Background
Summary of Council decision:
Five issues were investigated of which five were Upheld.
Ad description
A regional press ad for a campaign against planning applications for waste processing plants in Devon, seen on 30 September, stated:
"A planning application has been submitted for a huge incinerator complex at Plymouth Docks. This will enable it to process not just local waste but waste from the rest of the UK, as well as imported and maybe even nuclear waste. Another waste incinerator is planned at Ivybridge. And there is an application for an incinerator waste processing plant in Buckfastleigh on the River Dart, near Ashburton, Dartington and Totnes ... The residue of the waste incinerated in Plymouth would be sent down the A38 by a fleet of lorries - up to 250 lorries a day, full of waste and aggregates ... Sam Gilpin Demolition Ltd, the tenant of Whitecleave Quarry in Buckfastleigh, plans to blow up and, initially, carve out of Dartmoor 250,000 tons of our rock, mix it with waste product, leeching toxins into our strong westerly winds and our rivers, and then sell it. 'Residue' would be stored in a pile of about 60 metres on the site ... Who is involved in this cross-county scheme? A German company called MVV Umwelt ... And guess where it will lead if the world disagrees that re-processing starts at home - to Devon! Build the toxic reprocessing dumps, and it will come!"
Issue
MVV Environment Devonport Ltd (MVV) and Sam Gilpin Demolition Ltd (Sam Gilpin) challenged whether:
1. the ad misleadingly exaggerated the number of lorry journeys associated with the Plymouth site;
2. the reference to Dartmoor misleadingly implied Whitecleave Quarry was located within the Dartmoor National Park. Sam Gilpin also challenged the phrase "250,000 tons of our rock," because the land was privately owned rather than being part of the National Park, and their lease and current planning permission permitted extraction of the rock;
3. the reference to "plans to blow up and initially carve out of Dartmoor 250,000 tons of our rock, mix it with waste product, leeching toxins into our strong westerly winds and our rivers," was misleading. MVV stated that the 'waste' material involved (Incinerator Bottom Ash) was non-hazardous, non-toxic material. Sam Gilpin stated that they do not plan to mix aggregates with waste, but it would be blended with recycled aggregates which do not leech toxins; and
4. the ad misleadingly stated that waste from the rest of the UK, imported waste and nuclear waste would be processed at the Plymouth site, which was intended to deal with waste from South Devon and would not handle imported or nuclear waste.
5. Sam Gilpin also challenged whether the claim "'Residue would be stored in a pile of about 60 metres on the site," was misleading because their planning documents proposed stockpiles of product up to eight metres.
Response
Dozen for Devon believed the ad was material produced to raise public awareness of three cross-county planning applications in relation to a publicly funded waste incineration plant and did not therefore constitute marketing material for the purposes of the CAP Code. They also believed that, if it was to be considered marketing material, the ad was political in nature and therefore exempt under the Code.
1. They provided a link to information available on MVV's website and a copy of a letter addressed to the Highways Agency and copied to Devon County Council which assessed the likely impact of the proposed developments on the road networks, which they believed substantiated their claim regarding the number of lorry journeys associated with the Plymouth site.
2. They believed there was a clear difference between the words "Dartmoor" and "the Dartmoor National Park" and that their ad had not implied the quarry was in the national park. They stated that their ad was if anything too modest and that Whitecleave Quarry needed to be considered as part of Dartmoor National Park according to the Devon Structure Plan policy CO2.
3., 4. & 5. They did not provide evidence in support of the challenged claims.
Assessment
The ASA noted that Dozen for Devon categorically refuted the applicability of the Code to their ad. We noted that the Introduction to the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the Code) stated that the Code applied to "adverts in newspapers, magazines, brochures, leaflets ... and other electronic or printed material". The Code stated that a "product encompasses goods, services, ideas, causes, opportunities, prizes or gifts". Furthermore, rule 7.1 of the Code stated "Claims in marketing communications, whenever published or distributed, whose principal function is to influence voters in a local, regional, national or international election or referendum are exempt from the Code".
The ad alerted readers to a proposed waste incineration scheme which the advertisers believed had implications for the environment and public health. It sought to persuade readers to support the advertiser's opposition to the proposed scheme by asking them to sign a petition to be put before local government planning officers. We understood that a local referendum on the question "Do you want Whitecleave Quarry in Buckfastleigh to be used for any handling, processing or storage of industrial waste and bottom ash from waste incineration? Yes or No?" had been demanded on 7 February and was to take place on 1 March. However, we noted that the ad had been seen on 30 September and that it had not made any reference to a proposed referendum. In light of the relevant Code rules, of previous similar cases, and of the principal function of the ad, we concluded it was subject to the Code.
1. Upheld
We noted that the information on the MVV website that the advertisers directed us to stated that there would be a total of 264 lorry journeys per day from the "Energy from Waste" plant in Plymouth. However, we noted that the ad referred specifically to the number of lorries that would travel down the A38 from Plymouth (towards Buckfastleigh) each day if the sites were built. We noted that the total number of lorries that had been estimated to depart from Plymouth each day was only 132 and the complainants maintained that of those only 48 would travel on the A38 as far as Buckfastleigh. Furthermore, we noted from the letter provided by the advertisers that the absolute worst case traffic assessment suggested the maximum number of arrivals at the Buckfastleigh site would be 200 per day, and we understood that not all of those arrivals would come from the Plymouth site. Because the information we had seen did not demonstrate that as many as 250 lorries would travel on the A38 from the proposed site in Plymouth to the proposed site in Buckfastleigh each day, we considered the ad misleadingly exaggerated the number of lorry journeys associated with the Plymouth site.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
2. Upheld
We considered readers would regard "Dartmoor" and "Dartmoor National Park" as synonymous terms used to refer to the area of land in Devon protected by National Park status. We noted that Dartmoor National Park Authority was the sole local planning authority for land within the National Park and made decisions on all planning applications within its area. We also noted that the planning applications for the Buckfastleigh and Plymouth sites were made to Devon County Council. We therefore considered that the ad had implied that Whitecleave Quarry was located within the Dartmoor National Park and we concluded that the ad was likely to mislead.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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,. 4. & 5. Upheld
Because we had not seen evidence that demonstrated that the 'waste' material would be blended with aggregates and leech toxins into the local environment, that waste from the rest of the UK, imported waste and nuclear waste would be processed at the Plymouth site or that 'Residue' would be stored in a pile of about 60 metres high, we concluded that those claims had not been substantiated and were likely to mislead.
On those points, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
Action
The ad must not appear again in its current form.
