Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
A magazine ad and poster promoted the expansion of Gatwick airport.
a. The magazine ad stated "320,000 additional people will be affected by noise from a new runway at Heathrow. Compared to 18,000 at Gatwick". Small text at the bottom of the ad stated "Heathrow already flies its planes over central London. Choosing to build a new runway there isn't exactly going to be music to many people's ears".
b. The poster included the same comparative claim regarding the number of people who would be affected by a new runway at Heathrow and Gatwick.
Issue
The ASA received five complaints about the ads.
1. All of the complainants challenged whether the comparative claim was misleading;
2. Two of the complainants challenged whether the comparison was verifiable because the ads omitted information about the specific source of the figures.
3. Two of the complainants challenged whether the ads omitted material information about the flight paths. They believed that if there was a new runway at Gatwick, the planes would fly over quieter, more rural areas and therefore the impact of the noise would be far greater than in 'noisier', metropolitan areas, such as those that planes from an expanded Heathrow would fly over.
Response
1. & 2. Gatwick Airport Ltd stated that the figures quoted in the ads were sourced from the Airports Commission's own independent analysis of the number of people who would be newly affected by Heathrow's proposed North West runway, compared to Gatwick's proposed second runway. They provided a copy of that report, entitled "Noise: Local Assessment - Prepared for the Airports Commission by Jacobs November 2014". While it was accepted that expansion at Gatwick would lead to an increase in the number of people affected by noise, Gatwick Airport emphasised that the report stated that "the numbers of people affected in even the upper-end scenario are significantly below the total numbers at Heathrow".
Gatwick Airport highlighted where in the report the two figures appeared. They explained that the figures were a forecast of the number of additional people affected by noise from expansion at both Gatwick and Heathrow, in comparison to those who would be affected in the absence of any additional runway scheme, in 2050. They explained that a comparison with the number of people impacted by noise if expansion did not occur was important as it showed the 'true' impact of a scheme at a future point in time was being assessed, as opposed to comparing a 'future state' with the current situation. They said without future expansion, both airports' operations would get quieter as a result of improving aviation technology over time - meaning that the number of people affected would reduce. In contrast, a downward trend would be reversed as a result of the additional aircraft operations that would come with an expanded airport, which could offset improvements over time.
They explained that there were three different operational airspace scenarios that the Airports Commission assumed for Heathrow, which reflected the submissions made by Heathrow Airport Ltd to the Airports Commission. Those three scenarios were to: minimise the total number of people affected by expansion (T Scenario); give periods of 'respite' to those people who are affected from the noise (R Scenario); and minimise the number of people who would be 'newly affected' by noise (N Scenario). Gatwick Airport explained that the comparison in the ads was based on the 'T Scenario' because not only was it one of the options presented by Heathrow Airport Ltd, but it was also the operational scenario that best represented the UK Government's noise policy, which was to "Limit and where possible reduce the number of people in the UK significantly affected by aircraft noise". They also explained that the figures used in the comparison were based on "carbon-capped" assessment figures as opposed to "carbon-traded" figures, because the report did not calculate the number of 'newly affected' people in its carbon-traded assessments.
Gatwick Airport also explained that the quoted figures were gross figures and did not take into account those individuals who had been "newly removed" as a result of potential expansion of both airports. They had done so because they did not believe that it was reasonable or appropriate to 'net off' those positively or adversely affected by expansion. They believed that a number of people currently affected by noise would have either moved to the area fully aware of any noise implications or may have adjusted to such noise. In contrast, they assumed that some, and potentially many, of those individuals newly affected by noise as a result of expansion at either airport would have purposely factored in noise and flight paths when making a decision to live away from noise impacted areas and so were likely to be more adversely affected, or more aggrieved, as a result of increased noise.
3. Gatwick said the ads clearly illustrated and stated factual information about the number of people affected by noise. They said there was no ambiguity on that point.
Assessment
1. Upheld
The ASA understood that at the time the ads were published, the Airports Commission was consulting on three shortlisted options for additional runway capacity. The three options were for a second runway at Gatwick, proposed by Gatwick Airport Ltd; an extended northern runway at Heathrow, proposed by the Heathrow Hub; and a new North West runway at Heathrow, proposed by Heathrow Airport Ltd. While those were the three key options, we understood there were a number of variables that impacted upon the estimates of the number of individuals affected by noise, including which measure was applied and operational decisions post expansion.
