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ASA Adjudication on Ergoflex Ltd

Ergoflex Ltd

2 Maling Court
Union Street
Newcastle Upon Tyne
NE2 1BP

Date:

21 March 2012

Media:

Internet (on own site)

Sector:

Household

Number of complaints:

1

Complaint Ref:

A11-169172

Background

Summary of Council Decision:

Two issues were investigated, both of which were Upheld.

Ad

Two websites, for a mattress retailer, viewed on 18 August 2011:

a. The website ergoflex.co.uk stated "Award winning mattresses from only £229". Underneath the text "As seen in", the logos for the following media appeared in rotation: The Mail on Sunday, the Telegraph, The Observer, the Daily Mail, House Beautiful, The Sunday Times, 4 Homes, and Channel 4.

A page headed “Gallery” featured photographs of a range of beds. Each photograph had the Ergoflex name and logo imprinted across it.

b. The website ergo-flex.eu stated "Award winning visco elastic memory foam mattresses". On the left-hand of page, text stated "MEMORY FOAM BUYERS GUIDE BEST BUY *****" and "as seen on TV".

Issue

The complainant challenged whether the claims:

1. that the mattresses had won awards were misleading and could be substantiated; and

2. “As seen in” followed by the media logos in ad (a), and the claim “as seen on TV” in ad (b), misleadingly implied that the mattress had featured in editorials or product reviews in those media.

CAP Code (Edition 12)

Response

1. Ergoflex said the references to awards related to a review of their product on an independent review website. On the home page of the website, text stated “Check out our Current 5 Star Award Winner” and a box underneath, which stated “MEMORY FOAM BUYERS GUIDE BEST BUY *****” linked to a review of an Ergoflex mattress. Text at the end of the review stated “Taking every aspect into account ... the Ergoflex memory foam mattress receives our 5-star award.” Under the text “AWARD WINNER” a rosette-shaped icon had the text “BEST BUY” written on it.

2. Ergoflex provided copies of pages from The Mail on Sunday’s ‘You’ magazine, the Telegraph’s property pages, the Observer Magazine, the Daily Mail, House Beautiful magazine, the Sunday Times ‘Times Magazine’ and the Guardian, which all featured Ergoflex’s products. The newspaper and magazines were published between September 2008 and April 2011, with the majority appearing around April 2009. They later confirmed that with the exception of the feature in House Beautiful magazine, they had paid the publications, or in some cases intermediaries, for their products to appear in the publications.

Ergoflex provided a copy of an e-mail sent to them in October 2008 from the Producer of ‘Deal or No Deal Christmas Stars’, a programme broadcast on Channel 4, in which they requested the donation of an Ergoflex mattress for one of the contestants on the programme. They also provided a copy of an e-mail sent to them in October 2009 by the production company that produced ‘Help! My house is falling down’, a programme broadcast on Channel 4, in which they provided information about an episode. The e-mail, and a further letter which was not specifically addressed to Ergoflex and appeared to be a generic letter sent to suppliers and contractors, stated that similar property programmes on Channel 4 were featured on the website 4Homes, including a page displaying the web links and contact details of companies that had supplied products or carried out work as part of the programme. Ergoflex also provided a link to the website of ITV’s ‘This Morning’, which included video of its ‘Get the Look For Less’ segment, which was broadcast in July 2011. The webpage described a bedroom makeover, and under the heading “Products”, text stated “Memory Foam Mattress ErgoFlex”. The bed was shown during the video but no reference was made to the mattress.

Ergoflex said the references in the ads were expressly limited to the products being “seen in” or “seen on” the relevant media. They said the websites did not refer to the products being endorsed or recommended by the relevant newspapers, magazines and broadcaster, but merely iterated the fact that the products had appeared in the media listed and consumers had the opportunity to see the product in those media. They said that if they had intended to indicate to consumers that their product had featured in reviews or editorials they would have used explicit language to that effect, and they considered that the average consumer would be able to distinguish between the phrases “seen in” and “recommended by”.

Assessment

1. Upheld

The ASA considered consumers would interpret the claim to mean that Ergoflex’s mattresses had won an award, in competition with similar products under set rules and criteria, given by an independent organisation. Whilst we noted the review website referred to Ergoflex as an award winner, we noted we had not seen evidence that Ergoflex’s mattresses had won an award, in competition with similar products, given by an independent organisation. Furthermore, we considered that a positive product review did not constitute an “award” as consumers would understand it. We concluded the claim was misleading.

On this point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation).

2. Upheld

We acknowledged that neither ad explicitly stated that Ergoflex products had featured in product reviews or editorials in the listed media. We considered, however, that consumers would be unlikely to interpret the claims to simply mean that Ergoflex products had appeared in those media because they had paid for an advertisement to appear. Rather, we considered consumers would understand the claim “As seen in” to mean that the newspapers, magazines and broadcasters listed in ad (a) had taken an editorial decision to feature Ergoflex products, and that those editorial decisions therefore constituted an independent endorsement of the products by those media organisations. Similarly, we considered that consumers would understand the claims “as seen on TV” in ad (b) to mean that the makers of a TV programme or programmes had taken an editorial decision to feature Ergoflex products, thereby constituting an independent endorsement. We also considered that consumers would understand the claims “As seen in” and “as seen on TV” to mean that, where those products were featured, they would be readily identifiable as Ergoflex products.

We noted that, with the exception of the feature in House Beautiful magazine, Ergoflex had paid for their products to appear in the publications, either directly to the publisher or to intermediaries. Because we considered that consumers would understand the claim “As seen in” to mean the publications had taken an editorial decision to feature Ergoflex’s products, but that was the case only in relation to House Beautiful magazine, we concluded the claim was misleading in relation to the products’ appearance in The Mail on Sunday’s ‘You’ magazine, the Telegraph’s property pages, the Observer Magazine, the Daily Mail, the Sunday Times ‘Times Magazine’ and the Guardian.

We understood the claims “as seen on TV” and “As seen in ... Channel 4 [and] 4Homes” related to the programmes ‘This Morning’, ‘Deal or No Deal Christmas Stars’ and ‘Help! My house is falling down’. We noted the listing of Ergoflex on the website of the ITV programme ‘This Morning’, and the correspondence from the production companies of the Channel 4 programmes ‘Deal or No Deal Christmas Stars’ and ‘Help! My house is falling down’. We understood the claims were therefore based on the editorial decisions of the programme makers to include Ergoflex products in those programmes. However, we noted the Ergoflex mattress was not specifically referenced during the ‘This Morning’ segment, and that we had not seen evidence which demonstrated that the Ergoflex mattress was specifically referenced during the Channel 4 programmes. We considered that the mattresses which had appeared in the programmes were not, therefore, readily identifiable as Ergoflex products. We concluded that the logos of Channel 4 and 4Homes in ad (a) following the claim “As seen in”, and the general claim “as seen on TV” in ad (b), were misleading.

On this point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation).

Action

Ads (a) and (b) must not appear again in their current forms. We told Ergoflex not to state or imply their products had won awards unless those products had won an award in competition with similar products under set rules and criteria, given by an independent organisation. We told Ergoflex not to make claims which implied that publications or broadcasters endorsed their products when those products had not featured in the relevant media as a result of independent editorial decisions, and where those products were not readily identifiable as Ergoflex products.

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