Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one was Upheld in relation to one ad only.
A website ad and internet display ad, for Fairy Dishwasher Platinum Plus Tablets:
a. The Procter & Gamble website www.supersavvyme.co.uk, seen on 1 November 2019, featured a web page in relation to Fairy products. Large text at the top of the page stated “WHICH? BOTH”. Underneath, an image featured pack shots of two products, including Fairy Dishwasher Platinum Plus Tablets. Text on a Which? Best Buy logo next to the pack shot stated “Dishwasher Tablets December 2017”.
b. The display ad, seen on a regional newspaper website on 12 June 2019, included large text which stated “BEST DISHWASHER TABLET ON TEST” and featured a pack shot of Fairy Dishwasher Platinum Plus Tablets and a Which? Best Buy logo, which featured the text “Dishwasher Tablets February 2019”.
Reckitt Benckiser UK (RB UK) challenged whether:
1. the claim “BEST DISHWASHER TABLET ON TEST” in ad (b) was misleading and could be substantiated, because they believed it would be understood as a comparative claim about the performance of the product compared to all dishwasher tablets on the market; and
2. the claims “Best Dishwasher Tablet on test” and “Which? Best Buy Dishwasher Tablets February 2019” in ad (b), and the claim “Which? Best Buy Dishwasher Tablets December 2017” in ad (a) were verifiable.
1. Procter & Gamble UK said the claim “BEST DISHWASHER TABLET ON TEST” was always displayed with the Which? logo and they believed it would therefore be understood by consumers to relate to the tests carried out by Which? as part of their Best Buy process, rather than as a separate superlative claim.
Procter & Gamble said that Which? was a well-known independent consumer body that tested many products every year through lab tests and user trials to help consumers make buying decisions. They said that Which? tested the performance of Fairy Platinum and as a result the product received the Best Buy award. Procter & Gamble said consumers were fully aware of the Which? Best Buy awards and Procter & Gamble’s marketing simply communicated to consumers that their product’s performance had been recognised by an independent body. They considered it should be acceptable for companies whose products had been awarded Best Buys to communicate that to consumers.
2. Procter & Gamble believed that because consumers would understand that the claims related to awards from Which? they would know that if they wished to verify how those awards were achieved they could do so by visiting Which?'s website, where detailed information was available about the testing methodology and products tested. They provided a link to a page on Which?’s website, which was accessible without logging in, which was headed “How we test dishwasher detergents”. That page provided information about the methodology Which? used when testing dishwasher detergents (including, for example, the crockery used, the food-stains used, the number of washes) and stated the weighting placed on the factors on which they based their overall score (60% on cleaning; 15% on filming and cloudiness; 15% on watermarks; 10% on brilliance). They also provided a link to a page on Which?’s website which listed the products that had been tested and the most recent date the tests had been reviewed. Test scores were covered by padlock logos and were not visible to website users unless they were logged in. From that page website users could click through to information about each individual detergent but the test score information, including pros and cons for the product, were not visible unless logged in.
Procter & Gamble said that while the test results for each product were not available unless logged in, it would be clear to non-logged-in consumers that the product awarded "Best on test" would be the one that had scored the highest points over the other listed products. Procter & Gamble believed that was sufficient to meet the requirement in the CAP Code that comparative claims must be verifiable. Which? also provided their comments. They referred to the same pages on their website referenced by Procter & Gamble and highlighted that those two pages made the test methodology and list of tested products available to consumers for free. They acknowledged that the full reviews for the products were only available to subscribers and explained that the paid-for model was how they generated the revenue to undertake independent testing of products they purchased themselves; they did not accept free samples from manufacturers nor funding from government or other third parties.
Which? further said that the Best Buy endorsement scheme enabled companies with top scoring products to use the Which? logo under licence and in compliance with rules set out by Which?. Consumers were able to refer to the logos in the manner of a quality mark, being assured that the product was top-scoring, and being able to verify on Which?’s website how the product was tested and which other products it had been compared against. Which? said they also permitted Best Buy-endorsed companies to use the phrase “Best on test” so long as their product was the top scoring of all products in the category, including those previously tested, and no new results were expected during the licence period. Which? said they monitored and enforced compliant use of that phrase and the Best Buy logo.