We noted that the quoted figures related to the number of "additional" people who would be affected by expansion. We considered that consumers reading the ads would interpret the descriptor "additional" to mean the number of people newly affected by expansion, on top of those currently affected. Therefore, we considered that consumers would believe that there was a large disparity between the numbers of individuals who would be impacted by expansion at the two airports – if Heathrow expanded, 320,000 more people, in addition to those already affected, would be impacted by noise, whereas only another 18,000 people would be affected by expansion at Gatwick. We understood, however, that the quoted figures represented an estimate of the number of additional people who would be affected by noise in 2050, for both Heathrow and Gatwick, as a result of expansion, in comparison to an estimate of the number who would be affected by noise in 2050 if expansion did not take place.
We also understood that as a result of the technological developments and changes in flight paths and population numbers, the expansion of both airports could lead some individuals who were currently affected by noise to no longer be impacted. We noted that in the specific expansion scenario for Gatwick reflected in the ads, while 18,200 people were newly affected by noise, the number of people newly removed was 2,700 and therefore the net increase in the number of people newly affected was 15,500. Similarly, for the specific Heathrow scenario selected, while those newly affected was predicted to be 320,700, the number of people newly removed was 264,200 and therefore the net increase of people newly affected was 56,500. We noted Gatwick's comments that the negative impact of noise for those 'newly affected' was likely to be greater than the positive impact of reduced noise for those 'newly removed' and therefore the figures should not be aggregated. We noted, however, that the ads stated the number of "additional people … affected by noise" by expansion and that the overall message was that a much higher number of people would be affected by noise if expansion at Heathrow went ahead. Therefore, in the context of ads promoting expansion at Gatwick, because fewer people would be impacted by noise, we considered that value judgements regarding the relative impact of noise, or lack of noise, on different individuals and communities were not relevant, and that the number of people no longer affected by noise as a result of expansion was significant information that was likely to influence consumers' understanding of, and feelings towards, expansion at both airports, and should have been made clear in the ads.
In addition, while we acknowledged that the figures did appear in the report, we understood that they represented estimates for the number of individuals affected by noise in very particular scenarios and the report contained a number of other estimates based on different possible scenarios. The figures in question relied on a particular measure of noise and the assumption that expansion at Heathrow would result in a new runway, as opposed to an extended runway, and that it would be operating in such a way as to minimise the total number of people affected by noise (T Scenario). We noted, however, that the ads did not include any information regarding the basis of the comparison and did not make clear the specific scenarios that the figures were based on. Therefore, we were concerned that, in the absence of that information, and in light of all the proposal options and the variance in their related noise estimate figures, the ads did not make the basis of the comparison sufficiently clear.
The ads did not make clear that the quoted figures related to the number of people who potentially would be affected in 2050, in comparison with those who potentially would be affected if expansion did not go ahead, plus they did not refer to the number of people who would be "newly removed" as a result of expansion. Also the ads did not make clear the specific expansion scenarios and assumptions that the figures related to. We therefore concluded that readers would not adequately understand the basis of the comparative claim and that it was therefore misleading.
On that point, the ads breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
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.
(Qualification), 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
We noted that the ads did not include any information regarding the source of the figures or the particular expansion scenarios, at both airports, they related to. Therefore, we considered that consumers would not be able to locate and interrogate that information, understand how the figures had been calculated or check that the comparison was accurate. Because of that, we considered that the comparison was not verifiable and concluded that the ads were in breach of the Code.
On that point, the ads breached CAP Code (Edition 12) rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors).
3. Not upheld
We noted the complainants' concerns that the ads did not take into account the differing impact of increased noise for those living in more rural areas, in comparison to those living in more urban areas. As stated in point 1, we considered that consumers viewing the ads would understand that the figures represented the number of people who would be newly affected by noise as a result of both expansion options and that the overall impression of the ads was that expansion of Gatwick would be preferable in terms of the number of new people who would be impacted by noise. We did not consider that there was any implication that the negative impact of that exposure was necessarily equal for all those affected, in all locations. We also considered that most readers would be aware of the airports' contrasting locations and flight paths, and would understand the quoted figures with a basic understanding of the areas likely to be affected by expansion. We did not consider that readers were likely to infer that the impact of noise for all those individuals affected by expansion at either airport would be identical and have a similar bearing on their quality of life. Therefore, on that point, we concluded that the ads were unlikely to mislead.
On that point, we investigated the ads under 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) 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), but did not find it in breach.
Action
The ads must not appear again in their current form. We told Gatwick Airport Ltd to ensure that they made the basis of their comparisons clear and, if their ads included comparisons with identifiable competitors, that they provided sufficient information to allow consumers to verify the comparative claims.
