Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A Facebook post for HTC seen on 7 December 2017 promoted the HTC U11 mobile phone. The ad showed the diver Tom Daley using the phone to take selfie photographs while diving from a board and landing into the swimming pool below with the phone in his hand submerged in the water. On-screen text stated, “Don’t try this stunt, Tom’s a professional. HTC U11 has an IP67 rating. For more information please visit www.htc.com”.
Issue
1. The complainant, who noted that the instructions for the phone stated that it was water resistant in fresh water, challenged whether the ad misleadingly implied the product would work in a pool with chlorinated water.
2. They also challenged whether the ad misleadingly implied that the SIM slot access hole did not need to be covered to preserve the water resistance feature of the product, when they understood that the instructions for the phone required this to be done.
Response
1. HTC Europe Co Ltd t/a HTC said that the mobile telecommunications device known as the HTC U11 was water and dust resistant and had an IP67 rating as defined in the International Standard IEC 60529. They said that classified the degrees of protection provided against the intrusion of solid objects (including body parts like hands and finger) dust, accidental contact and water in electrical enclosures. They said the standard aimed to provide users with more detailed information than using vague marketing terms such as “waterproof”.
HTC said that the IP67 rating was tested in fresh water because there had to be a benchmark for all devices to be tested against and fresh water was that control. They said that the HTC U11 could work in different liquid environments for various periods of time, but that there were too many variations of water temperature and chemical composition to provide a statement that the U11 was compatible with most standard swimming pools. But HTC confirmed that the device had been tested to the IP67 required standards.
HTC said that the IP67 rating ensured that the ingress of water in a harmful quantity was not possible when the HTC U11 was immersed in water under less than one meter deep and for no longer than 30 minutes at room temperature. They said that they did not advocate a user making the phone work, or using it in water and that the ad did not show the U11 being used underwater, though it was submerged to a depth of less than 1 metre for around 5 seconds after use, i.e. when Tom Daley had taken a selfie in the air above the water. HTC said that Tom Daley landed on his feet in the ad and that by landing feet first he was able to stop his penetration into the water and holding the phone above his head meant he was able to keep the U11 within the metre distance required. They said that was discussed in production meetings to ensure HTC stayed within the IP rating. They said that Tom Daley dived from a diving board which was 10 meters high and that the devices used in the ad were still functioning.
HTC said that the U11 could be operated by squeezing the sides of the phone one handed to take a photo and that was the functionality they demonstrated in the ad. They said the phone could also be turned on by touching the screen, i.e. double tap for screen on, and these were not buttons in the sense that an “on/off” or “volume control” was a button. They said the operation of the U11 through those methods was acceptable after being submerged in water as it had no impact on the ability of water to ingress the U11.
2. HTC said that the SIM slot was secure to the IP67 rating and that once the SIM tray was inserted into the U11, it would not allow ingress of water to the IP67 standard. They said the hole in the SIM slot was to release the SIM tray and that there was no additional covering required other than the proper insertion of the SIM tray to ensure the phone was water resistant to the IP67 standard.
Assessment
1. Upheld
The ASA noted that the ad showed Tom Daley diving into the swimming pool for the specific purpose of taking selfie photographs while falling, and that he was shown touching the screen and side of the phone straight after emerging from the swimming pool. We considered that consumers were likely to understand that the phone would work after being submerged in a swimming pool and that it could be used in the way shown in the ad without taking any precautions to avoid damaging the phone after it had been immersed.
We noted that the on-screen text stated “Don’t try this stunt, Tom’s a professional”. However, we considered that this related to diving from the diving board, rather than to the use of the phone while diving, and therefore the qualification was insufficient to counteract the impression created by the ad that the phone could be used in that way.
We noted that HTC said that there were too many variations of water temperature and chemical composition to state categorically that the U11 was compatible with most standard swimming pools. We further noted that the product instructions stated that the U11 was water resistant in fresh water and should not come into contact with swimming pools. The product instructions also stated that the phone was not to be intentionally submerged, and that if it was accidentally immersed in water, pressing the power and volume controls was to be avoided and the phone should not be operated.
We further noted that the phone was water resistant to a depth of 1 meter. While we acknowledged that a professional Olympic athlete such as Tom Daley would be able to dive from a 10-metre high diving board and keep within the 1 metre distance required, we considered it unlikely that a consumer attempting something similar would be able to avoid being submerged to a depth which did not exceed, even briefly, that measurement.
We also considered that it was not made clear in the ad that diving with the phone should be carried out in a particular manner to maintain the water resistance of the product. Nevertheless, we considered that the facts stated in the product instructions meant that the U11 was unlikely to be able to be used in the manner depicted in the ad without risking, or causing damage to the phone.
Because consumers were likely to understand that the product could deliberately be submerged in a swimming pool and that no precautions were required to be taken after it had been immersed to preserve the product’s performance, and because that was not the case, we concluded that the ad exaggerated the capability of the product and was misleading.
On that 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), 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 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration)
2. Not upheld
We acknowledged that the ad did not explicitly show the SIM slot on the phone being closed by Tom Daley prior to his diving with it into the swimming pool. However, we considered that consumers would understand that the slot should be closed, unless they were putting in, or removing a SIM card from the slot and therefore consumers would assume that the slot should remain closed to ensure that the product’s water resistance properties were maintained.
We understood that no additional covering was required over the SIM tray release hole and acknowledged that as long as the SIM tray was properly inserted into the phone, the SIM slot was water resistant to the IP67 standard.
For those reasons we concluded that the ad was not misleading.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), but did not find it in breach.
Action
The ad must not appear again in its current form. We told HTC Europe Co Ltd to ensure that they did not exaggerate the water resistance capability or performance of their products.
