Background
Summary of Council decision:
Five issues were investigated, of which two were Upheld and three were Not upheld.
Ad description
Claims on the website www.alwaysdiscreet.co.uk and a TV ad, seen in November 2014, promoted Always incontinence products.
a. Claims on www.alwaysdiscreet.co.uk stated “UP TO 40% THINNER*. Smaller text at the bottom of the web page stated “New Always Discreet Liners and Pads use an “ultra” thin technology instead of a traditional thick core. This means that they are up to 40% thinner* compared to the leading brand, for dance-all-you-want discreet protection. Their ultra-absorbent core turns liquid into gel so even though they are ultra thin, they still absorb 2X more than you may need** .... *percentage varies across line-up. **based on average consumer loading”. The claims were repeated across the website, including on the product pages.
The product pages also gave a ‘droplet’ rating for each product in the range to indicate the level of absorbency; for example the “Always Discreet incontinence panty liners For incontinence” had three drops “Absorbency” and the “Always Discreet Small incontinence pads For incontinence” had two drops “Absorbency” and stated “For occasional leakage when sneezing or coughing causing wetness”.
The product page for “Always Discreet Normal incontinence pants” stated “Up to 100% comfort and protection”.
b. A TV ad featured scenes of women dancing in different scenarios and visuals of the product and its packaging. The voice-over stated, “Introducing new Always Discreet for Sensitive Bladder”. The “Always Discreet” product and the “leading brand” product were featured on screen, as the voice-over stated, “Up to 40% thinner, great comfort, absorbs two times more than you may need” and on-screen text stated “vs. leading brand. % varies across line-up. Based on average consumer loading. 80% of 114 women agree”.
Issue
SCA Hygiene Products UK Ltd, who produced the incontinence product Tena Lady, which they considered would be understood to be the “leading brand” with which the advertisers had compared their product, challenged whether:
1. the basis of the comparison in the claim “Up to 40% thinner” in ads (a) and (b) was misleading, because they believed it was not clear whether equivalent products from Always and the “leading brand” had been compared;
2. the claim “Up to 40% thinner” in ads (a) and (b) was verifiable;
3. the claim “2X more than you may need” in ads (a) and (b) exaggerated the capacity of the product;
4. the droplet absorbency ratings used in ad (a) were misleading, because Tena Lady used an eight-droplet absorbency rating, which they believed was well established and known to consumers, and they considered Always’ droplet ratings suggested that the products were directly equivalent to the Tena product with the same droplet rating; and
5. “Always Discreet Pants … Up to 100% ... protection” in ad (a) was misleading and could be substantiated, because it did not make clear whether the pants could cope with heavy urine flow produced in a short space of time.
Response
1. Procter & Gamble (Health & Beauty Care) Ltd (P&G) said the claim was fully supported by externally generated calliper data which compared each of P&G’s liners and pads with the corresponding liner or pad within the Tena product range. The tests involved measuring the centre of each product, the key absorbent area, and were carried out by one of Europe’s leading providers of non-medical laboratory analysis. In addition, those results were further verified against the calliper data SCA had on their packaging and/or product information from their website or brochures, regarding Tena products. The SCA published numbers matched those measured by the testing house, thereby confirming that they had used the same approach to measure and report thickness.
They asserted that the data showed that Always Discreet products were much thinner than the corresponding Tena liner or pad, with some being 64% thinner. They provided a copy of the results from the testing house and their data analysis.
When developing their products, P&G said they had an in-depth understanding of the products that were available on the market, including Tena products. Therefore, they could easily identify which product would be comparable to their Always Discreet products. They explained that when purchasing an incontinence product, a consumer’s key consideration was the level of protection offered by the product, in terms of the product’s ability to prevent leaks. They said protection meant more than the absorbency capacity of the product as it could be affected by many additional factors such as how fast the product could absorb urine and the impact of the pressure of the user onto the product (which affected risk of leakage and damp skin). Protection was obtained by the combination of the product composition and design features – such as wings, the method of product fixation, area coverage, leak barriers and the materials used in the absorbent core – while absorbency capacity was only a measure of the amount of fluid that, in principle, could be retained by the absorbent material in the product. They asserted that the Always and Tena products they had compared were equivalents in terms of the level of protection offered and, as per the relevant International Standard, they had confirmed that through extensive consumer research.
