Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A Facebook ad and website for Bambooi, a manufacturer of electric toothbrushes:
a. A page on Bambooi’s website, seen on 12 October 2021, included a green button with that stated, “Pre-order Bio Max” and “Expected delivery date for all pre-orders is February 2022” next to an icon of a toothbrush. Further text stated, “Why is Bio Max so special? [...] Bio max is made with 100% renewable & plant-based materials” and “Learn How Bio Max (TM) is made”. Under the heading “FAQ”, further text included, “We’re expecting to make delivery of all pre-orders by February 2022. This gives us plenty time [sic] to get Bio Max produced, shipped & delivered to you – given the current global shipping crisis & Brexit induced delays!”. Under the heading “Risks and Challenges”, further text included, “Since Bio Max and this genre of toothbrush has never been mass produced, we face the challenge of being the first to market with a new technology. We will likely run into logistics hurdles along the way (thanks Brexit!). However, fear not - we have given ourselves plenty time for set-backs [sic] & don't forget we've successfully delivered over 3 million bamboo toothbrushes around the world, so our team are more than capable of meeting our goals and deadline. Thank you for choosing Bambooi, we're so excited to deliver Bio Max to the world!”.
b. A page on Bambooi’s website www.bambooi.co.uk, seen on 29 March 2022, featured information about Bambooi’s bio max toothbrush and allowed website visitors to pre-order the product. It featured text that stated, “BIO MAX (TM) BY BAMBOOI WORLD’S FIRST ECO FRIENDLY ELECTRIC TOOTHBRUSH Wave goodbye to plastic electric toothbrushes & say hello to BIO MAX (TM) – the eco-friendly electric toothbrush made from 100% plant-based materials that are both recyclable & biodegradable. Designed by dentists to care for you & the planet…”.
A section further down the page headed “PRODUCT BENEFITS” featured text underneath green ticks that stated, “100% plant-based, recyclable materials”, and “Responsible recycling for brush heads”. Another section headed “Made by Nature” featured text that stated “sugarcane – our sustainable sweetheart… Our smooth handle is made from sustainably sourced sugar cane which is so self sufficient [sic] that when it is processed, we can extract its biomass to fertilise next year’s crops”.
c. A Facebook post from the advertiser’s account, posted 29 March 2022, featured large green text that stated, “The World’s First Eco Friendly Electric Toothbrush” super-imposed on a shot of the packaging of their bio max toothbrush. Next to green ticks, further text stated “100% Plant Based Materials, Vegan, Sustainably Sourced […]”. Text visible on the product packaging stated “bio max (TM)” “Brush sustainably, like you never could before” and “100% PLANT-BASED & BIODEGRADABLE MATERIALS”. The post included the hashtags “#Ecofriendly […] #HappyPlanet #NoPlastic”.
Issue
1. Two complainants, who had pre-ordered the product in October 2021 and January 2022 respectively, but had not received their order by April 2022, challenged whether the claim “Expected delivery date for all pre-orders is February 2022” in ad (a) was misleading.
Both complainants also challenged whether the following claims were misleading and could be substantiated:
2. “100% Plant-Based Materials” and “made from […] materials that are both recyclable & biodegradable” in ad (b) and similar claims in ad (c), and “#NoPlastic” in ad (c); and
3. “Eco Friendly”, in ads (b) and (c) and “Sustainably Sourced” in ad (c).
Response
1. Bambooi Sustainable Enterprises Ltd t/a Bambooi said that they had initially intended for pre-orders to be delivered between February and March 2022. However, global supply chain issues had caused that timeframe to be unworkable, meaning delivery was delayed until May and June 2022. They added that customers had been notified of delays by email, but also stated that a significant proportion of customers did not receive any updates because they had not provided an active email address at checkout. They added that a section of their website headed “Risks and Challenges”, which was displayed pre-purchase, outlined the possibility of delays to pre-orders, and also warned website visitors that their pre-order would not be fulfilled if the product’s development was unsuccessful.
2. They stated that every material used in the product was plant-based and referred to a certification they held in support of that. However, they said they could not provide a copy of the certification without the approval of their third-party manufacturer, nor did they provide a list of the materials used in the product or any further information about the product’s manufacturing process.
They said that the basis of their "biodegradable” claims was that the product was 100% commercially compostable and explained that they offered a free service by which customers could return their products for in-house composting after use. However, they did not provide any evidence to demonstrate that was the case.
In relation to the “#NoPlastic” claim, they stated that they had never intended to imply that the product was plastic-free and said that the product contained a bioplastic material.
