Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two product listings for electric bikes on the Cyrusher website, www.cyrusher.co.uk, seen on 23 August 2022:
a. The product listing for the XF900 Cyrusher Motorcycle-Style Ebike featured text that included “Top-of-the-line in our ebike series […] Its motorcycle-style front forks will make you the center [sic] of attention wherever you go. The perfect all-terrain e-bike […]”. Further down the page, an icon of an e-bike battery accompanied text that stated “750W Power”, and a section headed “Specifications” included the further text “Motor 750-Watt Bafang”. The listing’s background featured alternating videos of the bike being used in public spaces, including one that was shot on London roads, and two others that showed riders moving uphill at a roughly constant speed without pedalling. Images included throughout the listing showed the bike being used in public spaces while close-up shots of the bike’s wheels, pedals and handlebars, against a background of road surface and buildings, were also featured.
Further text, under the heading “Important Note”, stated “Due to the current law surrounding ebikes in the UK, we have done our utmost to comply. So when you receive your new ebike now, there will be no throttle on the handlebar, and the motor is restricted to 250watts [sic] with a top speed of 15.5mph. But don’t despair, we have included the throttle in the box of accessories that comes with the bike. Plus we have a video on our site showing you how to derestrict the motor, as we know many of our customers use our ebikes off road or on private land. Please note: Cyrusher do not condone the use of an unrestricted ebike on the roads within the UK”.
The listing featured an embedded video, titled “Should I swap my old bike for this GIGANTIC Cyrusher e-bike?”, from a bike review YouTube channel. The video depicted the bike being taken out for a test ride on streets in London. One shot depicted the bike being ridden down a large flight of stairs that formed part of an underpass. The video’s voice-over included, “Be warned, this little baby packs a punch with a top speed of 31 miles per hour.”
b. The product listing for the XF650 Cyrusher Affordable Ebike included text that stated “great for commuting” and featured the same text as ad (a) under the heading “Important Note”. Underneath an icon of an e-bike battery, text stated “750W Power”, and a section headed “Specifications” included further text that stated “750W Lks”. Close-up shots, taken in various public settings, of the bike’s wheels, pedals and handlebars were also featured. The image of the bike’s throttle was accompanied by text that stated “Twist Throttle The half-twist throttle includes the on/off button to prevent accidental activation”.
The listing featured an embedded video, titled “Is this the BEST Electric Fat Bike? […]”, from a bike review YouTube channel. The video featured shots of the bike being taken out for a test ride on what appeared to be public trails in the countryside. Another close-up shot depicted a “speed test” of the bike accelerating over a road surface. The video’s voice-over included, “The top speed they claim is 26 miles per hour and I can tell you that I’ve done, throttle-only, faster than that. I’m not going to tell you how fast. It’s just faster than 26” while small on-screen text that stated “*be sure to abide by all local laws and restrictions” appeared in the bottom-left corner of the video.
Issue
The complainant, who believed that the advertised bikes did not meet the requirements for legal use in public places, challenged whether the ads were:
1. misleading; and,
2. irresponsible.
Response
Cyrusher Outdoor Sporting Ltd t/a Cyrusher did not respond to the ASA’s enquiries.
Assessment
The ASA was concerned by Cyrusher Outdoor Sporting Ltd’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to provide a response to our enquiries and told them to do so in the future.
1. Upheld
The Department for Transport’s (DfT) Guidance (the Guidance) on electrically assisted pedal cycles (EAPCs) set out the requirements that EAPCs must satisfy if they were not to be treated as motor vehicles, and the use of which was therefore not subject to the Road Traffic Regulation Act 1984 and Road Traffic Act 1988 (the Acts 1984 and 1988). In relation to compliant EAPCs, the Guidance stated “the maximum continuous rated power of the electric motor must not exceed 250 Watts” and “electrical assistance must cut off when the vehicle reaches 15.5 mph”. The Guidance also stated that bikes providing electrical assistance without use of the pedals, which were commonly referred to as “twist and goes”, were required to meet a range of additional technical requirements under EU Regulation 168/2013 (the Regulation). Their compliance with that Regulation was normally established by means of “type approval”, which involved an authorised body assessing the bike’s compliance. The Regulation was retained EU law in the UK.