P&G explained that prior to launching their product, they had trialled it by asking users of the Tena range to try the Always product P&G believed to be equivalent to the Tena product they usually used, and provide feedback on their performance in terms of providing reliable protection and the level, and speed of, absorbency. The results provided demonstrated that the results achieved by both product ranges were very similar. P&G believed that that evidence demonstrated that the Always Discreet range met consumers’ requirements for absorbency capacity, ability to retain liquid and speed of absorption, and were therefore equivalent and could be fairly compared. They also provided similar post-launch survey data of women who had previously used an incontinence product from a competitor range, including Tena users, to record their general satisfaction with the Always product and the leakage protection compared to the competitor range. Again, the results for those in the sample who had previously used a Tena product indicated high satisfaction levels and that the leakage protection was similar to or much better/somewhat better than Tena.
P&G also provided data, discussed in point 3 below, showing the average volume required by users of incontinence products, which demonstrated that, in general, those sampled only used a small percentage of the maximum capacity of a product. Regardless of any differences between the maximum absorbency capacity of the Tena Lady and Always ranges, P&G believed they were still equivalent, as the capacity of the Always range was more than sufficient for users’ needs.
Clearcast responded in relation to ad (b) only. They said they had received technical data, which they had shared with a consultant, and were content that it met the threshold for an ‘up to’ style claim and that the comparison was on a like-for-like basis. Although some products were less than 40% thinner, a sizeable proportion reached the 40% figure, with some exceeding it. As the Always products were thinner across the range and the comparison was carried out on a like-for-like basis, they didn’t feel further qualification was needed for consumers to understand the claim. On that basis, they felt that the ad was not likely to mislead and the comparison had been fairly carried out.
2. P&G believed that consumers would be able to identify which Always and Tena products were equivalent because manufacturers had in practice developed their own standard to help consumers choose within the range of products available. Always Discreet products followed a similar description to Tena products, which allowed consumers to easily identify, among all products available on the market, which products would be comparable to the Tena products. They provided images of the Tena and Always Discreet products to represent what consumers would see in store, which they believed demonstrated how consumers could easily navigate between product type (liner, pads, moderate pads, etc.) using colour coding and between variant types, using product name (normal, long, etc.) and the number of drops pictured, representing the level of protection offered by the product.
Clearcast considered that Tena were not identifiable from the ad. They noted that no branding or logos appeared on screen and the products were featured side-on, so any distinctive shape was not visible. They believed comparisons ‘vs the leading brand’ were an established formula in other product sectors and so, on that basis, they did not feel that the verifiability requirements of the Code applied.
3. P&G highlighted that both claims were qualified by the text “based on average consumer loading”. They said the claim was not comparative, as it made explicit reference to consumers’ needs. The intention behind the claim was not to encourage consumers to choose products with a lower level of protection but to reassure them that P&G’s new product would deliver the protection they needed and that they would not be exposed to embarrassing leaks, even if they suddenly experienced higher loadings than normal.
They said they had carried out, via another third party, studies to understand the needs of consumers, to establish what an average urine load per variant (normal, long, long plus, etc.) would be and to ensure that their products delivered an effective level of protection to consumers. They compared the average load with the measured absorbency capacity in order to work out how much more each variant could absorb when compared to the average load of such variants. They provided information regarding how the methodology used to calculate the average load/average consumer need for each type of product and the absorbency capacity of each product, and a copy of the results, including scatter graphs showing the distribution of the results for two products: Always Discreet Small and Always Discreet Normal.
Clearcast responded in relation to ad (b) only. When considering the ad, they said they received technical data from the advertiser which was reviewed by a consultant. Clearcast were satisfied that the claim was a true representation of the products’ capabilities. On that basis, they felt the claim was adequately substantiated and not an exaggeration.
