Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
A national press ad and a video on Dyson’s YouTube channel, both seen in December 2013, promoted the Dyson DC59 Animal cordless vacuum cleaner and featured a comparison against the Gtech AirRam.
a. The press ad showed an image of a wooden floor sprinkled with fine white powder, along which the two vacuum cleaners had been run side by side. A residual coating of powder, including a thicker layer towards the wheel area, was visible on the section of floor that had been covered by the AirRam. The section of floor behind the DC59 appeared clean. Text stated "Dyson has over 10x the suction of Gtech ... DC59 Animal sucks up as much dust as even a corded vacuum. See the evidence at [website address]." The website address directed users to ad (b).
b. The YouTube video, to which users who followed the link in ad (a) were directed, was titled "Dyson DC59 cleans up against Gtech AirRAM - Official Dyson video". It was accompanied by text that made various claims about the efficacy of the two products.
The video opened with on-screen text which stated “Dyson DC59: 10x the suction of the Gtech AirRam”. It then showed Dyson's Director of Engineering describing a comparison test between the two vacuum cleaners. He stated, "We're using a hard floor surface, and baking powder which has been sprinkled evenly across the floor to represent fine dust." He then ran the AirRam forwards across what appeared to be an area of tiled floor covered with a layer of powder, at the end of the run lifting the AirRam back to its starting position. The same test was then performed on a parallel area of the floor with the DC59. A residual coating of powder was visible on the section of floor that had been covered by the AirRam, including a thicker layer towards the wheel area. The section of floor behind the DC59 appeared clean. The speaker stated, "There's clearly a marked difference between the pick-up performance of both machines. Now, the Gtech has only got four air watts at the cleaner head, whereas the Dyson uses our latest digital motor and that generates ten times the suction power at the cleaner head. So not only is the Dyson better at picking up across all floor surfaces than the Gtech, but because of its unique format it's easier to clean up high too." At that point the speaker lifted the DC59 into the air.
Issue
Grey Technology Ltd, t/a Gtech, who believed that the AirRam outperformed the DC59 according to relevant International Electrotechnical Commission (IEC) testing standards, challenged whether:
1. ad (a) was misleading, because it featured a comparative test that did not reflect normal household cleaning conditions and was unsuited to the design of the AirRam, and which exaggerated the capability of the DC59 to deal with fine dirt;
2. ad (b) was misleading for the same reason;
3. the comparison in ads (a) and (b) between each product's suction power was misleading, because it implied that suction power was equivalent to pick-up performance but differing dirt collection systems between the two products meant that the AirRam required less suction power to collect dirt than the DC59; and
4. the claim in ad (b) "... the Dyson is better at picking up across all floor surfaces ..." was misleading, because they believed that according to testing to the relevant IEC standards the AirRam outperformed the DC59 on carpets, hard flat floors and hard floors with shallow crevices.
Response
1. & 2. Dyson Ltd stated that the comparisons shown in both ads were of the two machines’ performance on laminate floor that was representative of real floors in consumers’ homes. They said the ads demonstrated the products’ performance on hard floors with crevices and when picking-up fine dust from hard floors, but were not intended to replicate the IEC hard floor with crevices or hard flat floor tests. They highlighted that there was nothing in the CAP Code or the relevant CAP guidance on vacuum cleaner marketing that required every visual demonstration to be carried out in accordance with an IEC test method. However, they provided a selection of test data, carried out both by an independent party and by Dyson in their own facilities, which they considered produced representative and repeatable results, in accordance with the relevant IEC standards. They considered those results showed that the DC59 was superior to the AirRam in terms of dust removal from hard floors with crevices, hard flat floors and carpets. In addition, Dyson said they had designed their own test to compare pick-up performance of fine dust on hard flat floors, in which the DC59 outperformed the AirRam. They argued that because they held IEC and their own test data showing that, regardless of the surface or dust used, the DC59 picked up more dust, the ads, which showed that the DC59 outperformed the AirRam, were not misleading.
Dyson understood that Gtech objected to the ads because they appeared to compare the products’ performance after one stroke, as opposed to reciprocal strokes, and that Gtech had asserted that the AirRam was optimised for fine dust pick-up on the rearward stroke. They noted that they had not seen any evidence that that was the case and pointed out that all the relevant IEC pick-up tests included five forward and backward passes, and yet, the results showed that the AirRam performed worse than the DC59.
They also understood that Gtech believed the ad exaggerated the capability of DC59 to pick up fine dust, because DC59’s product manual stated “Fine dust such as flour should only be vacuumed in very small amounts”. Dyson stated that the IEC crevice test used around 15 g of test dust (a mix of fine dust and coarser fine sand particles); the Dyson fine dust test used a smaller amount of dust. In both ads, Dyson had used a similar amount of baking powder to the amount of dust used in the Dyson fine dust test, which they considered constituted a very small amount. They explained that they had used baking powder in both ads as they thought it was representative of a household spill.
