Background
Summary of Council Decision:
Eight issues were investigated of which six were Upheld and two were Not upheld.
Ad description
A website sales promotion on www.lush.co.uk promoted a Lush campaign against the reptile trade. Text stated "... Those animals that die en route are simply factored in by the dealer as 'expected losses.' Six million reptiles were imported into the EU last year and almost 200,000 reptiles arrived in Britain from countries outside of the EU. These figures only show recorded trade; the true scale of the trade is actually much larger and is driving many species towards extinction. Capturing reptiles from the wild for the pet trade is sadly still legal for most species. The capture and transportation process is crude and brutal ... Most wild-caught reptiles die within their first year of captivity. Breeding reptiles in captivity for the pet trade causes suffering on a large scale. According to the Animal Protection Agency, many commercial reptile breeding operations in the UK routinely operate outside the law, and are unlicensed and un-inspected, and conditions are invariably inhumane. Some dodgy dealers readily claim that reptiles are easier to keep than dogs! There is very little reliable information available on basic reptile care. Guidance found on websites, care-sheets and guide books can be misleading, false and even dangerous; good quality information is largely inaccessible to the general public ...".
Additional information on the web page stated that for the month of August all proceeds from sales of the Lush Chameleon Bath Ballistic would go to the Animal Protection Agency (minus VAT). The site also described the activities Lush was carrying out to raise awareness of reptile trade issues, including children's parties in Lush shops, and provided a link to the Animal Protection Agency and how to support them.
Issue
The ASA received 14 complaints.
1. Four complainants, one of whom worked for a reptile store, challenged whether the claim "Most wild-caught reptiles die within their first year in captivity" was misleading and could be substantiated.
2. One complainant challenged whether the claim "Six million reptiles were imported into the EU last year and almost 200,000 reptiles arrived in Britain from countries outside of the EU. These figures only show recorded trade; the true scale is actually much larger and is driving many species towards extinction" was misleading and could be substantiated.
3. One complainant challenged whether the claim "Some dodgy dealers readily claim that reptiles are easier to keep than dogs!" was misleading and could be substantiated.
4. One complainant who worked for a reptile store challenged whether the claim "... many commercial reptile-breeding operations in the UK routinely operate outside the law, are unlicensed and un-inspected, and conditions are invariably inhumane" was misleading and could be substantiated.
5. Two complainants challenged whether the claim "There is very little reliable information available on basic reptile care. Guidance found on websites, care-sheets and guide books can be misleading, false and even dangerous: good quality information is largely inaccessible to the public" was misleading and could be substantiated.
6. One complainant challenged whether the claims "Those animals that die en route are simply factored in by the dealer as 'expected losses' was misleading and could be substantiated.
7. One complainant challenged whether the claim "The capture and transportation process is crude and brutal" was misleading and could be substantiated.
8. Marvellous Monsters, two complainants who worked for reptile stores, and 11 complainants objected that the promotion and campaign was offensive to reptile breeders and owners because it misleadingly implied that they were irresponsible.
Response
Lush and the Animal Protection Agency (APA) said the sales promotion was part of a campaign to raise awareness of important animal welfare issues, so they did not believe it was within the ASA's remit, and said an "upheld" adjudication would be a serious impingement on the right to free speech. The APA asserted that most, if not all of the complaints had resulted from a campaign by the Federation of British Herpetologists, and that some were involved as reptile breeders and sellers.
1. Lush said the statement "most reptiles die within their first year in captivity" was based on robust findings from wildlife trade investigators, and relevant findings were easily available to an objective researcher. Estimates were provided from a book and an article by the Humane Society of the United States, for example "Senegal chameleons are believed to have nearly 100% mortality rate within the first year of ownership ...", "One estimate states that 90% of snakes die within the first six months of ownership", "Fritz Jurgen Obst, the author of Turtles, Tortoises and Terrapins, has estimated that 99% of all hatchling turtles, most of which originate from the United States and are sold the world over die in the first year", and "As many as 90 percent of wild-caught reptiles die in their first year of captivity because of physical trauma received before they are sold, or because buyers cannot meet the animals' complex dietary and habitat needs". Lush said that expert's opinions often were specific and not covering a class of species because the experts were world-renowned experts in their field, not generalists. However, they said that if specific estimates were totalled, they represented the majority of trade, because turtles, tortoises and snakes made up the majority of traded reptiles.
