Summary of Council decision
Two issues were investigated, both of which were Upheld.
An advertorial page on www.telegraph.co.uk for Michelin tyres, seen in August 2015. Text and an embedded video compared the advertiser's tyres with an unspecified 'budget' brand, concluding that premium tyres improved safety and performance in wet conditions over the budget version. The page included statements such as "PERFORMANCE DRIVING NEWS" and "As part of the Telegraph's recent Performance Driving Day, in association with Michelin"; the page and video both featured the advertiser's logo. Text in the top right-hand corner stated "In association with Michelin."
1. The complainant, who believed the ad implied Michelin tyres would always outperform budget tyres, but understood that some budget tyres had a higher braking performance rating than some Michelin tyres, challenged whether the ad was misleading.
2. The ASA challenged whether the ad was obviously identifiable as a marketing communication.
1. Michelin Tyre plc stated that they often communicated generic safety information in relation to the use and management of tyres without seeking to promote a particular product or design, such as free tyre pressure checks, and contributing to road safety programmes. They stated that the video showed an accurate presentation of the performance of 'premium' tyres and 'budget' tyres in identical circumstances. The publisher had commissioned Ben Collins to present the test, had selected the location, controlled the filming and prepared the accompanying text. Although the Telegraph had control of this material, it would not have been published if Michelin had objected to its content.
Michelin said that the tyres used during the test were summer tyres designed for the same purpose and need, and that the performance characteristics tested (wet braking and cornering) were relevant characteristics for a comparative assessment of the performance of the respective tyres. They said the test parameters were entirely consistent and reflected the commonly performed test routines used in assessing the performance of tyres. Ben Collins, an experienced professional racing and performance driver, drove the same car at the same speed and applied the brakes at the same, predesignated point on each occasion during the respective tests. Michelin explained that the test was conducted with only the driver in the vehicle, speaking directly to camera, and that Mr Collins' explanation of the test and his experience of it, including his opinions, were unscripted and represented a genuine and honest expression of his opinion of the performance of the tyres. Michelin said they were satisfied that the video was an accurate record of an appropriate test to demonstrate the comparative braking performance of two different quality tyres, and that the result of the test was that the wet braking performance of the premium tyre exceeded that of the budget tyre.
Michelin said the video did not promote the sale of any particular design or named Michelin tyre, but illustrated the different performance characteristics of the two tyres in a clear and honest way, which could inform a consumer's buying decision by demonstrating that this decision ought not to be made on price alone. With respect to the complainant's specific concerns, Michelin stated that the video and associated text did not attempt, whether directly or indirectly, to imply that their tyres would always outperform budget tyres. They said the comparative remarks made were constrained and solely related to the objective testing undertaken and portrayed in the video. They said there were many different circumstances in which the qualities and attributes of different tyres (premium, mid-range or budget) could be tested comparatively in order to assess the performance of a wide range of tyres. They said the test in the video was a test of two different types of summer tyres and that there was no intention to make a wider or more general comparison. it was therefore their view that it would be unreasonable for anyone to extrapolate the results of this test more extensively so as to apply to all premium or all budget tyres in whatever particular circumstances.
2. Michelin stated their agreement with the response provided by the Telegraph. They said that the clear prominence of their logo, their brand name and their sponsorship of the featured Performance Driving Day and the advertorial signified clearly that the advertorial was a marketing communication.
The Telegraph stated that there were a number of elements that they believed made clear the ad was a marketing communication, both separately and together. They pointed to: the navigational 'crumb trail' above the article (which located the article within the Telegraph website) that showed the article was within the 'sponsored' section; the presence of the phrase "in association with Michelin" and the Michelin logo on the right-hand side of the page; a further 'crumb trail' to the right of the article also locating it within a sponsored website area; the statement "As part of the Telegraph's recent Performance Driving Day, in association with Michelin" in the first paragraph of the article; the presence of the word "sponsored" in the URL; the heavy branding of the car in the video with Michelin logos; and the proximity of this branding to the statement "in association with Michelin".
The ASA noted Michelin's view that the ad presented safety information about tyre performance in wet conditions and acknowledged their statement that the results shown in the video were what was filmed on the day by Mr Collins, and that the comparison was constrained solely to the two specific sets of tyres tested. However, the video started with Mr Collins stating "I'm here ... to make a comparison between budget and premium tyres, to see if something more expensive can actually make you safer whilst you're driving", that text below the video stated "to find out whether more expensive premium tyres really do improve safety and performance when compared to a budget set" and that Michelin tyres were identified as the brand of premium tyres used in the ad. We considered that the ad as a whole, and the above statements in particular, would be understood by consumers as an objective test between budget and Michelin tyres, and that they would expect for the results to be representative of the range of tyres available in both sections of the market. As the test concluded that braking distance and handling were improved when driving with the premium set of Michelin tyres, we considered that consumers would therefore understand from the ad that Michelin tyres had superior performance in wet conditions than budget tyres in general.
We acknowledged Michelin's view that there were several ways in which tyres could be compared, but noted that the ad specifically dealt with the wet braking performance for tyres of unspecified season. We understood that both budget and premium tyres varied in terms of their officially graded wet braking performance, and that some budget tyres had the same (or even better) grading than some Michelin tyres. We noted that the test was only shown in relation to one budget tyre, but that Michelin had provided no evidence to demonstrate that this was representative of budget tyres generally and that the results were consequently applicable to this group of products. We therefore concluded that the comparison had not been adequately substantiated and that the ad breached the Code.
The ad 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) 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).
The ad featured several references to sponsorship and the article being 'in association with' Michelin and, although the ASA considered that these may have served to show that a financial arrangement was in place, they were insufficient to identify the content specifically as an ad (as opposed to, for example, material that had been financially sponsored, but over which the creator retained editorial control) and that Michelin had therefore retained editorial control in the form of the right to veto the content if they were unsatisfied. We noted that the video featured Michelin branding, including in the 'still' before the video was selected to play, and considered that this was similarly insufficient to make clear the nature of the relationship between the advertiser and the publisher. We acknowledged that a heading stated "in association with Michelin", but considered that, because it appeared to the far right-hand side of the web page above listings for other driving-related articles, with a line dividing that part of the page from the advertorial, it was not clear that the heading related to the ad. Moreover, as stated above, we did not consider that the label in itself made clear the commercial nature of the content. For these reasons, we concluded that the ad was not obviously identifiable as such and that it therefore breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications) and 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising)
The ad must not appear again in the form complained about. We told Michelin Tyre plc to ensure that they held suitable substantiation for future comparative claims and that their ads were obviously identifiable as marketing communications, including by using labels other than 'sponsored' or 'in association with' for advertorials and ad features.