3. Bambooi said that their “Eco-friendly” claim was intended to convey that the product was a more environmentally friendly alternative to other electric toothbrushes on the market. They understood that was case because they believed the product was manufactured in an environmentally friendly way with plant-based materials. They emphasised that their aim in the product’s design had been to minimise its environmental impact and felt that their progress in doing so remained largely unmatched by other electric toothbrush manufacturers.
They believed that the “Sustainably Sourced” claim was justified on the basis that they ensured every raw material used in their product came from suppliers closely situated to their manufacturing site. They did not specify which bioplastic was used in the product but said that its production required less oxygen and water than its conventional plastic equivalent.
Assessment
1. Upheld
The ASA considered that consumers would understand the claim “Expected delivery date for all pre-orders is February 2022” to mean that it was very likely pre-orders would be delivered in February 2022, barring unforeseen circumstances outside of Bambooi’s control. We acknowledged that the use of the word “pre-order” signalled to consumers that the product was not currently available. However, we considered they would generally expect the word to only be applied to products that were shortly to be released, or whose release, even if scheduled long in advance, was fixed to a specific date. Because of that, we considered that it was unlikely to mitigate the impression given by the main claim.
We further considered that consumers would expect the claimed delivery timeframe to take account of any time required for the product's development to be completed and any ongoing disruption. Much of the ad’s copy, including the text “Bio max is made with 100% renewable & plant-based materials”, referred to the product in the present tense, which we considered supported the impression that the product was ready, or very nearly ready for distribution. We considered that the text "This gives us plenty time [sic] to get Bio Max produced, shipped & delivered to you – given the current global shipping crisis & Brexit induced delays” also reinforced the impression given by the main claim by implying that, after consideration of factors that might cause delays, the advertiser was certain that the timeframe was achievable. For those reasons, we considered that consumers would expect the product to be delivered within the claimed timeframe.
We further considered that if there was a significant risk that disruption, due to a supply chain crisis, or issues with the product’s development, would cause delays to the delivery of pre-orders or even cause them to remain unfulfilled, that was material information website visitors required in order to make an informed decision in relation to pre-ordering the product. However, since the qualifying text under the heading “Risks and Challenges” was included on a tab at the bottom of the page that website visitors needed to click on to view, we considered that material information had not been presented clearly or prominently and was insufficient to counter the impression given by the main delivery claim and other claims referenced above.
Because the complainants had not received the product by the end of February 2022, and Bambooi had not provided any evidence to substantiate that in general customers who pre-ordered the product between October 2021 and January 2022 received the product by the end of February 2022, we concluded the claim “Expected delivery date for all pre-orders is February 2022” was misleading.
On that 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.
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.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published Advertising Guidance on Misleading advertising: use of qualifications.
(Qualification).
2. Upheld
The CAP Code stated that the basis of environmental claims must be clear and that absolute claims must be supported by a high level of substantiation.
The claim “100% Plant-Based Materials” appeared in ads (b) and (c). We considered the claim would be understood by consumers as an absolute claim that all the materials used in the product, including the battery and any other electrical components required for charging, were solely derived using plant matter as a raw material. We further considered they would understand that any processing of that plant matter in the product’s manufacture did not involve the introduction of synthetic materials. We considered that the claim “#NoPlastic” in ad (c) would be understood by consumers as a qualification to the claim “100% Plant-Based Materials”, meaning that none of the “plant-based” materials used in the product were plastics of any kind, including plastics derived from renewable biomass, which were often referred to as “bioplastics”. Bambooi had not provided any evidence relating to the composition of the materials in the product. We therefore concluded the claims “100% Plant-Based Materials” and “#NoPlastic” had not been substantiated and were therefore misleading.
Ad (c) included the claim “100% […] BIODEGRADABLE MATERIALS”, visible on the product packaging. We considered consumers would understand that claim as an absolute claim that all of the product’s components were biodegradable at their likely-end-of-life destination.
Ad (b) included the claim "made from […] materials that are both recyclable & biodegradable”. The wording of the claim implied that all of the product’s components were both amenable to biodegradation at a suitable end-of-life destination, and widely recyclable. However, we considered consumers would generally expect recyclable and biodegradable materials to require different means of disposal and would therefore interpret the claim as an absolute claim that all the materials used in the product could either be recycled or were biodegradable in their likely end-of-life destination.
We acknowledged that, in their response, Bambooi had referred to a free service by which customers could return their products for in-house composting at the product’s end-of-life. However, Bambooi had not provided evidence to support that they ran such a service, and we understood it would only apply to materials in the product that were biodegradable. Bambooi had also not provided any evidence to support the claims that all the materials used in the product could either be recycled or were biodegradable. Those claims in both ads (b) and ad (c) therefore had not been substantiated.
