Ad description
a. A magazine ad for a range of hygiene products was headed "Kind and gentle". It stated "Protect your baby from germs with Tommee Tippee's Closer to Nature hygiene range". It also stated "Not only does it offer long-lasting powerful protection, it's also free from alcohol and bleach, making it safe for you and your baby" and "The products, which contain Byotrol, provide protection from germs for up to six hours on skin and 24 hours on hard surfaces, offering long-lasting protection against 99.9% of bacteria and viruses". It also stated "Bleach and chlorine free, it's proven to kill E.coli, listeria, salmonella and MRSA".
b. A website ad for one of the product's on the range was headed "Closer to Nature Surface Spray". It stated "Alcohol and bleach free, leaves no taint". It also stated "Proven to kill MRSA, E.coli, Listeria, Salmonella, Campylobacter, Staphylococcus and Candida albicans (which can cause thrush)".
Issue
The complainant challenged whether:
1. the claim "Kind and gentle" ad (a) was misleading because the ad featured a biocidal product;
2. the claim "Closer to Nature" in both ads was misleading, because he believed the product contained ingredients that were hazardous to the environment;
3. the claim "free from alcohol and bleach, making it safer for you and your baby", in ad (a), was misleading because, he believed, in order for the cleaning products to work for 24 hours, residue must remain on the surfaces and could then be ingested by the baby;
4. the claim "offering long-lasting protection against 99.9% of bacteria and viruses", in ad (a), was misleading because he believed the products were not effective against bacterial spores and could therefore not be used for sterilisation of bottles;
5. the claim "leaves no taint", in ad (b), was misleading because he believed Byotrol must remain on the surface in order for it to work for 24 hours as claimed.
Response
1. Jackel International Ltd (Jackel) said that the words "Kind and gentle" were intended as a "headline" and not a specific product claim. They also said that the rationale for the “Kind and gentle” claim was clearly explained in a bubble containing text below the headline which stated "Closer to Nature's hygiene range contains no bleach or alcohol, and kills 99.9% of bacteria and viruses".
2. Jackel stated that "Closer to Nature" was a "sub-brand" and not intended as a product claim. They did not believe that the name implied that the product was natural. Jackel said that the concept of “Closer to Nature” was supported because the concept of caring for a newborn was itself a natural maternal instinct. They said that they should have written “Closer to Nature” as a registered trademark throughout the piece and confirmed that in future they would ensure that the claim was printed as such, in order to ensure that it was seen as a sub-brand and not a specific product claim.
3. Jackel said the products were free from alcohol and bleach and that this was supported by toxicology reports, which they submitted. They also said that they did not claim that the product was residue free and they ensured that the levels of the residue were well within permitted safe levels. They submitted toxicology reports which they said supported this.
4. Jackel submitted test reports which they said supported the 99.9% kill rate claim after five minutes on bacteria and viruses. They said the reports also showed that the products were still effective after six hours for the hand gels and 24 hours for the steri-fluid product. They also submitted the product labels, which contained instructions on how to use the products.
5. Jackel submitted taint tests which they said showed that the products did not have the potential to taint.
Assessment
1. Upheld
The ASA noted that Jackel said they did not intend "Kind and gentle" as a specific product claim. However, we also noted that, in ad (a), the claim appeared beneath a picture of a pair of woman's hands cleaning a soother for a smiling infant and with the surface wipe product prominently displayed. In the wider context of the ad, we also considered that the headline "Kind and gentle", because it headlined an ad for a range hygiene products and was sub-headed by "Protect your baby from germs with Tommee Tippee's Closer to Nature hygiene range", would be considered a product claim for the entire range of products.
We noted that the products on the range contained Byotrol, a biocide. We also noted that, under Regulation 33 of the Biocidal Products Regulations 2001 (as amended) (BPRs), there was a requirement that ads for biocidal products did not refer to the biocidal product in a manner likely to mislead in respect of the risks of that biocidal product and that ads for biocidal products did not contain the descriptions "low-risk biocidal product", "non-toxic or "harmless", or similar descriptions.
