Background
Summary of Council decision:
Four issues were investigated, of which three were Upheld and one Not upheld.
Ad description
A website (ad (a)) for Goodwin Development Trust, www.oxypod.me,and a brochure (ad (b)), seen in June 2015, made various claims for the Oxypod, a device that could be fitted to a central heating system.
Issue
Tadpole Energy Ltd challenged whether the following claims were misleading and could be substantiated:
1. "Save up to 30% on your central heating bills" (ad (a)) and "an energy saving product that can reduce heating bills by up to 30%" (ad (b));
2. "... the Oxypod will deliver much more effective results by preventing corrosion" in ad (a); and
3. the claims in ad (a), that the Oxypod would remove dissolved air from a central heating system and the benefits it was claimed would result from that..
4. Tadpole Energy, who understood Goodwin were a commercial organisation, also challenged whether the references to Goodwin Development Trust misleadingly suggested that Goodwin was not a commercial organisation.
Response
1. Goodwin Development Trust (Goodwin) referred the ASA back to their response to a similar issue in a previous investigation. They said the brochure (ad b) was withdrawn from circulation in December 2014 and no further copies would be distributed. They also supplied three further examples of installations where the Oxypod had been used. They said they were willing to amend the claims in future to refer to “significant” savings rather than “up to 30%.”
2. Goodwin said the action of the Oxypod caused nitrogen and oxygen molecules to bond, creating buoyancy sufficient to release them from the water system. They said it therefore followed that more air was released in such a process than with other devices that released oxygen only, but not nitrogen. They said a reduction of air in the system had been shown to reduce corrosion. They believed much material existed in the public domain which discussed the effect of air in domestic heating systems and how it caused corrosion. They supplied a link to an article published by the Chartered Institute of Building Services Engineers as an example. They supplied two reports on tests carried out by a testing house which they believed showed that the Oxypod removed air from within a domestic heating system and eliminated the formation of corrosion. They believed prevention of corrosion in a system was an obvious benefit and that radiators that did not contain air would be more efficient. They said the tests were not themselves intended to show potential energy savings but to show that the Oxypod removed air from the system. Goodwin said the tests had been conducted in a laboratory because their customers wanted to see independent test data before installing the product. They supplied a thermal imaging report of radiators before and after fitting an Oxypod, which they believed demonstrated improved heat distribution across the radiators and the benefits that resulted from that. They said a patent application had been made and was expected to be granted in the near future.
3. Goodwin supplied a report on tests carried out by a test house which they believed showed that the Oxypod removed air from within a domestic heating system. They believed the thermal imaging report and patent application referred to above were also relevant to support the claim. They said that, as the water circulated around the system more quickly, it returned to the boiler at a higher temperature than before the Oxypod was fitted. They said that meant the water did not need to be heated as much during the next boiler burn cycle. Consumers could therefore turn down the temperature of their boiler and reduce energy consumption, which they believed was in line with the results of the case studies supplied in support of point 1 above.
4. Goodwin supplied copies of audited and signed statutory accounts for the year ending 31 March 2014 for the Goodwin Development Trust (a registered charity) and Goodwin Community Trading Ltd, which they said was a wholly owned subsidiary of the Trust. They said Goodwin Community Trading Ltd was the trading arm for certain commercial operations supported by Goodwin Development Trust, such as its catering supplies operation and the sale of the Oxypod. They said any profits generated by Goodwin Community Trading Ltd were gifted back to Goodwin Development Trust to fund further charitable work within the group.
Assessment
1. Upheld
The ASA considered the claims suggested that the device would reduce the fuel bills of all consumers who fitted it to their central heating system, with a proportion seeing a 30% reduction. To support the claims, we considered Goodwin needed to hold comprehensive evidence that took into account typical homes across the UK and which demonstrated that factors such as the difference in length and severity of individual winters, the way in which homes were built and insulated and the way in which people used their central heating had been taken into account, and which showed how use of the product led to a reduction in central heating bills. Goodwin had initially supplied information compiled by five customers who had had the device fitted. The information reported that the customers' boilers had used 26, 29.51, 29.5, 28.73 and 40.45% less gas respectively after the device was fitted. However, the ASA noted that the properties where the device had been fitted included an animal centre, a community centre, a four-storey, terraced house, a one-bedroomed flat and a three-storey, terraced house. The gas consumption had been compared over two consecutive winters, one before the device was fitted and one after. Brief details only were supplied of the further three examples, which related to a cemetery office, a park building and an ambulance station and which reported energy saving figures of 27%, 25% and 20% respectively. Goodwin said the calculations had taken into account any difference in climate between the winters before and after the Oxypod was fitted, but no detailed information explaining how that had been done was supplied. Because the reports had involved only a limited number of scenarios and did not appear to have taken the factors listed above into account, we considered the evidence supplied by Goodwin was not adequate to support the claims. We welcomed Goodwin’s proposal to use a less specific claim in future but we considered the evidence supplied was not adequate either for an "up to 30%" saving claim or a claim that significant savings could be achieved. Because the investigated claims had not been substantiated, we concluded that they were misleading.
