Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Ads from Ecotricity about their Electric Highway charging stations for electric cars:
a. An email sent to an existing Electric Highway member on 7 July 2016 stated “I’m writing to you as a member of the Electric Highway to let you know of a significant change to our service. After five years of providing charging for free, we’re moving to a ‘charging for charging’ model … P.S. Nearly forgot … the Electric Highway will still be free to use for Ecotricity energy customers - so if you’re not already a customer, now is a pretty good time to switch. You’ll not only get free use of our Electric Highway, we’ll give you a discount on your energy just for having an electric car … How do I continue to get free charging? Step 1: Switch your energy to Ecotricity … Enjoy free charging! That’s it! You’ll receive free charging once your account goes live … and it will remain free for as long as you have a live energy account with us”.
b. An email newsletter received on 9 August 2016 included text which stated “After five years, 30 million miles and £2.5 million worth of free travel - Ecotricity will finally begin charging electric car drivers for using Britain’s most comprehensive car charging network - the Electric Highway. A rapid charge of up to thirty minutes will cost £6, significantly less than the cost of an equivalent petrol or diesel car. The network will remain free for Ecotricity domestic energy customers - subject to our fair use policy”.
c. The Ecotricity website seen in August 2016 included a web page headed “For The Road” and text stated “The Electric Highway is changing. Our Electric Highway enables electric vehicle drivers to travel the length and breadth of Britain. The most comprehensive charging network in Europe, we have around 300 electricity pumps in Britain, covering the motorway network and beyond. After five years of providing EV charging for free, we've moved to a 'charging for charging' model so that we can continue to improve and expand the network. We've taken a lot of feedback from EV drivers in order to arrive at the right pricing model. We've decided that a simple flat fee of £6 for a 30 minute fast charge strikes the right balance. The network will continue to be free for Ecotricity energy customers, subject to our fair use policy”. Text under the header “Using The Electric Highway For Free” stated “The Electric Highway is free to use for Ecotricity energy customers” and linked to another webpage giving further information.
Issue
The ASA received nine complaints:
1. Seven complainants challenged whether the claim “A rapid charge of up to thirty minutes will cost £6, significantly less than the cost of an equivalent petrol or diesel car” in ad (a) was misleading and could be substantiated.
2. Three complainants challenged whether the references to free charging for Ecotricity customers were misleading, because they understood that Ecotricity customers were limited to 52 free charges a year.
Investigated under CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.7 (Substantiation), 3.9 (Qualification), 3.33 (Comparisons with identifiable competitors) and 3.39 (Price comparisons).
Response
1. Ecotricity Group Ltd stated that the claim “A rapid charge of up to thirty minutes will cost £6, significantly less than the cost of an equivalent petrol or diesel car” was based on data on the three most popular models of electric car in the UK, as published by their manufacturers. This included information about the ability of the various cars to charge within 30 minutes and their battery capacity. They also provided an explanation of how they had calculated the cost per mile for each vehicle based on this data. Ecotricity stated that, together, the manufacturers of the three selected vehicles represented a significant portion of the electric vehicle market. They said they had chosen mid-range models of each vehicle in order to prevent distorting the average figure in favour of electric cars.
They then calculated the average cost per mile for both petrol and diesel vehicles in the UK, based on figures from government sources on the typical miles per gallon achieved by these vehicles, the average age of vehicles in the UK and the average fuel prices for petrol and diesel. They provided links to their sources and an explanation of how they had calculated an average figure using this information. They stated that the Electric Highway’s rapid charge points were located at motorway service stations, where fuel prices tended to be higher. Therefore, they had chosen the more conservative, average fuel price figure in order to avoid bias in favour of electric vehicles. Ecotricity believed that the comparison was based on a representative cross-section of the electric vehicle market, and as such was not misleading.
2. Ecotricity said that on 7 July 2016 they had announced that they would begin charging for use of the Electric Highway charging points, and they also announced that use would remain free for Ecotricity customers. There was then a three-week transition period, during which they changed the hardware of all electricity pumps and the payment model. During that time, some of the pumps were free to use and some charged for charging. On 12 July, they introduced a fair use policy for Ecotricity customers, limiting them to 52 free charges per year and specified this in the revised terms and conditions on the Electric Highway app. The app was needed by all users in order to access the service. They said that all subsequent communications had made clear that a fair use policy applied. Ecotricity stated that the fair use policy was put in place to prevent the abuse of the service by the 5% of customers who used it excessively. They chose 52 charges as the fair use limit because it ensured that the majority of customers would be unaffected. They said that, according to their data, 94.2% of customers would still be able to pay nothing for charging even with the fair use policy.