We sought clarification from the DfT who considered that their Guidance meant that bikes sold in a power-restricting set-up, but the maximum motor power of which exceeded 250W or the powered maximum speed exceeded 15.5mph in another mode of use, were not compliant EAPCs and would therefore be treated as motor vehicles.We noted that the maximum motor power of the advertised bikes was 750W and that their maximum powered speeds exceeded 15.5mph. Because of that, we considered that, in the absence of any information being provided by the advertiser to the contrary, it was likely that neither bike met the requirements for classification as a compliant EAPC, and both were motor vehicles. As such, we considered that it was likely they were subject to the requirements of the Acts 1984 and 1988, including that their use on public roads was illegal unless they were licensed, registered, taxed and insured. We also understood that the vehicles could not be used on cycle paths, pedestrian walkways or in public parks.
We considered that, despite the increasing prevalence of electric bikes, consumers were unlikely to be aware that electric bikes that did not comply with the requirements of The DfT’s EAPC guidance were classified as motor vehicles the use of which was subject to different legal and regulatory requirements than compliant EAPCs. Because of that, we considered that in relation to ads for non-compliant EAPCs, information about their legal classification and the subsequent applicability of all relevant laws and regulations was material information that consumers required in order to make an informed decision.
Both ads featured qualifying text explaining that, in an effort to comply with UK Law, Cyrusher sold the advertised bikes in a power restricting set-up. That was accompanied by further text that stated “Please note: Cyrusher do not condone the use of an unrestricted ebike on the roads within the UK”. We considered those elements gave the impression keeping the advertised bikes in their power restricting set-up was sufficient to ensure their use on roads complied with all relevant laws and regulations. However, that was not the case given that, regardless of their set-up, the bikes were likely to be classed as motor vehicles that were subject to a range of legal requirements, including that they could not be used on public roads unless they were licensed, registered, taxed and insured.
Both ads featured various images of the advertised bikes that were shot against road surfaces and public settings. The products’ names included “Ebike” and that term, as well as “electric bike”, was repeated throughout the ads’ copy. The background of ad (a) featured alternating shots of the advertised bike being used on roads in Central London, and its embedded YouTube video included similar shots. Ad (b) featured text that stated “great for commuting”, and its embedded YouTube video featured shots of the advertised bike being used on what appeared to be public roads and trails. However, other than the qualifying text that related to the bikes’ power restricting set-up, neither ad contained any further information about the bikes’ legal classification, the subsequent applicability of relevant laws and regulations, or any steps that prospective owners would be required to take in order to ensure that their use of the bikes was legal. For that reason, we considered that the above elements gave the impression that the advertised bikes were equivalent to compliant EAPCs and could be legally used on public roads without the satisfaction of legal requirements that applied to motor vehicles.
Because the ads omitted material information regarding conditions of the advertised bikes’ legal use, and gave the impression that they were equivalent to compliant EAPCs, when that was not the case, we concluded that they were misleading.
Ads (a) and (b) breached CAP Code (Edition 12) rules 3.1, 3.3 (Misleading advertising), and 3.9 (Qualification).
2. Upheld
Ad (a)’s embedded YouTube video featured shots of the advertised bike being ridden down a large flight of pedestrian stairs in Central London. Ad (b)’s embedded video featured shots of the advertised bike being used on what appeared to be public trails.
As set out in point 1, regardless of their set-up, the bikes were likely to be classed as motor vehicles that were subject to a range of legal requirements, including that they could not be used on public roads unless they were licensed, registered, taxed and insured.As such, we considered the ads’ embedded YouTube videos depicted the illegal use of the advertised bikes, and that their inclusion implicitly condoned such behaviour.
We therefore concluded they were irresponsible.Ads (a) and (b) breached CAP Code (Edition 12) rule 1.3 (Social responsibility).
Action
The ads must not appear again in the form complained of. We told Cyrusher Outdoor Sporting Ltd to ensure their future ads were socially responsible and did not misleadingly imply that the advertised bikes could be used as electrically assisted pedal cycles and were not subject to the same legal requirements as motor vehicles. We told them to ensure that their future ads clearly and prominently presented information regarding those legal requirements. We referred the matter to CAP's Compliance team