We understood that the “Closer to Nature” was a range of biocidal products. We also considered the claim "Kind and gentle" was likely to be understood by consumers as a product claim for the entire range and, in that context, were concerned that it created the impression that biocidal products carried no risks at all to humans. We noted that, under the BPRs, ads for biocidal products could not refer to the biocidal products as "non-toxic", "harmless" or similar. We concluded that the text "Kind and gentle" in the context used in ad (a) misleadingly implied the product carried no risks and therefore breached the Code.
On this point the ad breached 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).
2. Not upheld
We noted that Jackel considered that “Closer to Nature” was not a specific product claim. We noted that ad (a) stated "Closer to Nature's hygiene range contains no bleach or alcohol, and kills 99.9% of bacteria and viruses" and "Closer to Nature hygiene products offer mums the reassurance that soothers, bottles, and even hands, are not only clean, but protected from germs". We also noted that ad (b) stated "Did you know, Closer to Nature surface spray kills and controls germs for up to 24 hours". We considered that "Closer to Nature" was a product claim. We noted, however, that when the claim "Closer to Nature" was used in either ad, it was within the context of creating a hygienic environment without the use of bleach or alcohol. We did not consider that either ad used the claim "Closer to Nature" in such a way as to imply that it was a wholly natural product or safe for the environment without qualification. Because of this we concluded that the ads did not breach the Code on this point.
On this point we investigated the ads 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
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration) but did not find them in breach.
3. Upheld
We noted that the complainant believed that a residue left by the products on surfaces could be ingested by the baby, causing the product to be unsafe. We considered the claim "free from alcohol and bleach, making it safer for you and your baby" in ad (a) implied that the product was harmless. We noted again that such descriptions for biocidal products were prohibited by the BPRs because they could mislead the consumer in respect of the risks of that product to humans, animals or the environment. We considered that describing the product as safe or harmless could lead to consumers using more than the recommended amount of the product, which could be dangerous.
Because we considered that ad (a) implied the product was harmless in all circumstances, we concluded that the ad was misleading and had breached the Code.
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.
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).
4. Not upheld
We noted that ad (a) claimed that the products offered "long-lasting protection against 99.9% of bacteria and viruses". We noted that the tests submitted by Jackel demonstrated kill rates of at least 99.9% on the bacteria and viruses tested, and we understood from our expert that the bacteria and viruses used in the test were appropriately chosen as those most likely to affect people in their homes.
We noted that the complainant had challenged the products' ability to destroy bacterial spores and believed that this made the steri-fluid unsuitable for sterilising a baby's bottle. We noted that for one species of bacteria featured in the test, the product required time to achieve the 99.9& kill rate. We also noted that both ads stated "Always read the label and product information before use". We noted that the product information instructed users to leave bottles in the steri-fluid for a minimum of 15 minutes and we understood that the product would achieve the 99.9% kill rate in this time. We noted that the label for the surface spray instructed users to spray the product onto the surface, wipe over with a clean cloth and "Allow to dry. No need to rinse". We also noted that the labels for the hand gels also stated that the product should be rubbed into the hands until dry and that there was no need to rinse. We considered that, when used as instructed, the products would achieve the claimed kill rate.
We noted that Jackel submitted tests which showed that the sterilisation fluid was still active after 24 hours and continued to achieve a kill-rate of 99.999%. We also noted that the hand gel was still active after six hours.
We considered that the evidence submitted by Jackel demonstrated that the products achieved a kill-rate of at least 99.9%. We noted that for a particular bacteria the product took time to achieve this kill-rate; however we also noted that the product did in time achieve the claimed kill-rate and also that the products were shown to be effective over time. We therefore concluded that the claim "offering long-lasting protection against 99.9% of bacteria and viruses", in ad (a) was substantiated and not in breach of the Code.
On this point we investigated ad (a) point 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
3.11
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.
5. Not upheld
We noted that ad (b) claimed that the product "leaves no taint". We understood that the taint tests submitted by Jackel showed that the products were statistically unlikely to leave a taint on food that had been on contact with the traces of the products left behind on hands and surfaces. We therefore concluded that the claim "leaves no taint" 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.
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) 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.
Action
The ads must not appear again in their current form.
We told Jackel not to make claims for biocidal products that were prohibited by the BPRs.