4. As discussed in point one, above, P&G said their droplet system communicated the protection offered to consumers within their product range, which was influenced by a number of different factors. They noted that the droplet system was not used in the industry as a comparison of absorption capacity of products versus competitors’ products, but instead was used to communicate to the consumer the product’s level of protection.
P&G also highlighted that a post launch market survey and the low number of complaints they had received regarding the product range demonstrated that consumers were happy with the products and were able to choose the correct variant based on the droplet system.
5. P&G said consumers understood “protection” to mean that the products prevented leakages on clothes. The claim was based on a large scale consumer study among women who used incontinence pants and who were asked to use Always Discreet Pants. The women were asked to complete a diary, recording after each product change whether they had experienced leakage on their clothes (yes or no). P&G also collected information regarding the wear time before a user switched products and each user’s assessment of their urine loss over the trial period. At the end of the trial period, they were also asked to give the product an overall rating for “protection from leakage on clothes” on a scale from “Excellent” to “Poor”. They said the results showed that 97% of all worn pants did not result in leakage on clothes and that the circumstances in which leakages occurred were not related to wear time (within reason) or the load amount. Therefore, only in very rare cases did a consumer have a small leak. Further, they highlighted that the claim was prefixed with ‘up to’, and consumers were familiar with such claims and understood them to mean a maximum that would not always be achieved.
They highlighted that the product would deliver great protection under reasonable conditions. They also believed that consumers would understand that, and not expect a product to deliver under unusual or unreasonable conditions such as very heavy urine flow or, in the event the consumer did not change the product within a reasonable period of time.
Assessment
1. Not upheld
The ASA noted that ad (a) stated “UP TO 40% THINNER*” and that the claim was clearly linked to the qualification “*percentage varies across line-up”. We considered it was clear from the presentation of the claims that Always products were up to 40% thinner compared to the leading brand, when dry. We also noted that, in ad (b), the claims “Up to 40% thinner” appeared in the voice-over, as two sets of pads were shown, along with on-screen text stating “vs. leading brand. % varies across line-up”. Therefore, we considered it was clear from the ad that the comparison was with the “leading brand”.
While we acknowledged that the ad did not explicitly reference Tena, we considered that consumers requiring incontinence products would be familiar with the sector and understand the leading brand to be Tena Lady, and therefore, expect the comparison to be with the equivalent Tena Lady products. We also considered that, when choosing between incontinence products and brands, a key motivation for consumers would be the level of protection offered by a product, in relation to its size and thinness. Therefore, we considered that consumers would expect the claim to mean that Always products were up to 40% thinner than their Tena Lady equivalents, in terms of the level of protection offered, and would anticipate that if they bought an Always product it would meet the same need as the Tena Lady equivalent.
We noted that P&G had compared each of the products in the liner and pad range with those they believed to be equivalent in the Tena Lady range, which included the majority, but not the entire number of products available in the range. We reviewed the test data supplied and noted that ten of each product had been measured with callipers, when dry, and an average taken, and the results achieved for the Tena Lady and Always products compared. The results showed that all of the Always products were thinner than the comparator products selected, and six out of the eight Always products tested were 40% thinner, or more, than the Tena Lady comparator products selected.
We understood that when choosing the equivalent Tena Lady products, Always had considered a number of factors, including how the products were fixed in place, the product size, any barriers to leaks, the absorbent technology utilised by both and their absorbency capacity. However, we understood that their key method for proving equivalence was consumer research indicating that consumers believed the Always products presented as comparators for specific Tena products, met the same need and delivered the same level of protection. Given that a number of different factors interacted to influence the protection provided by an incontinence product, we considered that isolated laboratory measurements of each factor were unlikely to be representative of user experience. We therefore accepted that data showing consumers’ perceptions of the products and how they compared, could be sufficient to demonstrate equivalence, as long as the data collected was robust.
