Background

Summary of Council decision:

Three issues were investigated, all of which were Upheld.

Ad description

A website for Lakeland Paints, www.lakelandpaints.co.uk, seen on 17 August 2017, featured text on the home page under the title “our Products” stating “So Safe that your baby can eat it !”, and “So pure because it has Zero VOC, Zero Solvent, Zero heavy metals !”. A green box also featured tick symbol bullet points with text stating “NO solvents - white spirit, turpentine, glycols or any VOC’s”, “NO heavy metals - lead, cadmium or mercury, all our paints are EN71 compliant, just like children’s toys”, “NO pesticides, herbicides or toxins” and “NO phthalates or APEO’s - substances that can trigger asthma/allergies and cause hormone damage to wildlife”.

Issue

The complainant challenged whether the following claims about the paints were misleading and could be substantiated:

1. “VOC-free” (volatile organic compounds), because they believed it was not possible for paints to be completely free of VOCs.

2. “NO heavy metals” such as “lead”, because they believed the ad implied this was a selling point of their specific paints, whereas this was already a legal requirement.

3. “So Safe that your baby can eat it”.

Response

1. Technical Specialities Ltd t/a Lakeland Paints said they had commissioned independent analyses of VOC levels in their matt wall paint. In one test in 1991 under EPA method 8240, the paint was found to contain 0.44 parts per million (0.000044%) of VOC. They stated that meant the paint contained 0.00044 g/l of residual VOCs. In a second test in 1992 using a time-weighted method, after 30 minutes the highest level of VOC emissions found were 564 micrograms per cubic metre of air per hour (0.564 mg/m3). They said the low levels of VOCs found in their paint constituted a valid common sense basis for their VOC-free claim, as 0.00044 g/l was mathematically zero. They provided documentary evidence of the test results.

Lakeland Paints said their “VOC-free” claim applied to all the products in their ranges, including specialist paints and all speciality products, and that they had been using the same formula in their paints since the tests had taken place. They stated that under EU Directive 2004/42/CE, on the limitation of emissions of VOCs due to the use of organic solvents in decorative paints, their range of paints were product subcategory ‘b’; Interior glossy walls and ceilings (Gloss >[email protected]°) for which the VOC limit was 30 g/l. Therefore the packaging on all their products stated “The VOC content of this product is 0.000g/L. EU2010 limit value for this product (cat 1b decorative) is max 30g/L". They also stated that the content of 0.00044 g/l of residual VOCs was much lower than the products of their competitors.

Lakeland Paints said the basis of the “VOC-free” claim for all products in their ranges was the two independent tests on matt wall paint, as well as their own in-house tests. They said matt wall paint had been independently tested as that represented the worst case scenario of VOC content in their products as it was very porous, and therefore VOCs would leach out of that type of paint when drying faster than their other products.

Additionally they said that ethylene-vinyl acetate (EVA) was an externally supplied ingredient in the tested matt wall paint which was water based, and the EVA contained 50–200 ppm (0.005–0.02%) of VOC. Lakeland Paints said they used monomer reduction technology on the paint which then reduced the VOC value from 200 ppm down to 0.44 ppm (0.000044%), and that had been confirmed by the independent testing. They said that their 35 other product types such as gloss, satin and floor paints were based on acrylic, which was also an externally supplied ingredient and contained a lower VOC level of 50 ppm. These 35 other products underwent the same in-house monomer reduction technology processes. They had therefore not had the other products independently tested as they knew the acrylic ingredient had lower VOC content than the EVA ingredient in the matt wall paint.

Lakeland Paints also said they had identified one product in their range, a paint stripper, that did not fulfil the descriptions in the challenged claims, and that they would therefore remove this item from sale and their advertising.

2. Lakeland Paints said that independent analysis of heavy metal content in their matt wall paint had been carried out in 2012 and no heavy metals were detected. They provided evidence of the cited test results which stated the paint had been found to meet the requirements of British Standard and European Norm BS EN 71-3: 1995, relating to the safety of toys; the specification for migration of certain elements. Lakeland Paints again said the matt wall paint had been tested because it would represent the worst case scenario of heavy metal content in their paints, as it was very porous.

Lakeland Paints said that it was not possible to state that all paints on the market were completely free of lead and heavy metals, because lead based paints were still available under license for historic buildings and other purposes, and it could not be stated with absolute certainty where those paints would be used. They also stated they understood that lead sulphate and lead carbonate had been banned in paints generally available to the public by environmental protection regulations. However, other types of lead, in particular lead naphthenate were not currently banned in the UK. They believed that lead naphthenate was widely used in paint driers in the industry until fairly recently, and this was now being superseded by other toxic organometallic materials such as calcium, zirconium and cobalt salts. Therefore they believed their lead-free and no heavy metals claims did have advertising relevance, as heavy metals were found in other paints.

