Background

Summary of Council decision:

Three issues were investigated, all of which were Not upheld.

Ad description

The website www.vortexenergysaver.com, for the Vortex Energy Saver device for central heating systems being sold by Sold on Renewables LLP, made claims and contained test reports relating to its efficiency and testimonials of people and organisations who had used the device. Text stated "Vortex Energy Saver in its present form has been on the market since 2008".

Issue

Goodwin Community Trading, who manufactured and supplied a competitor product, challenged whether the principle of using:

1. the product testimonials;

2. the efficiency claims made in the testing data; and

3. the claim "Vortex Energy Saver in its present form has been on the market since 2008" was misleading, because they understood they related to a previous model.

Response

1., 2. & 3. Sold on Renewables supplied a letter from Tadpole Energy, the original retailer of the device. The letter stated that the Vortex Energy Saver was sold by Sold on Renewables under licence from Tadpole Energy and that its specifications were unchanged from the original device sold by Tadpole Energy. Sold on Renewables said that the device had not been modified since it came on to the market in 2008. They said the same production line made all the units, with some being supplied to Sold on Renewables and some going to Tadpole Energy, who also sold the device under the Tadpole Energy name. Sold on Renewables submitted copies of the testimonials and test reports which had been supplied to them by Tadpole Energy. They said they had received legal advice on marketing the device. The advice was that it was legitimate for them to refer to the testimonials and test results as long as the specifications of the device were unchanged. They said they had been advised to state that the Vortex Energy Saver device was the same as the Tadpole, and so had included that information on the footer of every case study and in the product brochure.

Assessment

1., 2. & 3. Not upheld

The ASA noted that Goodwin was not concerned with the factual basis of the testimonials and substantiation for the claims relating to the efficiency of the device and the length of time for which it had been on the market, but with whether evidence obtained for the device under one name could be considered substantiation for claims made for it under a different name. Goodwin considered that was material information that needed to be stated in Vortex's ads so that consumers could be aware that they had chosen to rename and rebrand their product. We therefore did not look into the factual basis of the testimonials and substantiation.

The correspondence supplied by Sold on Renewables showed that the product with the brand name Vortex Energy Saver was the same as the original Tadpole product manufactured by Tadpole Energy and supplied to Sold on Renewables. Sold on Renewables had been given rights to rebrand the device and to market it without any change in specification. The correspondence stated that test reports, case studies, sales and marketing literature and feedback from customers would relate to the Tadpole product but would refer to it under the brand name Vortex Energy Saver. The test reports, case studies, etc. had been provided to Sold on Renewables by Tadpole Energy with their full authority for their use.

We noted that the ad contained a number of claims relating to efficiency savings that would be obtained by fitting the device. We noted that the tests had been commissioned by the original manufacturer and retailer of the device and dated back to that time, but that there had been no change to the specification of the device since then. We considered that the testimonials and substantiation still related to the product as sold and that to base claims for the Vortex Energy Saver on them was not in itself materially misleading to consumers. We considered the "in its present form" claim would be understood as referring to the specifications of the device, which had not changed since the product came on to the market. For the reasons given, we concluded that the use of the testimonials and claims was not misleading.

On points 1., 2. and 3. we investigated the ad under CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  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  3.46 3.46 Testimonials must relate to the advertised product.  (Testimonials) but did not find it in breach.

Action

No further action necessary.

CAP Code (Edition 12)

3.1     3.3     3.46     3.7    


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