Background
Summary of Council decision:
Three issues were investigated, three were Upheld.
Ad description
Internet advertising for the Prime AT Lite, an electronic tracking system:
a. Claims on the website www.ninja-tracking-systems.co.uk included, in the FAQs section, under the heading "Do I require a special mobile phone to monitor my Ninja Tracker?", "No any mobile phone will allow you to instantly receive the full address details on where your device is. The SMS you receive will also indicate the time of the GPS position and the battery life". A page headed "Pet Tracking" included the claims "Live tracks from your PC and mobile phone" and, on the product page under the heading "FEATURES", text stated "Range of accessories - Car charger, hardwire kit, pouches, dog collars, key ring holders, protective cases".
b. Ninja Tracking Systems' profile page on an online retail site included the claim "We are the sole distributor for the Prime AT Lite tracker for the UK and other regions".
Issue
The complainant challenged whether:
1. the claim in ad (a) that the product worked with any mobile phone was misleading and could be substantiated, because she had been unable to use the live map function on her smart phone and had found the mobile site to be generally unstable;
2. the claim in ad (a) that users would receive an SMS were misleading and could be substantiated, because she understood that the message was sent to Ninja Tracking Systems (NTS) and could be accessed by users only online; and
3. the claim "We are the sole distributor for the Prime AT Lite tracker for the UK and other regions", in ad (b), was misleading, because she understood another company also sold the device.
Response
1. & 2. NTS said the product worked with any mobile phone in a number of ways. Firstly, it allowed for an SMS to be sent to up to three mobile phones to ascertain commands being received by the tracker. They said the numbers of the mobile phones selected must be entered into the tracking panel on their website, because the device could not automatically know where to send the SMS. They believed their claim to be correct, because they understood all mobile phones could receive text messages. NTS said an app could also be downloaded to users' mobile phones via the tracking panel however that was dependent on the phone receiving an internet connection. They said their mobile site had over 99% up time and a user's ability to receive the site could depend on the stability of their internet connection. They submitted information from their website related to the SMS function.
3. NTS said they had a contract with the manufacturer, which meant they had the exclusive right to sell the product in the UK. They submitted an extract from the agreement, which stated that the exclusive right was based on achieving a particular sales target per quarter within a rolling 12-month period.
Assessment
1. & 2. Upheld
The ASA noted NTS's comments. Nevertheless, we also noted we had not seen evidence that the product worked with "any mobile phone". We understood the system was designed to send SMS to users' mobile phones but, again, that we had not seen evidence, for example in the form of screenshots of such messages being received, to demonstrate that it did so. We therefore concluded that the ad was misleading.
On these points, ad (a) 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), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
3. Upheld
We noted the extract NTS sent us but were concerned that we had not seen the entire agreement or any evidence that they had complied with its terms in order to retain the exclusive right to sell the product in the UK. We understood the product was available to buy from another manufacturer and therefore concluded that the claim "We are the sole distributor for the Prime AT Lite tracker for the UK and other regions" was misleading.
On this point, ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
Action
The ads must not appear again in their current form. We told NTS to ensure they were in a position to substantiate their objective claims in future. We also told them not to claim the product could not be purchased elsewhere if that was not the case.