On this point ads (a) and (b) breached 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).
2. Upheld
We considered the claim suggested that the Oxypod would prevent corrosion within a central heating system and that benefits, in heat output and fuel efficiency for example, would follow from that. We noted the explanation Goodwin had given. Our understanding was that air was a factor that contributed to corrosion in central heating systems. To support the claim, we considered Goodwin needed to hold evidence that showed that the Oxypod prevented corrosion in normal use and produced more effective results because of that. We noted that the testing that related to the removal of air took place on a simulated central heating system and looked at removal of air over a single two-hour period. There was no repeat testing or subsequent testing in a real life situation and no testing that considered whether the use of the Oxypod prevented corrosion and produced more effective results because of that. Concerning heat output, the details supplied for the thermal imaging report were brief, and related to a single installation only. No information about how the assessment had been conducted was given (i.e., whether it had taken place in a laboratory or what kind of real life situation). It reported that, of the six radiators in the installation, an improvement in temperature distribution had been found in four of them. Our understanding was that there were strictly defined methods by which the performance of radiators (i.e. heat output) was measured which applied to all radiators sold in Europe. We considered that the thermal imaging report of a single installation was by itself not sufficient to demonstrate that the Oxypod would provide improved heat output from radiators and that, to support the claim, a more detailed assessment than the one referred to in the testing would need to be conducted. Because Goodwin had not supplied adequate evidence to support the claim, and the understanding we considered consumers would take from it, we concluded that it had not been substantiated and was misleading.
On this point 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) 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).
3. Upheld
We considered the claim suggested that the Oxypod would remove dissolved air from a central heating system and that the benefits listed in the ad of reduced energy usage and running costs and improved performance would follow from that. We noted that the conclusions of the report were that dissolved oxygen was removed to a much greater degree when the Oxypod was fitted, but that the testing found no measurable advantages in terms of temperature or flow rate. The testing found an approximate 1% reduction in the amount of gas used when the Oxypod was fitted but qualified that with the observation that the result obtained with the Oxypod was only marginally better than the result obtained without it and that it was difficult to rule out statistical variance with only one set of tests. It concluded that a statistical analysis would be required over several tests to be certain of this value. Our own concerns regarding the information Goodwin had supplied about heat output are set out in point 2 above. We considered therefore that the information Goodwin had supplied did not support the benefits that were claimed in the ad arising from the removal of dissolved air from a central heating system. Because Goodwin had not supplied adequate evidence for the claim, we concluded that it had not been substantiated and was therefore misleading.
On this point 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) 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).
4. Not upheld
We noted that ad (a) contained a section headed "About Goodwin Development Trust" which described the organisation as a "charitable organisation" which employed local people delivering services across Hull. It also described it as having "an entrepreneurial spirit, organisational flexibility and a business approach" and stated "We are a not-for-profit organization - so all monies generated from sales of the Oxypod will be ploughed back into furthering our charitable objectives and developing initiatives to significantly improve the quality of life for the most vulnerable people in society". We noted that ad (b) contained a section headed "Owned and developed by a charitable Trust" in which text stated "The Oxypod is jointly and equally owned by the Goodwin Development Trust and the Oxypod's inventor ... There are no shareholders ... All profits will be ploughed back into furthering the Trust's charitable objectives and developing initiatives to improve the quality of life of the most vulnerable people in society". We considered those descriptions suggested that the organisation aimed to function in a business-like way but that any profits would go directly to its charitable objectives and community aims. We considered that was likely to be a factor for consumers when deciding whether or not to do business with Goodwin.
We noted that the copies of audited and signed statutory accounts Goodwin had supplied identified Goodwin Development Trust as a registered charity with a wholly owned subsidiary, Goodwin Community Trading Ltd, any profits of which were gifted back to Goodwin Development Trust. We noted that the ads contained references to Goodwin Development Trust, but considered readers were likely to recognise that the ads were commercial in nature in that they promoted a product for sale and that, by enquiring about an Oxypod, they would be entering a situation that could result in a commercial transaction. Given that context, together with the registered charity status of Goodwin Development Trust and its relationship with Goodwin Community Trading Ltd, we concluded that the references to Goodwin Development Trust were unlikely to mislead.
On this point we investigated ads (a) and (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 them in breach.
Action
The ads must not appear again in their current form. We told Goodwin Development Trust not to claim that the Oxypod lowered central heating bills, prevented corrosion or removed dissolved air from a central heating system unless they held adequate evidence.