We understood that women using incontinence products would not necessarily require a similar capacity on a daily or regular basis, given the nature of incontinence and the variability in load. That was supported by P&G’s own data comparing the capacity of their products with the average load, as there were significant differences in the volume of urine collected, including a number of entries where the volume absorbed appeared to be 0 g. Given the variability in the capacity required by users day-to-day, we considered the performance of the products when users experienced irregular and heavy loading, relative to their typical urine loss, would be of particular importance. Therefore, we considered that any data provided would need to involve a sufficient number of participants, products, and take place over an adequate length of time to ensure it accurately reflected the performance of the products when required for peak loading.
We reviewed the consumer research data and noted that three Always products had been included in the pre and post-launch surveys. We understood that all products in the range utilised the same technology and that the three included in the consumer research were the bestselling variants across the range. In addition to collecting participants’ feedback in relation to the protection achieved and absorbency of the trialled products, when tested for a week in accordance with participants’ usual routine, both surveys required self-reporting of the intensity of urine loss during the test period. Both indicated that users rated the Always products highly, and, where relevant, the ratings were broadly equivalent to those given by individuals trialling Tena products. The post-launch survey also included a breakdown of how participants rated the protection achieved by the Always product in comparison with Tena, for which the Always products were rated favourably. However, there was no way of determining how any of the ratings related to those participants who had experienced heavier urine loss. In contrast, the pre-launch survey demonstrated that those participants who had experienced heavier loading (“stream” or a “sudden gush/large amount”) still rated the product highly in terms of absorbency and for providing reliable protection. Those results were broadly equivalent to those reported by participants who were trialling Tena products. We noted that both surveys included the views of individuals who had experienced heavy loading during the trial period, and that the pre-launch survey also showed that those individuals still scored the product highly in relation to absorbency and the level of protection achieved. Therefore, we considered that the consumer perception data provided was sufficient to prove that the products P&G believed to be equivalents were able to meet the same needs for consumers as their Tena Lady comparators.
Because we considered the comparator products selected as the basis of the claim were broadly equivalent in terms of the level of protection provided against loading that was heavy relative to the user’s typical urine loss, which we considered to be of particular significance to consumers when deciding between incontinence products, and P&G had provided evidence to show that they were up to 40% thinner than their Tena counterparts, we concluded that the claim had been substantiated and was unlikely to mislead.
On that point, we investigated ad (a) under CAP Code (Edition 12) rules 3.1 3.1 Advertisements 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), 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration), and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with Identifiable Competitors), but did not find it in breach
On that point, we investigated ad (b) under BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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), 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration), and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with Identifiable Competitors), but did not find it in breach.
2. Upheld
To fulfil the verifiability requirements of the Code, an ad that featured a comparison with an identifiable competitor needed to include, or direct a consumer to, sufficient information to allow them to understand the comparison, and be able to check the claims were accurate, or ask someone suitably qualified to do so.
As stated in point 1, above, while Tena Lady was not explicitly named in the ads, we considered that consumers would readily identify them as the ‘leading competitor brand’ and therefore understand that the “40%” claim related to Tena Lady. We noted that the website did not include any further explanation as to which Tena Lady products had been selected and how the comparison had been carried out. Similarly, ad (b) did not direct viewers to any additional information regarding the comparison and the basis of the claim. In the absence of that information, we did not consider that the ads allowed consumers or competitors to verify the comparison and therefore concluded that the claim was in breach of the Code.
On that point, ad (a) breached CAP Code (Edition 12) rule 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. (Comparisons with Identifiable Competitors).
On that point, ad (b) breached BCAP Code rule 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. (Comparisons with Identifiable Competitors).
3. Upheld
We noted that in both ads the claim “2X more than you may need” appeared/ was stated in close proximity to the claim “Up to 40% thinner”. However, in both ads the “2X” claim was qualified with text which stated “based on average consumer loading”. We considered that most consumers would understand the claim to mean that although the Always range was thinner than the Tena Lady range, their products still had a large absorbency capacity and could meet a user’s needs even if they experienced a heavy load.
