when no standard test was available, where an in-house testing method was used. When tests involved washing the items they were washed in accordance with the care label instructions. They said this information, and the detailed test results, were available on their website, as highlighted in the ad. They believed this was a fair and objective way of testing the products and was in line with consumer expectations of how testing of garments should be carried out, i.e. that products should be used in accordance with the use instructions provided with them. They said following the care label instructions was the fairest way to compare items in this context. They said if they had washed or dried the garments in a way that was not in accordance with their washing instructions the results would have been open to challenge.
M&S explained how they had selected the garments they had tested. They said they gave considerable thought to the timing of the purchasing of garments for testing, so as to allow their competitors time to launch new lines and for them to buy their new season's ranges before availability became an issue. They said their testing (and claims based on it) was clearly stated as being an assessment of quality and the starting point for their testing methodology was their "core" school wear products. They then found the closest equivalent competitor products available for purchase at the time, and had used the same approach for all competitors. They said they had sourced the Tesco products from Tesco's website. They say they had not aimed to promote their or their competitor's cheapest products, but their core range, and this had informed their choice of garments for comparison.
2. M&S said that in previous years all the major schoolwear retailers had run "price" and "value" based claims, where price was a key comparator. However, they decided to focus in this campaign on "quality", and aimed to highlight the quality of their core schoolwear range, and not the prices of their "outstanding value" range. They therefore did not believe that the verification information in ad (b) needed to include the prices of each garment, as would have been in the case for a "value" or "price" claim. They also said it was not necessarily the case that the most expensive products would perform best, and that theirs was not the most expensive range tested but still performed best.
Assessment
1. Not upheld
Tesco Stores had challenged whether the claim "Proven the best quality schoolwear on the high street" in ad (a) was misleading and could be substantiated. They believed the comparison was unfair because they did not believe that the items tested were the most comparable, and, because the items were washed in accordance with their care label instructions, M&S's garments were tested using a more gentle wash cycle than most other garments.
The CAP Code required that, when making comparisons with identifiable competitors, marketers must compare products meeting the same need or intended for the same purpose. M&S had selected five items of schoolwear (trouser, skirt, polo shirt, shirt and cardigan) and had compared their garments against their competitors' similar products. We considered that they had therefore compared products that met the same need or were intended for the same purpose. The CAP Code also required objective claims to be supported by documentary evidence to substantiate them and that ads that included 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. Tesco believed the claim was misleading because M&S should have selected a different range of garments, both from the M&S and Tesco ranges, and from the other competitors.
The ASA considered that the claim "Proven the best quality schoolwear on the high street" when accompanied by the body copy "We have independently tested our uniforms against six other high street competitors" would be understood by consumers to mean that a reasonable number of items that were a fair representation of the M&S schoolwear range had been tested against their competitors' similar products. We understood that M&S had taken six items from their 'core' schoolwear range and then sourced what they believed to be their competitors' most similar product. We considered this was a sufficient number of items on which to base a general claims about "school wear". Whilst we understood that Tesco believed M&S should have chosen other products in some cases, where more of the competitors had products of a similar composition, we had not seen any evidence to suggest that the selection of garments tested by M&S meant the test results were misleading.
Tesco also believed the comparison was unfair because the items were washed in accordance with their care label instructions, and M&S's garments were therefore tested using a more gentle wash cycle than most other garments. We understood the test related to the whole laundering cycle and that the wash specified on the M&S garments care labels meant that the wash part of the cycle used was gentler than for most other garments tested. However, the spin and rinse cycles were the same as in a "no bar", or normal, wash. Some garments from other retailers, including Tesco, specified a "one bar" wash which meant that the spin speed was reduced. All items were tumble dried until completely dry, and all M&S garments were tumble dried on a regular heat setting in accordance with their care label instructions, whereas most competitor garments were tumble dried on a low heat setting. We considered that although some elements of the laundering cycle for M&S garments were gentler than for competitor products, this was not the case for all elements of the cycle, of which some were less gentle than for most competitor garments. The ASA considered that the claim "Proven the best quality schoolwear on the high street" when accompanied by the body copy "ours came top of the class for durability, colour retention and appearance over 30 washes" would be understood by consumers to mean that the clothing items were subjected to equivalent testing and that M&S products performed best. Although we considered that consumers may choose to wash clothing on their own preferred wash and would not necessarily adhere strictly to the care label instructions, we considered that washing items in accordance with their specific care label instructions was a fair way to carry out such a comparative test.
We concluded that the test was fair and the claim "Proven the best quality schoolwear on the high street" was therefore not misleading.
We investigated ad (a) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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.
3.34
3.34
They must compare products meeting the same need or intended for the same purpose.
and
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.
2. Not upheld
The CAP Code stated that, when making comparisons with identifiable competitors, marketers must objectively compare one or more material, relevant, verifiable and representative feature of those products. M&S had provided detailed test results on their website in ad (b) that they believed were sufficient to allow consumers to verify the comparative claim "Proven the best quality schoolwear on the high street". Tesco believed that the prices of each garment should have been included in ad (b) as this would have enabled consumers to take the price of the items into account, because they were likely to consider price as an indicator of how long a garment might last. We considered that the requirement for the comparison to be "verifiable" meant that consumers should be able to check the information used to make the comparison for themselves. The claim related to quality, and the verification information in ad (b) detailed the garments tested and gave detailed quality test results. We did not consider it was necessary for the price of each garment to be given for the claim to be verifiable. We concluded the information given in ad (b) was sufficient for consumers to verify the comparative claim.
We investigated ad (b) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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) and
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.
Action
No further action necessary.