The APA said a Pet Food Manufacturers Association report estimated the accumulated number of reptiles held as pets in UK households at approximately 360,000. The APA said that because imports and sales were around 295,000–380,000, based on TRACES' (The European Commission's Trade Control and Expert System) figures for 2008 and 2009, that meant the majority of reptiles were dying and being replaced in one year. They added that that did not take into account captive-bred reptiles already in the UK, or illegal importation, which one researcher estimated to be 25% of imports.
2. Lush provided several references to reptile import statistics. They said the claim came from a RSPCA publication that used figures from TRACES and Eurostat, and stated "In terms of trade in all live reptiles, the Society estimated in 2006 that between 3.6 and 5.9 million live reptiles were imported into the EU that year ... 178,244 animals entered the UK from outside the EU in 2006 ... Unfortunately, comparable data on the total number of individual reptiles imported into the EU in 2006/2007, and into the UK in 2007/2008, were not provided by the government so the latest trends cannot be shown". They provided a record from Hansard that referred to TRACES statistics and stated that 295,607 reptiles arrived in Britain from countries outside the UK in 2009. They also referenced a Sunday Times article from June 2010 which stated "Six million reptiles were imported into the EU last year and almost 200,000 reptiles arrived in Britain from countries outside the EU". Lush said the six million figure was a calculation, based on a RSPCA estimate that the UK had 3–5% of EU imports of CITES (Convention on International Trade of Endangered Species) reptiles. They had extrapolated this out to give an estimated import figure of between 5.9 and 9.9 million.
Lush said the claim "driving many species towards extinction" was well supported. They provided studies and articles that showed the fashionable and rare nature of certain species had led to them being highly sought after and smuggled, which had depleted populations. They produced a report by TRAFFIC, a wildlife monitoring network, that stated, "While the majority of this wildlife trade into and within the EU is conducted legally, continued demand for some rare and protected species means that illegal wildlife trade still occurs ... The effect on wild populations of rare and endangered species can be devastating ...". A paper on the Anthropogenic Allee Effect (AAE), a spiral effect where the rarity of an animal raises its price, which in turn increases the demand for it and further increases its rarity, was provided that stated, "Another activity that can lead to an AAE is exotic pet ownership, which is an increasingly important part of the wildlife trade business. Reptile, bird, monkey and felid pets are becoming ever more fashionable in some parts of the world, with the rarest species being especially sought after. Given that high levels of mortality occur during the capture or transfer of traded species due to inadequacies in care, the massive volumes of live species that are traded are likely to exert considerable pressure on the target populations ...".
3. Lush said the statement referred to a subset of dealers and did not imply all dealers would claim that reptiles were easier to keep than dogs. They provided a number of quotes to substantiate that, such as an online reptile dealer who stated "A bearded dragon takes up much less space than a dog or cat and is much less messy" and a website for a pet products store stated "... Easy care: Reptiles offer companionship without the demands of dog or cat ownership ...".
4. Lush relied primarily on the APA for their response.
The APA said that many commercial reptile breeding operations relied on taking stalls at reptile fairs in the UK to sell the reptiles which they had bred. They said that such activity was unlawful under the Pet Animals Act 1951, which prohibited carrying on a business of selling animals as pets at a market, or at premises without a licence from the local authority. They referred to the case of R (Haynes) v Stafford BC 2006 as clarifying any uncertainty in the law.
The APA provided a summary of their research into 53 organisations that maintained websites with trading names, and that appeared to deal in reptiles through attendance at pet fairs. They said their research showed 31 (58%) of those dealers were confirmed by local authorities as unlicensed, which they said showed that enforcement was poor and that many dealers operated outside the law. The APA was not able to say what proportion of the UK commercial reptile breeders those 31 might represent. They said that premises at which reptiles were bred and held were typically unlicensed and uninspected.
