Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A circular for TalkTalk Telecom Ltd included the heading "Why our fibre broadband is Superpowered … Unbeatable Wi-Fi connection … Our new Super Router gives you an unbeatable signal strength and has the UK's fastest Wi-Fi technology".
The complainant challenged whether the following claims were misleading and could be substantiated:
1. "unbeatable signal strength"; and
2. "UK's fastest Wi-Fi technology."
1. & 2. TalkTalk Telecom Ltd said the claims "unbeatable signal strength" and the "UK's fastest Wi-Fi technology" were based on a comparison with the flagship modems and routers of the other four major market providers on a like for like basis. They said they commissioned an independent third party to carry out out benchmark tests on TalkTalk's super router against their major competitors. They said the results of the tests clearly demonstrated that in comparison with the other devices, their router had achieved the best performance in its class for maximum usable distance that it achieved the best data throughput performance at a 2.4 Ghz operating frequency and it had the best average data throughput performance at the same frequency. TalkTalk provided the third-party report.
1. & 2. The ASA noted the independent report submitted by TalkTalk was conducted in laboratory conditions. We acknowledged TalkTalk's assertion that they had used comparable routers in order to ensure a fair comparison and the results of the testing appeared to indicate that TalkTalk's Super Router performed better than their competitors. We noted the results were marginal in some instances. We considered that consumers would understand the claims "unbeatable" and "UK's fastest" to reflect conditions of use in the home which would be influenced by variables such as the placement of the router in the home and where it was being accessed from, time of day and the number and type of devices linked to it. We were therefore concerned that the testing did not reflect typical consumer use.
Because the testing did not compare the performance of TalkTalk's Super Router under typical home circumstances, we considered the ad was misleading.
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), 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other comparisons).
The ad must not appear again in its current form. We told TalkTalk Telecom Ltd not to exaggerate the performance of their products in the absence of appropriate substantiation.