3. Dyson said the comparison between the products’ respective suction power did not imply that suction was equivalent to pick-up performance across all floors. The visual demonstrations in both ads (a) and (b) related to hard floors with crevices and pick-up of fine dust on hard flat floors respectively, where suction power was an important factor for pick up. They said that was an element of the machine’s performance that they were entitled to demonstrate. Again they referred to the test data submitted to show the DC59’s performance in comparison to the AirRam.
In response to Gtech’s assertion that the design of the AirRam meant that reduced suction did not have a negative impact on pick-up performance, Dyson stated that the AirRam collected dirt by flicking the dirt up from the floor to the bin. They believed that the proximity of the bin to where the dirt was collected in the AirRam had no bearing on its pick-up performance and that if it had more suction it would have better pick-up performance.
They said even if consumers understood the claim to mean that suction power equated to pick-up performance, the claim was substantiated given DC59’s outperformance of the AirRam across all floor types. They said such superiority was in part due to the difference in suction power, which was particularly relevant for the difference between the products’ performances on hard floors with crevices, where suction was the key determining factor.
4. Dyson reiterated that their tests and those commissioned by an independent third party showed that the DC59 was superior to the AirRam across the IEC test surfaces of carpet, hard flat floors and hard floors with crevices. They understood that there was not an IEC test for “shallow crevices”. They had tested both machines in-house, but only the AirRam had been tested by the independent party. Dyson explained they had not had the DC59 tested externally because they had comprehensive in-house testing facilities and were able to carry out large amounts of IEC compliant testing themselves. Therefore they did not necessarily send all machines out to be tested externally. They said there was little variability between test locations due to the test conditions and that the disparity between the performance of DC59 and the AirRam was so great that having tested it independently would have made little difference to the results.
Assessment
The ASA took expert advice.
1. Upheld
We acknowledged that the CAP guidance entitled “Vacuum cleaner marketing” did not state that all visual representations or demonstrations of a product had to be carried out in line with an IEC standard. We noted, however, that the guidance stated that marketers should ensure that they had carried out appropriate tests that followed, or were of an equivalent standard to, the relevant IEC standard, to support all objective claims regarding product performance, whether direct or implied.
We noted that the ad did not include any specific claims regarding the products’ pick-up performance in relation to particular surfaces, but showed the relative pick-up performance of the two products when used to vacuum powder on what appeared to be a hard floor with crevices. We considered, however, that consumers were likely, particularly given the ad’s visual emphasis on pick-up performance, the absence of any explicit reference to the floor type featured and the prominence of the claim “Dyson has over 10x the suction of Gtech”, to believe that the image was simply intended to portray the general superiority of the DC59 over the AirRam, in terms of pick-up performance on all surfaces, as opposed to portraying a particular comparison under test conditions.
In light of that, we considered that Dyson needed to provide test data in accordance with the relevant IEC standards for pick-up performance, which were reflective of normal domestic use, to show that the DC59 was able to pick up more dust than the AirRam when used on the three IEC test surfaces: carpet, hard flat floor and hard floor with crevices.
We reviewed the test data submitted by Dyson and shared it with our expert. We understood that reference note 1 under the scope of IEC 60312-1 stated “Due to influence of environmental conditions, variations in time, origin of test materials and proficiency of the operator, most of the described test methods will give more reliable results when applied for comparative testing of a number of appliances at the same time, in the same laboratory and by the same operator”. Our expert explained that there was no established reproducibility within the procedures and data obtained from different laboratories, or even the same laboratory, from different periods and different technicians might not be comparable. When submitting their complaint, Gtech had also provided test data, which they thought adhered to the relevant IEC standards and which they believed showed that the AirRam was superior to the DC59, in terms of pick-up performance, in relation to the three IEC test surfaces.
We considered that head-to-head testing in the same laboratory, at the same time and with the same technician was the most reliable way to obtain comparative test results. In light of the direct comparison between the DC59 and the AirRam set out in the ad, and because there were conflicting test results provided by Dyson and Gtech, we considered head-to-head test results were required to substantiate the implied superiority claim.
Dyson had submitted three sets of data relating to each of the three IEC pick-up tests, one from an independent laboratory testing how the AirRam performed in October and November 2012, one performed in-house testing the AirRam in May 2013, and one performed in-house testing the DC59 in July 2013. That data appeared to show that the DC59 outperformed the AirRam in relation to each of the test surfaces. We noted, however, that none of the tests of the two devices were performed “head-to-head” in the same laboratory, at the same time, by the same technicians. Similarly, we noted that for both the in-house and external tests that Dyson had conducted on the AirRam only one product had been used for either two or three trials to obtain an average. In contrast, for all Dyson’s in-house tests of the DC59, seemingly three product samples had been used, each being trialled multiple times, from which an overall average performance was calculated. For those reasons we had concerns that the tests were not comparable, and in particular, that the tests on the Gtech, where only one product was used, were not sufficiently robust to substantiate the implied claim that the DC59’s pick-up performance was superior when compared to the AirRam across all surfaces.