They provided references to RSPCA statements such as "Many of the animals are bought over the internet, where controls are loose", "The RSPCA is also exasperated by the growth in the unregulated exotic pet industry" and "There is currently no registration scheme for exotic pets despite urgent calls from animal charities for new laws to be brought in". They also referenced a report by TRAFFIC, which stated that organised crime groups were involved in the illegal wildlife trade and said the sale of wildlife over the internet was an emerging trend that was difficult to regulate.
In regards to conditions being invariably inhumane, they said the Animal Welfare Act 2006 required all animals to be free from certain stresses and harm, and therefore anything not fulfilling that was in their view inhumane. They provided several references to the psychological and behavioural difficulties that reptiles could have in captivity. They cited a book entitled "Health and Welfare of Captive Reptiles" by Warwick, Frye and Murphy, which stated "Psychological stress and 'behavioural frustration' seem common even in the most well-considered artificial environments ... it can reasonably be said that captive environments that do not take account of the ethological needs of reptiles are likely to cause suffering. This inevitably raises serious ethical questions about the appropriateness of keeping these animals in situations where welfare may routinely be compromised" and "... no pet-shop keeper has the resources to maintain reptiles humanely, and councils can and should specify that no exotics are sold".
5. Lush cited a number of references that highlighted issues with the information reptile owners received at point of sale and with obtaining reptile specific information. A veterinarian in a RSPCA report stated "Our main concern, apart from the lack of information readily available at point of purchase ...". The Humane Society of the United States stated, "Pet store personnel are unlikely to provide accurate information about reptile care to prospective buyers, either out of their own ignorance or from an overriding interest in making a sale". They also provided a report by Pro Wildlife that stated "Given the importance of literature in informing reptile keepers, it is alarming to note that many books, and articles in herpetological and keepers' magazines, still contain serious mistakes ...". Lush said it was difficult for reptile keepers to find objective sources of information, with some references appearing to be reliable when they were not, and other good references like scientific works, requiring a good biological understanding to be useful.
6. Lush referred to a German study that stated "For reptiles the post import mortality in wholesale operations is estimated with [sic] 3 to 4%, which is about the same figure as transport mortality". Lush said that meant a total of 6-8% of a reptile consignment would be lost in transportation and post import combined. They said any business routinely losing 6-8% of its stock before sale would have to factor in such a loss. They cited Franke and Telecky (2001) who stated "high mortality is accepted and is calculated into the cost of doing business" and also referred to the United States court case of City of Arlington v US Global Exotics/Shaw, where a wildlife trader was found to have treated 27,000 exotic animals cruelly. They said a witness testified in the case that 12% of the stock had died or were discarded, with the causes of death being fundamentally unnatural and related to incidental abuse. They said the witness stated that the losses were 'industry standard'.
7. Lush provided quotes that reptiles were often subjected to harsh treatment during the capture and transportation process, such as "Crude capture methods such as nets, nooses and chasing have a severe impact on the resulting condition of the animals", "The inhumane conditions under which most reptiles are shipped significantly contribute to the stress and mortality experienced by animals destined for the pet trade", and "these unfortunate animals are often subjected to harsh handling and marginal conditions during the capture process". They said the mortality rates alone during the capture and transportation process showed that it was not a sophisticated process so they felt the terms crude and brutal were appropriate.
8. Lush said the purpose of the campaign was to raise awareness of the difficulty in providing adequate care to reptiles kept in captivity, and to show reptiles were not easy animals to take care of. They said the references to the demanding nature of animal husbandry meant the campaign should have been seen as a compliment to responsible owners. They said the medium used meant the audience would only be consumers choosing to visit the Lush website, namely Lush customers who were familiar with their awareness campaigns and likely to be receptive to that type of awareness raising. Lush said that complainants might have had differing opinions to Lush and the APA on animal welfare, but making statements complainants disagreed with was quite different to making offensive statements.