Additionally, Lakeland Paints said that BS EN 71-3: 1995 relating to the safety of toys was generally used as a standard for paints in the industry, which set limitations on the levels of mercury, lead and cadmium that were allowed in materials scraped off children’s toys.

3. Lakeland Paints said that while they could not test ingestion of their product on infants, their paints did not contain heavy metals or any toxic ingredients such as turpentine, alkyds and VOCs, which were used by their competitors. They also stated that Trading Standards had twice previously queried their claims about non-toxicity and Lakeland Paints had demonstrated their confidence in the claim by a staff member consuming a heaped tablespoon of wet paint chosen randomly from the factory. They also said that other gloss paints on the market would be very harmful if consumed by a child, and that many other paints contained significant quantities of toluene and xylene which were also harmful.

Assessment

1. Upheld

The ASA considered that consumers would be likely to understand the claim “VOC-free” to mean a total absence of Volatile Organic Compounds (VOC) in all products supplied by Lakeland Paints. We therefore considered Lakeland Paints should hold relevant certification demonstrating that all the products to which the “VOC-free” claim applied were completely free of VOCs.

We acknowledged that the VOC levels detected in the tests of the matt wall paint (0.00044 g/l) were negligible and well below the limit of 30 g/l set in EU Directive 2004/42/CE and that Lakeland Paints were willing to remove the paint stripper from sale. However, we understood that the “VOC-free” claim was intended to apply to all products in Lakeland Paints’ ranges. These product ranges included wall, wood, metal and masonry paints, and various specialist paints and products such as sealers, primers, paint strippers and glue.

While we noted Lakeland Paint’s view that the matt wall paint would have the highest level of VOCs in all their products, we had not seen evidence to that effect. We were also concerned that the matt wall paint tests dated from 1991 and 1992, and we had not seen evidence to show that the composition of Lakeland Paints had not changed since then. Because we had not seen evidence which demonstrated that all of Lakeland Paints’ products were “VOC-free”, we concluded that the claim was misleading.

On that point the ad breached 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).

2. Upheld

We considered that consumers would interpret the claim “NO heavy metals - lead, cadmium or mercury, all our paints are EN71 compliant” to mean that none of the advertised products contained heavy metals, in particular lead, cadmium or mercury. We also considered that the reference to lead in particular was likely to be interpreted by consumers to mean that the advertised products did not contain the type of lead which had been previously banned in paints, and was formerly available to the public and used in many buildings.

Additionally, because the claim appeared in a list with tick symbols under the title “CHOOSE LAKELAND”, and in the context of the website home page with scenic imagery and statements which emphasised the natural and environmentally friendly character of the products, such as “Organic”, “Non Toxic” and “A breath of fresh air”, we considered that the claim implied the fact their paints did not include heavy metals was in contrast to other similar paints intended for similar purposes.

We understood that the basis of the “NO heavy metals” claim for all the paint products was the tests of the matt wall paint from 2012. As above, while we noted Lakeland Paints’ view that the matt wall paint would be the most likely of all their products to contain heavy metals, we had not seen evidence to that effect. Furthermore, we considered that the claim particularly emphasised there were no heavy metals in all the advertised paint products because it stated “all our paints”. Because only one type of paint had been tested, we considered that the claim “No heavy metals” had not been substantiated.

We acknowledged that in some circumstances specialist paints contained heavy metals, and that lead naphthenate had not been banned in the UK. However, we understood that as per the requirements of Environmental Protection regulations, the overwhelming majority of paints that were available to consumers on the market did not contain lead, in the illegal form as we considered the claim would commonly be understood, or cadmium or mercury. We also had not been provided with evidence demonstrating that similar paints by other brands contained the heavy metals lead, cadmium or mercury in any form. We therefore considered that the claim “NO heavy metals” also exaggerated the comparative benefits of the products of Lakeland Paints.

We concluded that the claim had not been substantiated and was likely to mislead.

On that point the ad breached 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),  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).

3. Upheld

The ASA considered that consumers would be unlikely to interpret the claim “So Safe that your baby can eat it” literally, but that they would nonetheless understand it to mean that Lakeland Paints’ products were exceptionally safe.

We noted Lakeland Paints’ view that their products were not harmful as they did not contain heavy metals or toxic ingredients. However, we had not seen sufficient substantiation to support those claims, beyond the independent test results of the matt wall paint for heavy metal and VOC content. In light of that, and in the absence of further evidence demonstrating that the products were exceptionally safe, we concluded that the claim was likely to mislead.

On that point the ad breached 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).

Action

The ad should not appear again in its current form. We told Lakeland Paints to ensure in future that they held sufficient evidence to substantiate their claims, and in particular that they held relevant certification for all the products to which their claims applied, regarding VOC and heavy metal content.

CAP Code (Edition 12)

3.1     3.3     3.33     3.7    


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