Background
Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
Ad description
A website for the Industrial Noise & Vibration Centre, www.invc.com, an engineering consultancy, seen on 14 May 2018, featured a page titled “Wrist mounted vibration transducers - not again!”, which stated in bold “Once more there are claims that wrist/glove mounted vibration transducers can be used to assess HAV risk in operators as per the British Standard (BS 5349). No they can’t”. The web page featured text stating that before using wrist mounted transducer measurement systems people should consider four factors, including, “It is specifically deprecated by the HSE. Their recent guidance states: ‘There is currently no wrist or glove mounted device which measures vibration suitable for use in a vibration risk assessment’. Hence as wrist (or glove) mounted transducers do not measure according to ISO/BS 5349, the data they produce is not related to the EAV or the ELV dose values and cannot be used for comparison with them in a risk assessment. Those are the facts. This could not be clearer …”. Under the heading “Defending claims” the web page stated, “Now imagine you are the barrister for a HAV injury claimant. Based on the above, just how easy would you find it to drive a coach and horses through a risk management defence based on wrist-mounted vibration data capture? Potentially a very costly mistake…”.
Issue
Reactec Ltd, a manufacturer of wrist mounted vibration monitors, who believed the ad suggested that such products were not lawful or appropriate for risk management, challenged whether the following claims were misleading and could be substantiated:
1. “… as wrist (or glove) mounted transducers do not measure according to ISO/BS 5349, the data they produce is not related to the EAV or the ELV dose values and cannot be used for comparison with them in a risk assessment”; and
2. “Now imagine you are the barrister for a HAV injury claimant … just how easy would you find it to drive a coach and horses through a risk management defence based on wrist-mounted vibration data capture? Potentially a very costly mistake …”.
Response
1. Industrial Noise & Vibration Centre Ltd (INVC) said the claim was based on Health and Safety Executive (HSE) guidance on the Control of Vibration at Work Regulations 2005 (the Regulations), legislation which imposed duties on employers to reduce and control the risks from exposure to hand–arm vibration.
They maintained there was only one way to lawfully measure hand–arm vibration and that was on the tool itself (rather than on the wrist), in accordance with the requirements of British Standard BS EN ISO 5349 (the Standard). They said that wrist (or glove) mounted devices did not have that capability and therefore could not measure hand–arm vibration to the required standard. They believed that while such a device could sense vibration at the wearer's wrist, it could not measure hand–arm vibration as required by the Regulations.
They explained that the EAV and ELV dose values referred to in the ad were the "Exposure Action Value" and the "Exposure Limit Value" as defined in the Regulations. Those values combined the measured vibration (as set out in the Standard) with the time for which the tool was used to establish an operator dose. They understood that a wrist (or glove) mounted device would not measure the EAV or ELV, which the Regulations required.
They provided a HSE document titled "Hand–arm vibration, the Control of Vibration at Work Regulations 2005. Guidance on Regulations" (the Guidance). They pointed out that a section about vibration measurement stated that the vibration magnitude of hand-held power tools was represented by the frequency-weighted root mean square (m/s2) of the surface of the tool, handle or workpiece in contact with the hand. It did not state that the measurement could be taken at the wrist.
INVC also provided a second HSE document titled "Eight Questions about Vibration Exposure Monitoring" (Eight Questions Document) and pointed out that one question stated "Do hand–arm vibration measurements need to be taken 'on the tool'?". The answer was that yes, hand–arm vibration measurements should be made with the transducer firmly attached to the vibrating surface at the point where the vibration entered the hands, and that any measurement away from the palm of the hand or where the measurement position was on the back of the hand, fingers or wrist was unlikely to provide reliable measurement. It also stated there was currently no wrist or glove mounted device which measured vibration suitable for use in a vibration risk assessment. It further specified that if a hand–arm vibration measurement system was to be used then it should measure according to the requirements of the Standard.
2. INVC said the challenged claim was a question and not a statement. They also maintained that, provided the statement in the claim outlined in the first issue was valid, then the claim was a very fair question. They did not believe it was unreasonable to question the defensibility of a claim brought under the Regulations which was based on vibration exposure data that had been produced by a device that did not comply with the Standard or Guidance and they stood by their statement that a claimant's barrister would question the validity of risk assessment data produced by a wrist-worn device.
Assessment
1. Not upheld
The ASA considered traders were likely to interpret the claim "... as wrist (or glove) mounted transducers do not measure according to ISO/BS 5349, the data they produce is not related to the EAV or the ELV dose values and cannot be used for comparison with them in a risk assessment" in conjunction with other claims in the ad, such as "Wrist mounted vibration transducers - not again!" and "... there are claims that wrist/glove mounted transducers can be used to assess HAV risk in operators as per British Standard (BS5349). No they can't" to mean that because wrist mounted transducers did not measure hand–arm vibration in accordance with the Standard and did not produce ELV or EAV data that was required by the Regulations, they were not appropriate for risk assessments of hand–arm vibration.
We understood that the Regulations set out a requirement for employers to reduce and control the risks from hand–arm vibration and, as part of that requirement, they had to carry our risk assessments. We noted that the Guidance and Eight Questions Document both stated that exposure to hand–arm vibration should be measured in accordance with the Standard. We also noted that the Eight Questions Document explained that to comply with the Standard, vibration measurements should be made on the vibrating surface at the point at which the vibration entered the hand. It also stated that any measurement away from the palm of the hand, such as on the wrist, was unlikely to provide a reliable measurement and that there was currently no wrist or glove mounted device that measured vibration suitable for use in a vibration risk assessment.
We contacted the HSE who confirmed that the Regulations and Standard made it clear that vibration was characterised by the acceleration of the surface of the tool in contact with the hand. They said that measurements taken elsewhere, including the wrist, would not provide the data required by the Standard or the Regulations.
We considered that because we had seen evidence that wrist mounted transducers did not measure hand–arm vibration in accordance with the Standard, did not provide ELV or EAV data that was required by the Regulations and were not therefore suitable for risk assessments of hand–arm vibration, as set out by the Regulations, the claim was unlikely to mislead.
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 3.7 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), but did not find it in breach.
2. Not upheld
We considered the claim "Now imagine you are the barrister for a HAV injury claimant ... just how easy would you find it to drive a coach and horses through a risk management defence based on wrist-mounted vibration data capture? Potentially a very costly mistake ..." would be interpreted by traders to mean that it could be problematic to defend a claim for Hand–Arm Vibration Syndrome (HAVS) caused by the occupational use of vibrating tools if a risk assessment had been based on data captured by a wrist mounted device, and that a decision to use such a device may, therefore, put traders at risk of financial loss. Although a part of the claim was presented as a question, we considered that traders would understand the overall statement by INVC, an engineering consultant, to be an objective claim relating to what might happen in the event of defending a claim for HAVS.
The HSE explained that the risk assessment requirement was set out in Regulation 5, and pointed to the relevant sections of the Guidance that further explained those requirements. They said that as any risk assessment had to be suitable and sufficient, there was a requirement for exposure to hand–arm vibration to be evaluated in accordance with the procedures set out in law. Such procedures included measuring the acceleration of the surface of the tool in contact with the hand.
We considered that because INVC had shown that wrist mounted devices did not measure hand–arm vibration in accordance with the Standard, or produce the data required by the Regulations, essentially because they did not measure vibration where the surface of the tool made contact with the hand, the data captured by a wrist mounted device was likely to be problematic when defending a claim for exposure to hand–arm vibration and therefore a decision to use such devices may put employers at risk of financial loss. We therefore concluded that the claim was unlikely to mislead.
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 3.7 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), but did not find it in breach.
Action
No further action necessary.