Notwithstanding that, neither ad (b) nor (c) included any information about how to dispose of the product. We considered that information would be important to ensuring the product reached a suitable end-of-life destination in which it could be successfully recycled or biodegraded as claimed. For that reason, we considered that information was material to consumers’ understanding of the basis of the “biodegradable” and “recyclable” claims, individually or in combination. As such, we considered those environmental claims should have been accompanied by information about what they meant for the product’s disposal in order to ensure that their basis was clear.
Because Bambooi had not provided us with any evidence to substantiate the claims “100% Plant-Based Materials” and “NoPlastic”, and claims that the product was made entirely from materials that were either recyclable or biodegradable, and the ads also did not include sufficient information about the basis of the recyclable and biodegradable claims, we concluded they were misleading.
On that point, ads (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. (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), 11.1 11.1 The basis of environmental claims must be clear. Unqualified claims could mislead if they omit significant information. 11.3 11.3 Absolute claims must be supported by a high level of substantiation. Comparative claims such as "greener" or "friendlier" can be justified, for example, if the advertised product provides a total environmental benefit over that of the marketer's previous product or competitor products and the basis of the comparison is clear. and 11.4 11.4 Marketers must base environmental claims on the full life cycle of the advertised product, unless the marketing communication states otherwise, and must make clear the limits of the life cycle. If a general claim cannot be justified, a more limited claim about specific aspects of a product might be justifiable. Marketers must ensure claims that are based on only part of the advertised product's life cycle do not mislead consumers about the product's total environmental impact. (Environmental claims).
3. Upheld
The CAP Code stated that absolute claims must be supported by a high level of substantiation, but that claims such as “greener” could be justified if the advertised product or service provided a total environmental benefit over that of the advertiser’s previous product or service or competitor products or services and the basis of the comparison was clear. The Code also stated that claims must be based on the full life cycle of the advertised product, unless the ad stated otherwise, and must make clear the limits of the life cycle. If a general claim could not be justified, a more limited claim about specific aspects of a product might be justifiable.
We considered that the unqualified “Eco-friendly” claims in ads (b) and (c) would be understood by consumers to mean that, across its entire life cycle, the advertised product would have either no detrimental impact or an overall positive impact on the environment. We further considered that various other claims in ad (b), including “an electric toothbrush that […] protects the planet”, “Made by Nature”, “we can extract its [sugarcane’s] biomass to feed next year’s crops”, as well as “YOUR SOLUTION” underneath a statistic about plastic waste, reinforced that understanding. In relation to ad (c), we considered the impression given by the main claim was reinforced by the hashtag “#HappyPlanet”, and the claim “Brush sustainably, like you never could before” which was visible in the shot of the product’s packaging.
We considered the claim “sustainably sourced” could be interpreted in different ways by consumers depending on the context in which it was used. However, in the context of the ad we considered it was likely to be understood as an absolute claim relating to pre-purchase stages of the product’s life cycle, including the sourcing of raw materials, the production of the finished product, and all intermediate stages between. We further considered that this claim was likely to give the impression that those stages of the product’s life cycle, taken as a whole, did not involve a net depletion of non-renewable natural resources, nor a net emission of greenhouse gases or other pollutants.
Because the advertiser had not provided us with any evidence to substantiate the claim “Eco-friendly” in ads (b) and (c) or the claim “Sustainably Sourced” in ad (c) as they would be understood by consumers, we concluded they were misleading.
On that point, ads (b) and (c) breached CAP Code rules (Edition 12) 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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), 11.1 11.1 The basis of environmental claims must be clear. Unqualified claims could mislead if they omit significant information. 11.3 11.3 Absolute claims must be supported by a high level of substantiation. Comparative claims such as "greener" or "friendlier" can be justified, for example, if the advertised product provides a total environmental benefit over that of the marketer's previous product or competitor products and the basis of the comparison is clear. and 11.4 11.4 Marketers must base environmental claims on the full life cycle of the advertised product, unless the marketing communication states otherwise, and must make clear the limits of the life cycle. If a general claim cannot be justified, a more limited claim about specific aspects of a product might be justifiable. Marketers must ensure claims that are based on only part of the advertised product's life cycle do not mislead consumers about the product's total environmental impact. (Environmental claims).
Action
The ads must not appear again in the form complained of. We told Bambooi Sustainable Enterprises Ltd t/a Bambooi to ensure that their future ads did not make misleading delivery claims or mislead by including qualifications that were insufficient to counter the ad’s overall impression. We also told them to ensure that future ads did not make misleading environmental claims for which they lacked adequate substantiation; that the basis of any environmental claims was clear; and that environmental claims were based on the full life cycle of the product advertised, unless the ad stated otherwise.
CAP Code (Edition 12)
3.1 3.3 3.7 11.1 11.3 11.4 3.10 3.9