Assessment
The ASA noted that Lush and the APA considered that the sales promotion was outside the ASA's remit as part of an animal welfare awareness campaign, but noted that the CAP Code (Edition 11) Clause 1.3a stated "a product encompasses goods, services, ideas, causes, opportunities, prizes or gifts". We also noted that the ad encouraged people to purchase the Lush Chameleon Bath Ballistic as well as promoting animal welfare issues. We therefore considered that the sales promotion was an ad within the ASA's remit. We noted the APA's statements about the motivation of some of the complainants, but did not consider that affected whether or not their complaints should have been investigated.
1. Upheld
We noted the evidence provided by Lush and the APA for the claim involving estimated figures. We did not accept that totalling specific estimates for turtles, tortoises and snakes represented most of the reptile trade as those estimates did not include reptile species such as lizards, which Lush featured prominently in their campaign advertising, and which TRACES CITES (Convention on International Trade of Endangered Species) data showed made up approximately 20% of the reptile trade. In addition to the estimates, we noted that one of the references stated there were no known studies in the United States on that issue, only anecdotal evidence. We noted we had not been provided with evidence from any UK studies.
We noted the APA's comments drawing a link between the number of reptiles estimated to be kept in UK households, and the TRACES data for reptile imports. However, the number of reptiles in UK households was based upon survey-based estimates, and while the number of reptiles imported was roughly the same as the estimated number of reptiles in households, we had not seen evidence that the numbers were similar due to most reptiles dying in their first year and needing to be replaced, rather than because the reptile population was simply increasing.
Because the substantiation provided for the claim was based on totalling specific reptile estimates, survey based estimates, and because we had not seen evidence that conclusively linked import figures with reptile deaths in the first year of captivity, we concluded the ad was misleading on this point.
On this point the ad breached CAP Code (Edition 11) Clauses 3.1 (Substantiation) and 7.1 (Truthfulness).
2. Upheld
We accepted the evidence from the TRACES database to substantiate the claim that almost 200,000 reptiles arrived in Britain from countries outside of the EU, and noted the database showed the figure was actually more than 200,000. However, we did not receive adequate evidence that six million reptiles were imported into the EU last year, because The Sunday Times article contained no reference to where its statistics came from, and we did not consider the calculation Lush provided to be accurate or reliable. The calculation was based on a small figure, estimated for CITES listed reptiles only, and was multiplied by up to twenty times to give an estimated figure.
We accepted the evidence provided showed that the trade in some rare and/or exotic reptiles had contributed to depleted populations of those species. However, we considered the claim "These figures only show recorded trade; the true scale of the trade is actually much larger and driving many species towards extinction ..." referred to most of the trade in wild-caught reptiles, and the ad implied it was the size of the trade that was driving species towards extinction, rather than the specific trade of exotic or rare species. We considered the claim implied that when someone purchased a reptile in the UK they may be contributing to the extinction of that species, but we had not seen evidence that this was the case.
Because we had not received evidence that six million reptiles were imported into the EU in the previous year, or that the general activity of reptile trading was driving species towards extinction, we concluded the claim was misleading.
On this point the ad breached CAP Code (Edition 11) Clauses 3.1 (Substantiation) and 7.1 (Truthfulness).
3. Not upheld
We accepted the evidence provided by Lush that some dealers claimed that reptiles were easier to keep than dogs, and concluded the claim was not misleading.
On this point we investigated this point under CAP Code (Edition 11) Clauses 3.1 (Substantiation) and 7.1 (Truthfulness) but did not find it in breach.
