Background
Summary of Council decision:
Three issues were investigated, of which one was Upheld and two Not upheld.
Ad description
A newsletter and website for the proposed "Penny Pot' wind farm:
a. A newsletter on the website www.keldawater.co.uk included the claim "When fully operational the facility would produce 21 megawatts of electricity per year".
b. Information on the same website under the heading "Key project facts" included "Total Installed Capacity of up to 21MW" and "Could power the equivalent of up to 10,300 homes".
Issue
The complainant challenged whether:
1. the operational claim in ad (a) was misleading and could be substantiated;
2. the use of the term "installed capacity" in ad (b) was misleading because it failed to make clear the facility was unlikely to actually produce the stated amount of energy; and
3. the claim in ad (b) that the facility "could power the equivalent of up to 10,300 homes" could be substantiated.
Response
1. & 2 Kelda Water Services Ltd (Kelda) said the claims that, when fully operational, the facility would produce 21 MegaWatts (MW) of electricity per year was correct. They said the predicted energy generation from the wind farm, based on a total Installed Capacity of 21 MW, was estimated at up to 48.5 GigaWatt (GW)-hours per year. They explained that figure was calculated using a formula that included a 'capacity factor' (or 'load factor') of 26.4% which had been taken from the five-year average (2006–2010) of The Digest of UK Energy Statistics (DUKES) on-shore wind data. They said the term "Installed Capacity" was in common usage and was used to indicate the potential for energy generation from the turbines. They said the figure of 21 MW that had been used in the ad was the maximum potential installed capacity from the seven 3-MW per turbine.
3. They said the energy estimated to be generated by the proposal had been calculated using an assumed capacity factor of 26.4% (based on DUKES on-shore wind data) and the number of homes supplied had been calculated using an annual electricity consumption of 4,700 kWh per home (which itself had been taken from DUKES data on the consumption in Harrogate during 2010). They said that, based on the initial 21 MW Installed Capacity and an average annual energy production of 48.5 GWh/year, this equated to the equivalent of up to 10,300 homes. They stated that if they had used Numerical Objective Analysis Boundary Layer (NOABL) wind data as part of the calculation, this would have resulted in a higher percentage Capacity Factor which itself would have demonstrated that, using standard industry calculations, the 'number of homes' claim used in the ad was actually an underestimate and that the number was more likely to be in the region of 11,157. They provided evidence of the NOABL data for the relevant km-square grid of the planned wind farm along with the calculations showing this wind data alongside the manufacturer’s power curve.
Assessment
1. Upheld
The ASA noted at the time the ad appeared, the proposed wind farm intended to have seven turbines with a total capacity factor of 3 MW each, resulting in a total Installed Capacity of 21 MW per year for the entire wind farm. However, we considered that the claim "When fully operational the facility would produce 21 megawatts of electricity per year" would be understood by consumers as an absolute claim that the proposed wind farm would produce 21 MW per year. As this was the Total Installed Capacity and not the amount of energy that would definitely be produced by the wind farm, we concluded that the claim was misleading.
On this point the ad (a) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
2. Not upheld
We noted the term "Installed Capacity", within the claim "Total Installed Capacity of up to 21MW" in ad (b), was commonly used in the wind farm industry and therefore it would be understood by consumers to mean that this was the maximum amount of electricity that could be produced by the wind farm if it was working at top capacity. We considered the term did not state or imply that this capacity would consistently be achieved. We therefore concluded that the claim was not misleading.
On this point we investigated ad (b) under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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) but did not find it in breach.
3. Not upheld
We considered that the claim in ad (b) would be understood by consumers as an estimate of the equivalent number of homes that would be powered by the Penny Pot wind farm when it was complete. We considered that this figure should have been calculated using accurate generation capacity data along with the average energy consumption of electricity. We noted the claim in the ad had been based on a Capacity Factor which had been reached using on-shore DUKES wind data calculations. When considering advertising claims about the regional or national use of wind energy, the ASA has previously accepted a Capacity or Load Factor based on DUKES data providing that the claim is also heavily qualified. We noted the Capacity Factor used by Kelda for the purposes of the claim in the ad resulted in a calculation which showed that the equivalent of 10,300 homes would be supplied by the planned wind farm (at that time). We noted in this case the claim was about a specific wind farm and considered that DUKES data was therefore not capable of substantiating specific energy output claims. We noted the NOABL data which was also supplied (but which had not been used in the original calculation) demonstrated that the Capacity Factor used as the basis of the claim had underestimated the energy output and therefore the claim about the equivalent number of homes supplied by the wind farm was also an underestimate. We therefore concluded that the claim had been substantiated and the ad was not misleading.
On this point we investigated ad (b) under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) but did not find it in breach.
Action
Ad (a) should not appear again in its current form.