Assessment
1. Upheld
The ASA noted that ad (b) stated “A rapid charge of up to thirty minutes will cost £6, significantly less than the cost of an equivalent petrol or diesel car”. We considered that consumers would understand this claim to be based on a comparison between the average cost per mile of all electric cars used by UK consumers and the average cost per mile of all petrol and diesel cars used by UK consumers. While the claim referred to “an equivalent petrol or diesel car”, the wording was vague and there was no further information on what Ecotricity considered to be an “equivalent” vehicle. Therefore it did not serve to clarify the basis of the comparison. We noted that there was no information about the basis of the claim or any indication of where customers could find that information included in the ad.
We understood that Ecotricity had based the claim on the average range after a 30-minute charge of the three most popular models of electric car sold in the UK (which they considered to be representative of the market as a whole), compared to the average cost per mile for petrol and diesel vehicles. However, we noted there was a large range of electric cars available in the UK, and we had not seen evidence to demonstrate that the performance of the selected vehicles was representative of all electric cars used by UK consumers, as implied by the ad.
We noted that Ecotricity had based their average cost per mile for petrol and diesel vehicles on the combined average weekly price of both types of fuel over the first half of 2016, which came to 105.5p per litre. Based on a 2014 survey by the Society of Motor Manufacturers and Traders, they determined that the average age of a vehicle in the UK was 7.7 years. They then took the combined average new car fuel consumption for both petrol and diesel vehicles from 2009 (seven years ago) and used this to calculate an average cost per mile of 10.3p. We noted that there were significant differences between the individual average figures relating to petrol and diesel, and considered that taking the mean of the two would not necessarily reflect the real-life experience of consumers. Furthermore, we had not seen evidence that the average miles per gallon of a car that was new in 2009 was sufficiently representative of the performance of all petrol and diesel cars in the UK motor parc. We also noted that ad (b) referred to the cost of “an equivalent petrol or diesel car”, which suggested that the comparison related to vehicles that shared certain characteristics with electric vehicles, although we understood that Ecotricity had actually based the claim on a comparison against all UK petrol and diesel cars.
Overall, we considered that the ad failed to make the basis of the comparison clear to consumers, and that, in the absence of sufficient qualification, consumers would understand that they were comparing the cost of running an electric vehicle against that of all petrol and diesel vehicles in the UK market. As we did not consider that the implied claim had been adequately substantiated, we concluded the ad was misleading.
On this point, ad (b) 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),
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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification),
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons with identifiable competitors) and
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
(Price comparisons).
2. Upheld
We noted that ad (a) stated “The Electric Highway will still be free to use for Ecotricity energy customers”. We considered that customers would understand this to mean that Ecotricity energy customers would not have to pay to use the Electric Highway charging points. However, we understood that customers were in fact limited to 52 free charges per year, which was a significant limitation. We noted that ad (a) stated “That’s it! You’ll receive free charging once your account goes live”, which reinforced the impression that there were no limitations to the free charging. The email was sent to customers on 7 July. We understood, however, that Ecotricity had introduced the fair use policy on 12 July, and therefore there was no information within the body of the ad or in the terms and conditions about this limitation at the time the email was seen. Ads (b) and (c) were seen after the fair use policy was introduced. Ad (b) stated “The network will remain free for Ecotricity domestic energy customers - subject to our fair use policy”, but did not provide a link to the terms and conditions. Ad (c) stated “The Electric Highway is free to use for Ecotricity energy customers subject to our fair usage policy”. A link at the bottom of the page under a heading stating “Using The Electric Highway For Free” directed viewers to a second page, which in turn linked to an FAQ page that included an explanation of the 52 charges limit. While we noted that the ad provided consumers with a means of accessing the qualifying information, it was located at some distance from the initial claim. For the reasons outlined, we considered that the ads did not make the significant limitation sufficiently clear to consumers. We acknowledged the advertiser’s comments that only 5% of their customers used the Electric Highway service for more than 52 charges a year. However, we considered that the limitation on the number of charges that consumers could obtain without paying contradicted the claim that the charging was free for Ecotricity energy customers. We therefore concluded that the ads were misleading.
On this point, ads (a), (b) and (c) 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) and
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
Action
The ads must not appear again in the forms complained about. We told Ecotricity Group Ltd to ensure that they did not misleadingly omit the basis for comparative claims and to ensure that such claims were adequately substantiated. We also told them to ensure that they made significant limitations clear to customers and that qualifications did not contradict the claims they related to.
