Background

Summary of Council decision:

Three issues were investigated, all of which were Not upheld.

Ad description

A brochure promoting proposed drilling and prospecting work, known as Ballinlea 2, was sent to residents of the local area.

A covering letter referred to past work that had already been completed (Ballinlea 1), as well as describing the project that was being proposed in more detail.

An accompanying brochure outlined the background to the project and provided further details. Section 2 was headed "Present Position" and stated "Rathlin correctly stated in its June 2013 information brochure, 'This application does not seek permission to undertake hydraulic fracturing (fracking).' Rathlin's position has always been that it will not undertake any operation without permission from the respective regulatory authority. However, given the heightened concern during 2013, the DoE requested in November 2013 information on all methods that could potentially be used to assess Ballinlea 2's commercial potential ... The DoE would initially consider this amended planning application on the basis, for example, that Rathlin would undertake conventional hydraulic fracturing. Although the conventional hydraulic fracturing process is now included in the scope of the Department's approval/refusal process, this does not in any way imply any greater likelihood that it will play any part in Rathlin's operations. The potential for such fracturing, assuming approval would depend upon initial preliminary tests ... The above change resulted simply from DoE's express request that all the operational techniques Rathlin might potentially require to apply be included".

Issue

The complainant, a local resident opposed to the operation and part of the Ballinlea Residents group, challenged whether the claims:

1. that the 2008 operation in Ballinlea was "completed safely and without any damage to the environment or the aquifers, or to the landscape, and with no incident or injury, either to people, wildlife or other animals. There are no recorded instances of any serious disturbance to the local community from these operations" was misleading and could be substantiated;

2. "There are no grounds for concerns or fears that these proposed, temporary, operations need have any greater impact either on the environment or the local community than did the first Ballinlea 1 well" was misleading and could be substantiated, because they understood that Ballinlea 2 included several additional operations, which they believed would potentially have a great impact on the wellbeing of the local community and the environment; and

3. in Section 2 misleadingly implied that DoE Planning had required Rathlin Energy to include additional operational techniques and processes, such as hydraulic fracturing, acid squeeze and a mini fall-off test in the shale, because the complainant believed that Rathlin Energy had themselves wanted to include those processes in the application.

Response

Rathlin Energy Ltd explained they were an oil and gas exploration company, which did not market or sell any products or services to the public. They stated that, as part of the process of applying for planning permission to drill an exploration well in Northern Ireland they were required, by the relevant planning agencies, to engage in consultation with the local communities within which they proposed to operate. The documentation referred to by the complainant was intended only, as part of that consultation process, to explain the company's position on the proposed operations, address the concerns of the local communities and to invite the local public to comment on them.

1. Rathlin Energy stated that, throughout the drilling of the first well at Ballinlea in 2008, which was undertaken by a partner company of Rathlin Energy, daily detailed records were maintained of all activities at the drilling site. They confirmed that, following a detailed review of the relevant reports, namely the Daily Drilling reports, Daily Completion reports, the End of Well Report, and all correspondence received from the operating partner, they had found no documentation of any complaint having been received with regard to the drilling operations; no record from any of the company's regulators of any environmental, legal or other permitting infringements; and no claims or allegations of any kind for loss or damage caused by the operations.

2. Rathlin Energy stated that, while they might differ in detail from those used in the first well, the scope of the operations proposed for the Ballinlea 2 well were all within the range of both recognised and well established conventional oil and gas drilling and well completion techniques which had been routinely and safely applied by the international petroleum industry for many years.

They provided further technical detail about the scope of operations undertaken at Ballinlea 1 and the operations incorporated in the Planning Application for Ballinlea 2.

3. Following discussions with the Department of Environment (DoE) in Northern Ireland, Rathlin Energy was asked to detail all the technology which it might at any stage need to deploy in the process of testing and completing the next well, whether or not it ultimately decided to deploy any or all of the techniques. They said the DoE Planning Group's requirements were new, and had arisen as a result of changes in the DoE's approach in relation to proposals for hydrocarbon exploration across Northern Ireland, introduced since the first well was drilled at Ballinlea in 2008. They stated that, currently, there was no reason to assume that all the specific techniques included in the planning documents would be required.

