ASA Adjudication on EMSc (UK) Ltd
EMSc (UK) Ltd
7 Genesis Park
Sheffield Road
Rotherham
South Yorkshire
S60 1DX
Date:
15 August 2012
Media:
E-mail
Sector:
Business
Number of complaints:
1
Complaint Ref:
A12-186181
Background
Summary of Council decision:
Four issues were investigated of which one was Upheld and three were Not upheld.
Ad
An e-mail, for a supplier of voltage optimisation products, viewed on 16 January 2012, was headed "NEWSLETTER FROM POWERSTAR ... Powerstar celebrates landmark install The recent installation of Powerstar in to Premier Inn Cambridge, marked install number 4500 of the innovative Powerstar system. We are proud that during the last 10 years we have only experienced two problems with Powerstar systems, both issues were related to the failure of the Rilton Variac controller. The Rilton Variac controller is no longer used by our organisation on our regulated output systems and we have since launched the next generation Powerstar MAX (electronic variable system, no moving parts and no maintenance), which was honoured with the Yorkshire Post Innovation award in 2011. Therefore, Powerstar maintains its 100% reliability for no failures in 4,500 system [sic]."
Issue
Power Perfector challenged whether the following claims were misleading and could be substantiated:
1. "the recent installation of the Powerstar in to Premier Inn Cambridge, marked installation number 4500 of the innovative Powerstar system";
2. "no moving parts", because they understood that the product had two large fans incorporated into the system; and
3. "we have only experienced two problems with Powerstar systems", because they were aware of more problems.
4. The complainant also challenged whether the claim "Powerstar maintains its 100% reliability for no failures in 4,500 system [sic]" was misleading, because it was contradicted by the claim "we have only experienced two problems with Powerstar systems".
CAP Code (Edition 12)
Response
1. EMSc said at the time of the ad, they had carried out 4,500 installations and provided evidence which they believed supported that claim. They provided a sample of invoices, which included an invoice for a board replacement which had been damaged in transit. They also pointed out that several of the invoices related to the supply of the Powerstar and said that in these instances a third party would carry out the installation.
2. EMSc said their system had no moving parts during normal operation. They said the fans on the system formed part of the fail safe and did not operate during normal operation.
3. & 4. EMSc said the Powerstar system had never failed. They said the two issues referred to in the ad related to the variac, a component which was not part of the Powerstar system. They said that in all bar one instance, where the Powerstar unit had been supplied with the faulty variac, the Powerstar unit had been integrated with the faulty variac by a third party. They accepted that in one instance the Powerstar had been integrated with the variac and supplied by themselves. However, they said that the failure of that system was due to overloading and not the components.
Assessment
1. Upheld
We noted EMSc had provided a number of invoices in support of the claim. However, we understood that a number of the invoices referred to by EMSc did not relate to the installation of the Powerstar unit, but to other areas of the business. We noted that several of the invoices supplied related only to the supply of the unit itself and that one invoice was for a replacement of the unit. We were therefore concerned that we had not seen sufficient evidence to demonstrate that the installation of the Powerstar unit at the Premier Inn Cambridge was installation number 4,500.
On that basis, we concluded that the claim breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation).
2. Not upheld
We considered consumers were likely to understand the claim to mean that during normal operation, the Powerstar system had no moving parts. Since we understood that the fans only operated if the system failed, we concluded that the ad was not likely to mislead on this point.
On this point, we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation) but did not find it in breach.
3. Not upheld
We noted the complainant challenged the claim because they were aware of more than two problems with Powerstar systems. We also noted the complainant believed the variac was a fundamental part of the Powerstar system and that its failure equated to a failure of the Powerstar system. However, we understood from EMSc that they manufactured only the Powerstar. We noted the ad made clear that two issues involving the Powerstar related to the failure of the variac, which we understood was not manufactured by EMSc. In conjunction with the fact that the ad was for EMSc's Powerstar product, we considered consumers would understand the claim related specifically to the product manufactured by EMSc: the Powerstar. Since we had not seen any evidence to demonstrate that the Powerstar itself had been the cause of a system failure, we concluded that the ad was not likely to mislead on this point.
On this point, we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation) but did not find it in breach.
4. Not upheld
We noted the ad made clear that the two issues involving the Powerstar related to the failure of the variac. We noted that the complainant was concerned that the claim "Powerstar maintains its 100% reliability for no failures in 4,500 system [sic]" was contradicted by the claim "we have only experienced two problems with Powerstar systems". However, as stated in Point 3, we understood that there had been no problems with the actual Powerstar system itself. We considered consumers were likely to interpret the claim "Powerstar maintains its 100% reliability for no failures in 4,500 system [sic]" to mean that the Powerstar itself had not been the cause of any system failure. Since we had not seen any evidence to demonstrate that the Powerstar itself had been the cause of a system failure, we concluded that the ad was not likely to mislead on this point.
On this point, we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation) but did not find it in breach.
Action
The ad must not appear again in its current form. We told EMSc not to claim they had installed 4,500 Powerstar units, unless they held robust substantiation to demonstrate that.