We also reviewed the fine dust test that Dyson had devised, which measured the performance of both devices on hard flat surfaces with a thin coating of fine dust. We considered, however, that given the ad made no specific or implied reference to a particular IEC test standard, or particular surface, and would therefore be interpreted to mean that the DC59 was generally superior to the AirRam in terms of pick-up performance, that the test was not the most relevant to prove that general superiority, particularly when the IEC standard existed and was the only industry-wide test available. In addition, we had some concerns about the methodology used and noted that the tests on the different vacuums had been conducted on different dates by different technicians.
Because we considered that the ad did not make clear the basis of the comparison, and consumers would understand the ad made an implied superiority claim in terms of the DC59’s pick-up performance across all surfaces, when compared to the AirRam, and Dyson had not provided adequate test data to confirm that that was the case, we concluded that the ad was misleading.
On that point, ad (a) breached CAP Code (Edition 12) Code 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
2. Upheld
The ad was filmed in what appeared to be Dyson’s onsite testing facility and showed a comparative pick-up performance test being conducted. The tester referred to the floor as a “hard floor” and explained that he was scattering a thin layer of baking powder to represent fine dust. The ad then showed the DC59 picking up more powder than the AirRam. After the test, the tester stated, “So not only is the Dyson better at picking up across all floor surfaces than the Gtech ...”. Despite the initial reference to a “hard floor”, we considered that the overall impression created by the ad was that the Dyson DC59 was superior to the Gtech AirRam, in terms of dust pick-up across all surfaces, and that the featured test was simply a representative example of that general superiority. We considered that such a representative example, however it was shown to be conducted, should be broadly reflective of the results of the actual product testing. As stated in point 1, however, we considered that the test data Dyson had provided was not sufficient to substantiate that claim.
Because we considered the test data provided did not show that the DC59 performed better in comparison to the AirRam when picking up dust from the IEC standard test surfaces we concluded that the ad was misleading.
On that point, ad (b) breached CAP Code (Edition 12) Code 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
3. Upheld
We noted that ad (a) included the headline claim “Dyson has over 10x the suction of Gtech” and quoted the suction power of both vacuums under images of them after purportedly being used to pick up a spill of white powder. Similarly, ad (b) opened with the 10x suction claim and went on to compare the pick-up performance of the vacuums on baking powder from a hard floor with crevices. We noted that ad (b) appeared to show the superior performance of the Dyson and the tester went on to state, “There’s clearly a marked difference between the pick-up performance of both machines. Now, the Gtech has only got four air watts at the cleaner head, whereas the Dyson uses our latest digital motor and that generates ten times the suction power at the cleaner head. So not only is the Dyson better at picking up across all floor surfaces than the Gtech ...”. We considered that in both ads’ contexts, most consumers would believe that suction power and pick-up performance were equivalent, and therefore that the DC59’s pick-up performance was ten times greater than the AirRam’s across all surfaces.
We understood that a vacuum’s ability to clean wasn’t just dependent on the amount of air power it had at its nozzle, but that the geometry of the nozzle, agitator and the size of the air paths were also important factors. A vacuum with good suction power could be of little use if the design of the nozzle was such that much of the air power was lost due to poor design. Similarly, a product with lower suction power but a superior nozzle design could out-perform a product with higher suction power if the nozzle design was inferior. Only if nozzle designs were roughly equivalent would having significantly higher suction power available at the nozzle provide an enhanced ability to clean.
When compared to Dyson’s internal test results for the AirRam on hard flat floors with crevices, Dyson’s in-house test results for the DC59 did appear to show that the DC59’s pick-up performance was ten times better than the AirRam. We noted that the same claim could not be made when comparing their results to those recorded by the independent testing house, however, or for the other IEC test surfaces, regardless of whether Dyson’s or the independent test house’s results were used. Further, as stated in point 1, we had concerns regarding the comparative test results provided by Dyson across all IEC test standards, as they had not been conducted head-to-head in the same test house. Therefore, because we considered the ads conflated suction power and pick-up performance and suggested that the DC59’s pick-up performance was ten times better than the AirRam, we concluded that they were misleading.
On that point, ads (a) and (b) 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
4. Upheld
We noted Gtech’s assertion that the AirRam outperformed the DC59 in terms of pick-up performance on carpets, hard flat floors and hard floors with shallow crevices. We understood, however, that the three surfaces designated by the IEC standard were carpet, hard flat floors and hard floors with crevices that were 10 mm deep. While we understood there was debate regarding whether a 10-mm crevice was representative of modern flooring, we noted that the hard floor with a 10-mm crevice was specified in the IEC standard and was the only industry-recognised test available. Therefore, in order to demonstrate that the DC59 was superior to the AirRam in terms of pick-up performance across all surfaces, as claimed, we considered that Dyson would need to show that the DC59 outperformed the AirRam when used across the three IEC test surfaces. As stated in point 1, however, we considered that the test data Dyson had provided, including results in accordance with a test of their own design, were not sufficient to show that the DC59 was the superior product in terms of pick-up performance. Therefore, we concluded that the ad was misleading.
On that point, ad (b) 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
Action
The ads must not appear again in their current form. We told Dyson Ltd to make clear the basis of their comparisons in future and to ensure they held adequate comparative test data to substantiate any implied or stated comparative pick-up performance claims.