Assessment

1. Not upheld

Although the ASA understood that the complainant maintained that there was anecdotal evidence that there were harmful effects on children living near Ballinlea 1, such as vomiting and skin rashes, we considered that the claim would be understood to relate to formally recorded instances of injury or other safety incidents, caused during the Ballinlea 1 operation. The ASA considered that the advertisers had reviewed the relevant documentation pertaining to the 2008 operation in Ballinlea and understood that there were no recorded local instances of any serious disturbance. We therefore concluded that the claim was not misleading.

On that point, we investigated the ad under CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.    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  3.7 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), but did not find it in breach.

2. Not upheld

We noted that the claim appeared in the brochure's covering information and was seeking to respond to "genuine concerns of local residents regarding oil and gas exploration" and the advertiser's particular concern that it believed "some misleading comment and disinformation have been circulating in public about our plans".

We understood that the advertiser's exploration work had been high profile in the Ballinlea area, generating local press attention, and was subject to local opposition. In light of that context, we considered that it was clear that the purpose of the ad was for the advertiser to present its view of the matter and to attempt to address and respond to local concerns.

We acknowledged that the complainant understood that Ballinlea 2 included several additional operations, which she believed would potentially have a great impact on the wellbeing of the local community and the environment. However, we considered that the claim "There are no grounds for concerns or fears that these proposed, temporary, operations need have any greater impact either on the environment or the local community than did the first Ballinlea 1 well" was a general claim which did not imply that there would be no operational differences between Ballinlea 1 and Ballinlea 2, but referred to the likely impact, which the advertiser believed would not be greater than the previous operation.

We also noted that the ad provided extensive information, including about the background of the previous work and what it was proposed that Ballinlea 2 would entail.

We considered it was clear from the information provided in the ad that, unlike Ballinlea 1 which was a completed operation, Ballinlea 2 was still at a planning stage. We also considered that the ad made clear that not all of the Ballinlea 2 operations listed would certainly be included in any final work, but were being listed to provide comprehensive information to readers of the ad. We understood therefore that those operations may or may not take place.

We considered that the ad would be understood to represent the advertiser's view that the proposed operations, which were detailed in the ad and were still at a planning stage and therefore not confirmed, would not have a greater impact than their previous operation. In light of that context, we considered readers would not infer that the two operations were identical and would understand that, whilst there may be some differences, the ad was expressing the advertiser's view that they did not believe that Ballinlea 2 would have a greater impact than Ballinlea 1. Rathlin Energy provided extensive information about the two operations that underpinned that view. We therefore concluded that the claim was not misleading.

On that point, we investigated the ad under CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.    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  3.7 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), but did not find it in breach.

3. Not upheld

We considered that Section 2 would be understood to mean that DoE's Planning Department (DoE Planning) required a full picture of Rathlin Energy's proposed operational plans, in order to be able to assess the planning proposal. Rathlin Energy were therefore prompted by DoE Planning to disclose all potential operations at the proposal stage, to ensure that DoE Planning had sufficiently detailed information about what was planned, in order to make a decision. We considered that the public would generally expect any Planning Committee to require a developer or other applicant to provide and disclose all detailed relevant information about all planned aspects of their proposed application or operation. We considered the claims would therefore be understood in that context.

Therefore, we considered that Section 2 would be understood to imply that DoE Planning expected to be provided with a full picture of what was planned, including what might be potentially and subsequently required, depending on how preliminary exploration went. We did not consider the ad would be understood to mean that Rathlin Energy only added and included those operations because DoE Planning had required them to, or that DoE Planning forced Rathlin Energy's hand to include additional operations they had previously, and deliberately, hidden.

On that basis, we concluded that Section 2 of the ad was not misleading and did not breach the advertising Code on the grounds suggested by the complainant.

On that point, we investigated the ad under CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.    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  3.7 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), but did not find it in breach.

Action

No further action necessary.

CAP Code (Edition 12)

3.1     3.3     3.7    


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