Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The likely interpretation of a ‘number 1’ claim will depend on the product or service advertised and the context in which the claim appears. Marketers intending to make a ‘number 1’ claim should consider how consumers are likely to interpret the claim in the context of the ad. Unless the claim is likely to be understood to have another meaning in the context of the ad, or the meaning is ambiguous, the ASA is likely to interpret ‘number 1’ claims in the same way as ‘best-selling’ or ‘leading’ claims.
The CAP Code requires advertisers to hold documentary evidence to substantiate claims that consumers are likely to regard as objective and that are capable of objective substantiation (Rule 3.7). Additionally, any comparisons with identifiable competitors must be verifiable and comply with other relevant rules (Rules 3.33 – 3.37). See also Comparisons: Identifiable competitors and Comparisons: General
How will consumers interpret the claim?
Is sales data always required?
How will consumers interpret the claim?
There may be situations in which the ASA would interpret a ‘number 1’ claim as being an obvious exaggeration (puffery), or a claim which is unlikely to be taken literally (Rule 3.2). See Types of claims: puffery and expression of opinion. Yet in practice, ‘number 1’ claims will almost always be regarded as objective comparisons.
The ASA has considered multiple unqualified ‘number 1’ claims to mean that the advertised product or service is the best-selling on the market. For example “#1 World’s Live-Games Provider” (ASTOK Ltd, 15 April 2020), “the UKs [sic] No.1” (Skinny Tan, 18 October 2017) and “The UK’s number 1 breakdown service provider” (AA Ltd, 20 July 2022).
Some “number 1” claims are likely to have an alternative meaning to consumers, because of the context in which they appear, or because they are qualified. For example, the ASA said consumers would interpret “BOXT are also rated Britain’s number one heating company on Trustpilot” as a factual statement about the advertiser’s Trustpilot rating (BOXT Ltd, 15 July 2020). Similarly, “Our Arts and Humanities research is number 1 in the UK for overall research quality (GPA) in #REF2021” would, according to the ASA, be interpreted by consumers to mean the university had been ranked by the REF 2021 as the top performing university for research in arts and humanities in the UK (The University of Leicester, 07 September 2022). Additionally, the ASA said consumers would understand “the UK’s best mobile data network” and “No. 1 Mobile Network Performance. nPerf. 2019” to be based on the results of mobile data network testing undertaken by nPerf, rather than a best-selling claim (Vodafone Ltd, 28 July 2021).
Some ‘number 1’ claims may have multiple possible interpretations, and the meaning will be considered ambiguous. The ASA considered that the claim “…the UK’s No.1 network” had a number of possible interpretations, including as a comparison using objective measures such as highest turnover amongst providers, having the most customers, or offering the best-selling product/package. It was determined that EE should have made clear that the claim related specifically to the findings of a particular report. Their failure to do so meant the claim was likely to mislead (EE Ltd, 08 April 2020). See also Telefonica UK Ltd, 24 February 2021. For more information on comparisons in the telecoms sector, see Broadband and Telecoms: Comparisons.
The claim "Derby's No.1 Award Winning Agent" was considered ambiguous, and therefore had the potential to mislead, because it could have been understood to mean that the agency had won the largest number of awards compared to other agents in Derby, or that it had won at least one award and also had let the most properties. The fact they had more company vehicles, staff and branches was not sufficient to support either potential interpretation of the claim. Neither was the advertiser’s belief that they had the most properties to let listed online (IMS Lettings Ltd, 17 April 2013). See also (Agency Management Ltd, 07 November 2018).
Marketing communications which do not make the basis of a ‘No.1’ claim clear are likely to be considered misleading.
Substantiation
The CAP Code requires marketers to hold documentary evidence to substantiate claims that consumers are likely to regard as objective and that are capable of objective substantiation (Rule 3.7).
