Ad description
A website offering the removal of diesel particulate filters, www.avontuning.co.uk, seen on 17 August 2016, stated "First of all we remove the filter from the exhaust system, unlike other companies we do not fit a simple bypass pipe. This would likely lead to an MOT failure due to the DPF visual inspection, which was introduced to the MOT test in February 2014. Instead, we modify the original DPF unit, discreetly cutting a small window in the top of the chamber, removing the internal filter before re-welding the window and refitting to the vehicle. This way the vehicle still appears to have a DPF fitted and appears unmodified in anyway". Further text stated "Once the physical filter removal has been completed the ECU (Electronic Control Unit) is reprogrammed (Remapped) and any DPF related structures removed from the vehicles software. This will prevent the vehicle from sensing the missing filter and will prevent future DPF regeneration and warning lights". Under the heading "Will removing the DPF result in an MOT failure?" text stated "… the only MOT regulation regarding the DPF is a simple visual inspection, as long as the DPF still appears to be fitted - the vehicle will pass the MOT visual inspection. Therefore we only remove the internal core, leaving the outer casing in place. The vehicle will appear to have a DPF fitted and will appear unmodified". The bottom of the ad included a qualification which stated "*Our DPF Removal service is sold for off-road use only".
Issue
Friends of the Earth, who understood that diesel vehicles which had had their diesel particulate filter (DPF) removed were illegal to drive on a public road, challenged whether the ad was misleading by omitting this information.
Response
Avon Tuning said that the ad made clear through the qualification "*Our DPF Removal service is sold for off-road use only" that the service was for off-road use only. They did not believe that this could mislead consumers into thinking that it was legal to drive without a DPF on a public road. They said their service would not lead to an MOT failure as an MOT check only involved a visual inspection. They did not remove the DPF completely so that its visual appearance would not change. They believed consumers could not be misled because all the content on the web page was entirely accurate, but said they were open to making changes to their website if it was deemed necessary.
Assessment
Upheld
The ASA noted that there were no claims within the main body of the ad that indicated that the service was only for off-road use. Because vehicles were predominantly used on public roads, we considered that, in the absence of clear information to indicate otherwise, consumers were likely to understand that the ad was promoting the removal of vehicles' DPFs for use on public roads and that the use of such a vehicle on public roads would be compliant with the law. We noted the ad featured the headline "Will removing the DPF result in an MOT failure?" and accompanying text "… the only MOT regulation regarding the DPF is a simple visual inspection, as long as the DPF still appears to be fitted - the vehicle will pass the MOT visual inspection". In addition, further text stated "… unlike other companies we do not fit a simple bypass pipe. This would likely lead to an MOT failure due to the DPF visual inspection". Because MOTs were only required for vehicles that were used on public roads, we considered that the focus on how the DPF removal service would not result in an MOT failure would reinforce the impression that the ad was promoting the removal of vehicles' DPFs for use on public roads. While we acknowledged that the ad featured a qualification at the bottom of the ad which stated "Our DPF Removal service is sold for off-road use only", we considered that it was not sufficiently prominent to counter the overall impression that vehicles which had their DPF removed could be used on public roads.
We understood that it was an offence under the Road Vehicles (Construction and Use) Regulations to use a vehicle which had been modified in such a way that it no longer complied with the air pollutant emissions standards it was designed to meet. The removal of a DPF would almost invariably contravene those Regulations, meaning that a vehicle would be illegal to use on a public road. Furthermore, the legislation indicated that the owner or user of the vehicle was primarily responsible for the vehicle's condition. We understood that the penalties were £1,000 for a car and £2,500 for a van.
We considered that it was material information that the advertised procedure would make a vehicle illegal to use on public roads and therefore the ad needed to make that information immediately clear to consumers. As such, because that information was omitted from the ad and it instead suggested that vehicles which had their DPF removed could be used on public roads, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification).
Action
The ad must not appear again in its current form. We told Avon Tuning Ltd to ensure that their advertising did not suggest that vehicles that had their DPF removed could be used on public roads. We also told them to ensure that they made immediately clear with sufficient prominence that it was illegal to drive such vehicles on a public road.