4. Upheld
We considered that the claim implied that many commercial reptile breeding operations in the UK routinely operated in breach of the criminal law in respect of the breeding, keeping and sale of reptiles, and that the conditions in which reptiles were kept were invariably inhumane. We understood that the Pet Animals Act 1951 prohibited carrying on a business of selling animals as pets in a public place or market; and required the carrying on of a business of selling animals as pets through a shop (which could include an internet business) to be licensed by their local authority and subject to inspection as to suitable conditions by that authority. We noted the Act did not prohibit non-business transactions or pet owners from selling the offspring of an animal which they had kept as a pet. We also noted that the judge in R (Haynes) v Stafford BC declared that the prohibition on markets for sale of pets by retail could not be avoided by licensing an organiser rather than individual traders, and that market should not be construed restrictively. He declined to make any declaration that any specific conduct was criminal, saying it was a matter for the criminal courts.
We noted that the advertisers had provided evidence that showed some local authorities had refused to grant licences for fairs for the sale of animals as pets, while some local authorities had continued to do so. We also noted that we had not been provided with evidence of any prosecutions under the legislation referred to above, or that the 31 identified traders, if operating unlawfully, represented any significant proportion of the UK reptile trade.
We understood that some experts may have considered any type of reptile captivity to be inhumane, and acknowledged that some of the experts cited in Lush's response were well respected and experienced in that area. However, we noted that the statement in the ad went beyond an expression of opinion of experts, and suggested that reptiles were invariably kept unlawfully in conditions which the law did not permit, that is being kept inhumanely.
Because we had not seen evidence that many commercial reptile breeding operations routinely operated in breach of the criminal law, we considered the claim had not been substantiated, and concluded it was misleading.
On this point the ad breached CAP Code (Edition 11) Clauses 3.1 (Substantiation) and 7.1 (Truthfulness).
5. Upheld
We noted the claim in the ad referred to very little reliable information being "available" and good quality information being largely "inaccessible" to the public. While we received evidence that reptile owners were not always able to obtain correct information, especially at point of sale, we did not receive evidence that very little reliable and good quality information was available or largely inaccessible to the public. We noted that information in an APA reptile leaflet, which formed part of the same campaign as the Lush promotion, stated "Good quality information can be found in scientific publications ...", indicating information was available and accessible to the public. While we acknowledged that getting the most use from those sources might require a lot of reading or background knowledge, we considered that the information was available and accessible to reptile keepers who were seeking it, especially with the availability of the internet. We therefore concluded the claim was misleading.
On this point the ad breached CAP Code (Edition 11) Clauses 3.1 (Substantiation) and 7.1 (Truthfulness).
6. Upheld
We noted that Lush had inferred from the mortality figures stated in the German study that dealers must have factored in such losses, but that was not a stated conclusion in the evidence supplied. We also noted the comments of the judge in the case cited, who stated the animals had been cruelly treated and the necessities of life denied. Because the evidence supplied did not show that dealers actively factored in transportation deaths as expected losses, we concluded the claim was misleading.
On this point the ad breached CAP Code (Edition 11) Clauses 3.1 (Substantiation) and 7.1 (Truthfulness).
7. Upheld
We accepted the evidence showed that some reptiles may have been subject to harsh conditions during capture and transportation. However, we interpreted the statement "The capture and transportation process is crude and brutal" as implying that the capture and transportation process was an invariably crude and brutal process. Because the evidence showed that the process was only crude and brutal on some occasions rather than invariably, we concluded the claim was misleading.
On this point the ad breached CAP Code (Edition 11) Clauses 3.1 (Substantiation) and 7.1 (Truthfulness).
8. Not upheld
While we noted that many of the complainants disagreed with the information in the ad, and that a number of the claims in the ad had not been substantiated, we did not accept that that necessarily meant the ad was likely to cause serious or widespread offence. We noted the ad was clearly produced in association with a group that campaigned vigorously against keeping reptiles as pets, and therefore considered that readers would be aware that the sales promotion contained statements against reptile husbandry. While we considered the sales promotion implied reptile owners were irresponsible, we did not consider it was offensive to reptile owners and breeders, and concluded it did not breach the Code.
We investigated the ad under CAP Code (Edition 11) Clause 5.1 (Decency) but did not find it in breach.
Action
The ad must not appear in its current form again.