The nature of the evidence required to substantiate “number 1” claims will vary depending on the context in which it is made and how it is likely to be understood by its audience (see How will consumers interpret the claim). For example, EE included numerous variations of “No 1 for 5G” in their ads alongside ‘No 1 for Network Performance’, which appeared next to a RootMetrics logo. The ASA said consumers were likely to interpret the ads as references to the performance of EE’s 5G network, specifically concerning issues like coverage and reliability. The ASA thought consumers would view the claims as comparisons, and an indication that EE’s 5G network had been ranked highest in the UK by RootMetrics. After an analysis of the evidence, the ASA decided the “No 1 for 5G” claims had been substantiated, but because the ads referred to a ‘report’, rather than a specific data subset, the ads were nonetheless deemed misleading (EE, 23 August 2023)
When making ‘number 1’ claims likely to be interpreted as ‘best-selling’ claims, comparative evidence relating to unit-sales, market share, or both, will likely be required. Absolute ‘number 1’ claims are likely to be understood as entire market comparisons. To make this type of claim, marketers would therefore need to be able to demonstrate that their product or service is the best-selling across the entire market. By way of example, the ASA upheld a complaint about the claim “#1 holiday website on the planet”, because the advertiser did not provide evidence to demonstrate that the advertiser had the largest turnover of holiday rentals when compared to its global competitors (Rental Republic Ltd, 19 January 2022).
Similarly, the ASA determined that the AA’s claim to be “The UK’s number 1 breakdown service provider” would be interpreted as a ‘best-selling’ claim i.e. that the AA had the most members compared to their competitors in the UK breakdown insurance market. The ad was considered misleading, because the AA did not have the membership figures of their competitors to compare against their own, and to evidence the fact that they had the most (AA Ltd, 20 July 2022).
Marketers must ensure that the way data is collected for their own sales and competitor sales allows for an accurate comparison. The claim “ST. MORIZ UK’S NO. 1 TAN” was considered misleading because it was not clear if the advertiser’s sales figures were accurate, or if the data had been collected, presented, and applied in a different way to that of its competitors. In addition, the data had been subject to masking, whereby some retailers did not provide details about the volume of sales for certain products as this was commercially sensitive information. The data was therefore unreliable (Hothouse Partnerships Ltd, 18 April 2018).
Verifiability
Marketing communications do not need to explicitly identify the competitor or product being compared to be subject to the rules on comparisons with 'identifiable' competitors. If a consumer can identify at least one competitor or competing product, regardless of whether it is identified explicitly in the ad, rules 3.33 – 3.37 will apply. In most cases, “no.1” claims are likely to be understood as comparisons with identifiable competitors. See Comparisons: identifiable competitors.
The CAP Code requires that comparisons with identifiable competitor products must objectively compare one or more material, relevant, verifiable and representative feature of those products (Rule 3.35).
The information required to make a claim verifiable will depend entirely on the specific comparison and the evidence used to support it. Marketers should include, or direct consumers to, sufficient objective information and data to ensure they are able to check the claims are accurate for themselves. If verifying the comparison requires specialist knowledge, consumers should be able to get a knowledgeable and independent person or organisation to verify the comparison for them.
By way of example, EE were found to have breached the CAP Code for failing to verify their comparative ”No 1 for 5G” claims, as none of the ads included sufficient information to allow consumers to understand or check the accuracy of the claims, and nor did they adequately signpost consumers to where to find that information (EE, 23 August 2023). A complaint about an ad for a kitchen supplier which stated “The UK’s number 1 Kitchen Retails Specialist” was upheld because, whilst the advertiser could substantiate the claim, the ad did not include any information in a format which would allow customers to verify the claim, and some of the information was not accessible in the public domain (Wren Kitchens, 26 July 2017). See also ASTOK Ltd, t/a TVBet, 15 April 2020.
For further detailed advice on this requirement see Comparisons: Verifiability.
Is sales data always required?
In most cases a ‘number 1’ claim presented as a best-selling claim that needs to be supported by sales or market share data. Yet occasionally, marketers may be able to substantiate such claims without holding evidence relating to sales.
For example, the ASA previously accepted data comparing an advertiser’s web traffic with that of its competitors over six months. The results showed that the number of unique visitors was more than its four closest competitors combined and more than double the number of total visits than its closest competitor. The ASA considered that, while visitor numbers alone were generally not a guaranteed indication of market share, because the difference in web traffic was so great, in these particular circumstances, it was reasonable to infer that the advertiser was the leading provider and had substantiated the claim (Medichecks.com Ltd, 14 February 2018). For more information on this type of comparison, see Web Traffic.