We reviewed the data provided by Always which compared the maximum absorbency capacity of the Always range with the average load the products had been exposed to when used. We noted that the results reflected tens of thousands of individual products which had been used by over 500 women, and that a summary of all the data points demonstrated, for each of the eight Always products within the range, that the maximum capacity of the products was over twice the average load of the product. We noted from the information supplied that each participant had been given a minimum of two product variants, and was asked to use each variant for a week in accordance with their usual routine. We reviewed the two scatter graphs supplied and noted the large variability between the loads recorded, including the fact that a number of users recorded a result of 0 g. We also noted that, from the information provided, it was not possible to tell whether particular users were achieving consistent results, or whether the capacity required by individual users varied day-to-day, which we understood to be much more likely. While we accepted that the results shown in both graphs were concentrated towards the lower end of the scale, the number of points at the higher end of the scale suggested those results were not anomalous. We were therefore concerned that to use an average as the basis of a comparison between the load recorded by users and the maximum capacity of the products was likely to unfairly distort the results and suggest the products had a greater absorbency capacity than was the case.
While we acknowledged that both ads made clear that the claim was based on “average consumer loading”, we considered that consumers would not understand how the average would be influenced by a broad range of results or relate to the peak load requirements of users. In light of that, we considered that P&G had not provided adequate substantiation to demonstrate that the Always Discreet range provided two times the absorbency capacity that the average user would require and concluded that the claim was misleading.
On that point, ad (a) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements 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), 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration), and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with Identifiable Competitors).
On that point, ad (b) breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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), 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration), and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with Identifiable Competitors).
4. Not upheld
We noted that each product was accompanied with a droplet rating system, which, for six of the products indicated a scale out of a maximum of ten. While we noted P&G’s comments that the scale represented the level of ‘protection’ offered by the product, the “Products” page was headed with a scale presenting the range from “Lightest Absorbency” to “Heaviest Absorbency”. Further, each individual product page referred to “Absorbency” alongside the droplet rating, as opposed to “Protection”. We considered that consumers would understand the droplet rating to relate to the products’ absorbency and that it acted as a rough guide regarding the volume of liquid they could absorb. We understood that droplet rating systems were also adopted by other marketers including for incontinence products, such as Tena Lady, and that it was also utilised for other products, such as sanitary towels. Therefore, we considered that consumers would be aware of the concept of an absorbency rating system, but wouldn’t expect it to be a standardised system that indicated the same level of absorbency across different brands and different products. In light of that, we considered consumers would understand the Always rating system to be a tool by which they could compare products from within the same brand, and not necessarily across different brands, and work out, within a particular range, which product was most appropriate for their needs. Therefore, we concluded that the claims were not misleading.
On that point, we investigated ad (a) under CAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), and 3.38 (Other comparisons), but did not find it in breach.
5. Not upheld
We considered that most consumers would interpret the claim “up to 100% protection” to mean that in the majority of cases, when used as per the instructions, the product would prevent any leakages on a user’s clothes. We considered, however, that consumers would appreciate that in exceptional circumstances, such as a very heavy load in a short amount of time, or if a product was not changed in accordance with the instructions, a user might experience leakages.
The claim was based on a study that involved a number of participants trialling one pack of the product over the course of a week, in accordance with their usual routine. They were asked whether, when wearing the product, they had experienced leaks or not. The participants had also been asked to give the product an overall rating for “protection from leakage on clothes”. We understood from the results provided that 97% of the products used during the study did not result in leaks and that none of the participants gave the product a “Poor” rating in relation to protection. We considered that that evidence was sufficient to show that in the vast majority of cases users had not experienced any leaks. In light of that, we concluded that the claim had been substantiated and was unlikely to mislead.
On that point, we investigated ad (a) under CAP Code (Edition 12) rules 3.1 3.1 Advertisements 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), and 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration), but did not find it in breach.
Action
The ads must not appear in their current form again. We told Procter & Gamble (Health & Beauty Care) Ltd, in future, to ensure they held sufficient evidence to substantiate the claims consumers would understand as objective, and to ensure that any comparative claims with identifiable competitors were verifiable.