1. Not upheld
The claim “BEST DISHWASHER TABLET ON TEST” in ad (b) appeared directly underneath a Which? ‘Best Buy’ logo which featured the text “Which? Best Buy Dishwasher Tablets February 2019”, and next to a cartoon of the ‘Fairy baby’ holding a gold trophy above its head. In that context, the ASA considered consumers would associate the “BEST DISHWASHER TABLET ON TEST” claim with the Which? ‘Best Buy’ logo and branding and therefore would interpret it to mean that the independent consumer organisation Which? had tested the performance of a range of dishwasher tablets, using its own testing criteria, and that Fairy Dishwasher Platinum Plus tablets had received the highest score of all the tested products.
We considered consumers would expect the range of tablets tested by Which? to include best-selling products in the UK dishwasher tablet market, including both branded products and supermarket own-brand products. However, we did not consider that consumers would specifically expect from the claim that Which? would have tested every dishwasher tablet available for purchase in the UK.
We understood that Which? conducted regular independent testing of the performance of dishwasher tablets, and that in February 2019 Fairy Dishwasher Platinum Plus tablets had received an overall score in that testing which was high enough that they were awarded a Which? Best Buy. Additionally, Fairy Dishwasher Platinum Plus tablets had received the highest score of all the tablets tested by Which?. This qualified Procter & Gamble to make a “Best on test” claim in its advertising for the product, in line with Which?’s licencing terms.
We therefore concluded that the claim “BEST DISHWASHER TABLET ON TEST”, as consumers would understand it, had been substantiated and was not misleading. On that point, 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. (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 with identifiable competitors), but did not find it in breach.
2. Upheld in relation to ad (b) only
CAP Code rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. required that comparisons with identifiable competitors must be verifiable. That meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include, or direct consumers to, sufficient information to allow them to understand the comparison, and be able to check the claims were accurate, or ask someone suitably qualified to do so. The claims “Which? Best Buy Dishwasher Tablets December 2017” in ad (a) and “Which? Best Buy Dishwasher Tablets February 2019” in ad (b) were presented using Which?’s ‘Best Buy’ award logo and branding. We considered consumers would understand from those logos that Fairy Dishwasher Platinum Plus tablets had been independently tested by the consumer organisation Which?, and that they had met the criteria Which? set for its Best Buy dishwasher tablet award, in December 2017 and February 2019 respectively.
We did not consider consumers would interpret those claims to be comparative claims against other products, and noted it was the case that Best Buy awards were awarded to any product in a product category that received an overall test score above a certain threshold set by Which?. Therefore more than one product in each category could be awarded a Best Buy. Because the Best Buy claims in the ads were not comparative claims but rather an indication of whether a product met a specific standard set by Which?, there was no requirement for the claims to be verifiable and Code rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. therefore did not apply to those claims. Ad (b) also featured the claim “BEST DISHWASHER TABLET ON TEST”. As referenced above, we considered consumers would understand that claim to mean that Fairy Dishwasher Platinum Plus tablets had received the highest score of all the dishwasher tablet products tested by Which?, and that the range of products tested would include best-selling branded products (for example, RB UK’s Finish product) and supermarket own-brand products. We considered the Code therefore required that the claim must be verifiable.
While it was clear from the ad that the “BEST … ON TEST” claim related to a score awarded by Which? in February 2019 for the dishwasher tablet product category, the ad did not include any further information about the basis of the comparison or direct consumers to where they could find out such information. We therefore concluded that information that was needed to verify the comparison was not signposted sufficiently clearly in the ad. We acknowledged that information about the methodology Which? used to conduct its dishwasher tablet testing was available for all visitors to its website to view, as well as a list of each of the products they had tested. However, the results of the test of each product, including the overall score awarded to each product and information as to whether it had been awarded a Best Buy and whether it was the ‘Best on test’ (i.e. the highest scoring product overall), could only be accessed by consumers who paid for a Which? subscription.
We, therefore, considered that the details of the comparison in the ad were not readily accessible, and that the comparison was not verifiable. Because of that, we concluded that the claim “BEST DISHWASHER TABLET ON TEST” in ad (b) was not verifiable and breached the Code.
On that point, we investigated ad (a) under CAP Code (Edition 12) 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. On that point, ad (b) breached CAP Code (Edition 12) 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).
Ad (b) must not appear again in the form complained about. We told Procter & Gamble UK to ensure that in future consumers were able to verify the comparisons made in their advertising.