Background
THIS RULING REPLACES THE RULING PUBLISHED ON 10 JANUARY 2018. THE DECISION REMAINS UNCHANGED BUT WITH REVISED WORDING INCORPORATED INTO SECTIONS 2 & 3 OF THE RESPONSE.
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one Not upheld.
Ad description
A page on www.ukjuicers.com, a website for a Juicer retailer, seen on 31 January 2017, was headed "JUISIR & JUICERO - CREATING MORE JUICING PROBLEMS THAN THEY SOLVE". Text stated "We Think That Anyone Who Is Serious About Juicing Regularly Should Avoid These Two Machines ... The customer being permanently tied in to purchasing replacement juicing bags for the Juisir isn't really an 'elephant' in the room because they are quite up front about it ... Juisir is to be marketed by Froothie, an Australian company known for their parasitic online advertising campaigns against known brands - selling their Optimum brand juicers by comparing them with leading marks like Omega, Hurom and Kuvings. At the time of writing, Froothie proclaim on their Juisir product page: ‘The End Of Traditional Juicers’ ... We don't think so ... There's also a false claim within the Juisir Kickstarter campaign that Froothie's Optimum brand is ‘... the leading brand of juicing machines globally’. Leading in what? I thought I'd check this out by comparing Optimum against a few established brands. According to Google, global monthly searches for the term 'Breville Juicer' are on average 126.5 times more frequent than the term 'Optimum Juicer'. Omega Juicer' gets 69.4 times the monthly searches globally ...".
Issue
Athena Solutions Pty Ltd, trading as Froothie, challenged whether the claims:
1. "The customer being permanently tied in to purchasing replacement juicing bags for the Juisir"; was misleading and could be substantiated; and
2. "There's also a false claim within the Juisir Kickstarter campaign that Froothie's Optimum brand is '... the leading brand of juicing machines globally’” was misleading and complied with the requirements of the Code.
They also challenged whether the claim:
3. "Froothie, an Australian company known for their parasitic online advertising campaigns against known brands" denigrated their company.
Response
1. UK Juicers stated that Froothie’s claims that no cleaning would be necessary would only be possible if the disposable elements of the process were thrown away. UK Juicers explained that in the manufacturer’s campaign and in the manner in which the product was pre-sold through the business of the complainant, Froothie offered multiple bulk sales of both the disposable inner cloth and outer plastic bags. Froothie also made it clear that any bags other than the Juisir own brand were unsuitable for use in their juicer. UK Juicers stated that Juisir’s inner cotton bag did not have a reusable option and would have to be replaced after each use by the typical user. The durable silicone outer bag defeated the primary claim of “zero cleaning” as the silicone bag would need to be washed out in order to reuse it in the future.
UK Juicers stated that the cotton liners were only offered in quantities of 60 and 180 bags, which indicated the high frequency with which they were likely to be used and replaced. Therefore it would be reasonable to imply that the user would be ‘tied in’ to purchasing replacements.
UK Juicers explained that given there was a maximum of eight fluid ounces (c. 227 ml) of juice per pressing, the outer reusable bag would need replacing for approximately every 45 litres of juice as an absolute minimum, based on 200 uses. They said frequent users would need to replace the reusable bag every two months at least. They stated the inner fabric bags were by no definition reusable and were shown in their videos to disintegrate after one pressing. UK Juicers said that neither the Juisir’s disposable outer and inner bags nor the reusable silicone bags offered a permanent solution. They stated that the customer was tied in to buying replacements throughout the life of the machine and this was also supported by Froothie’s promotion of bulk buy replacement bags. They stated that their comparison to the coffee pod phenomenon seemed to be reasonable and they did not offer an alternative to their disposable inner and outer bags or the limited reuse silicone bags.
2. UK Juicers stated they posed the question to the reader “Leading in what?” to frame the context of the claim for the reader and deliberately left it open across a range of metrics. They suggested there would be an expectation that “the best-selling brand of juicing machines worldwide” would have at least as high a search prominence as other brands that didn’t make that claim themselves. The question allowed the reader to consider a range of indicators for leadership including sales volumes. They stated that Optimum were a much smaller brand compared with the other brands they had named and they reasserted that they were making a false claim.
They stated UK Juicers were significantly larger than the entire UK Froothie operation in financial terms, yet UK Juicers were not an allegedly leading global brand owner. Examined in the context of market size and market share, they suggested this was further evidence of the false claim being made about the Optimum juicer brand. They also stated that on balance it was unlikely that Froothie were leaders in juicer sales in most territories in which they traded, if any.
3. They stated that Froothie were engaging in the practice of choosing keywords that comprise competitor brands in order that their ads encouraging people not to buy those competitor brands would appear when users search for those competitor brands. They maintained that could be seen on Google’s ads where they directly named the brands concerned. They provided an example of a Google ad for Froothie which was headed “Don’t Buy Kuvings Juicer”, and other examples, and believed these would be objectively interpreted to be parasitic advertising.
They stated that their statement did not fit the definition of denigration in relation to fairness, because their inferences were objectively verifiable and true within the context of the definition of parasitic advertising as it was commonly understood.
Assessment
1. Not upheld
The ASA considered that consumers would interpret the claim “The customer being permanently tied in to purchasing replacement juicing bags for the Juisir", to mean that they would have to purchase replacement juicing bags for the lifetime of the Juisir and implied that the bag would need to be replaced on a frequent basis.
We understood that only Juisirs’ own brand replacement bags were compatible with the machine and the outer silicone bags were reusable for around 200 uses, before they needed to be replaced. However, the inner cotton filter bags would need to be replaced on a more frequent basis after every two to three uses. We therefore concluded that the claim was not misleading.
On this point the ad did not breach CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. 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 the claim, “There's also a false claim within the Juisir Kickstarter campaign that Froothie's Optimum brand is the leading brand of juicing machines globally'” would be interpreted by consumers to mean that, within the Juisir Kickstarter campaign, Froothie were knowingly making an untrue claim that their Optimum brand was the bestselling brand of juicing machines worldwide.
The CAP Code stated that when making a comparison with an identifiable competitor, advertisers must objectively compare one or more material, relevant, verifiable and representative features of those products. Advertising which identified a competitor but did not make an objective comparison in this way was therefore not permitted. Because the claim that Froothie were knowingly making an untrue claim that their Optimum brand was the bestselling brand of juicing machines worldwide was not an objective comparison we concluded that it breached the Code.
On this point the ad breached 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. (Comparisons with identifiable competitors).
3. Upheld
The CAP Code stated that marketing communications must not discredit or denigrate another product or marketer. We considered that the claim, “Froothie, an Australian company known for their parasitic online advertising campaigns against known brands", was a direct comparison with another juicing brand and went beyond objective critical comment by implying that Froothie’s advertising practices were unprofessional and dishonest.
We therefore concluded that the claim denigrated Froothie and breached the Code.
On this point the ad breached CAP Code rule 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Imitation and denigration).
Action
The claims must not appear again in their current form. We told UK Juicers Ltd to ensure that their comparisons with competitors were objective and were not denigratory.
