Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Four ads for the “ORA Technology” range of cordless vacuum cleaners, on the advertiser’s own website, www.blackanddecker.co.uk, viewed on 30 March 2015:
a. The website home page featured a scrolling banner which included the claim “Picks up first time again and again and again”.
b. A web page describing the ORA Technology range included the claim “Picks up first time again and again and again*”. Text at the bottom of the web page stated “*visible debris on even hard floor surfaces”.
c. A web page for the “2 in 1 Stick Vac with ORA technology” stated “Powerful airflow and motorised beater bar provides one pass pick up performance, even with heavier debris”.
d. A web page for the “Hand Vac + Floor Extension with ORA Technology” also stated “Powerful airflow and motorised beater bar provides one pass pick up performance, even with heavier debris”.
Issue
Dyson Ltd challenged whether the following claims were misleading and could be substantiated:
1. “Picks up first time again and again and again” in ad (a); and
2. “Powerful airflow and motorised beater bar provides one pass pick up performance, even with heavier debris” in ads (c) and (d).
3. They also challenged whether the claim “Picks up first time again and again and again*” in ad (b) was contradicted by the qualifying text “*visible debris on even hard floor surfaces”, and whether the qualifying text was presented clearly.
Response
1. Stanley Black & Decker UK Ltd (Stanley Black & Decker) said they carried out two different types of in-house testing of the two ORA Technology vacuum cleaner products – an upright ‘stick’ vacuum cleaner and a hand-held vacuum cleaner, both of which were battery-powered. One set of tests measured the pick-up performance of both vacuum cleaners on a hard flat floor using section 5.1 of the International Electrotechnical Commission (IEC) Standard 60312 (‘the IEC Standard’). That IEC Standard required pick-up performance to be tested using a specific type of dust. However, Stanley Black & Decker said that they also wanted to demonstrate the performance of the vacuum cleaners using various types of common household debris of varying size and weight, so they had devised additional tests (‘the SBD tests’), the methodology of which was adapted from that of the IEC Standard. The types of debris used were flour, salt, lentils, pumpkin seeds, popping corn, macaroni, cereal and raisins.
The IEC Standard tests required that the weight of dust remaining after a test run of the vacuum cleaner be compared with the weight of dust before the run, and that an average must be taken from three separate test runs. Stanley Black & Decker said those tests found an average pick-up performance of over 99% for both vacuum cleaners. The SBD tests were measured on a pass/fail basis, conducted over one test run, as to whether there was visible debris left after the first pass of the vacuum cleaners. Stanley Black & Decker said they could not test using the weight measurement method in the IEC Standard when the debris was of varying type, size and weight, because it was not a consistent approach. They said both vacuum cleaners picked up visible debris on hard flat floor surfaces first time, and medium-to-large debris from carpets first time. They said that only very fine debris on carpets was not picked up at the first attempt. They provided copies of the test results and a copy of the SBD test methodology. They said they were willing to carry out the testing again if required.
Stanley Black & Decker said that the ad, which appeared on the home page of their website, was intended to encourage consumers to seek further information and clarification about the ORA Technology vacuum cleaners by clicking on the banner which linked to a page about the ORA Technology (ad (b)). They said the qualification that the claim related to “visible debris on even hard floor surfaces” was clearly presented on that page. They considered that qualification, therefore, clarified the claim “Picks up first time again and again and again” in ad (a). They added that, where the claim “Picks up first time again and again and again” appeared in their advertising, it was only used in conjunction with imagery or content which showed the vacuum cleaners being used on common hard floor surface types.
2. Stanley Black & Decker said the claim was incorrect and had been amended to state “Powerful airflow and motorised beater bar for optimized pick up performance, even with heavier debris”.
3. Stanley Black & Decker said they considered the claim “Picks up first time again and again and again*” did not communicate to consumers that the vacuum cleaners would pick up 100% of debris first time, every time, on all floor surfaces. They said the qualification was a supporting caveat to that claim, which was intended to explain the claim and not to contradict it or mislead a consumer. They considered the qualification clearly explained what the claim represented and felt the positioning and size of the qualification relative to the primary claim was adequate. They said the font size was equal to that of the product categories, which were listed below the qualification in the footer section of the web page. However, they were willing to amend the presentation of the qualification if necessary.
Assessment
1. Upheld
The ASA noted Stanley Black & Decker believed the claim “Picks up first time again and again and again” was clarified by small print at the bottom of ad (b), which could be accessed by clicking on ad (a). However, we considered that due to its presentation, consumers would understand the claim in ad (a) as a standalone, unqualified claim that the advertiser’s ORA Technology vacuum cleaners would pick up all types of debris on the first pass of the cleaner, from all common floor surfaces, the vast majority of the time, in normal domestic use (i.e. that the performance was maintained as the dirt receptacle filled).
CAP Guidance on “Vacuum cleaner marketing” stated that marketers should ensure that they carried out appropriate tests that followed, or were of an equivalent standard to, the current relevant IEC Standard to support all objective claims regarding vacuum cleaner pick-up performance. The IEC Standard tested a vacuum cleaner’s ability to pick up dust, which we understood was the best measure of a vacuum cleaner’s overall pick-up performance, from carpet, flat hard floors and hard floors with crevices.
We reviewed the test data submitted by Stanley Black & Decker and took expert advice. For the tests conducted using the IEC Standard, Stanley Black & Decker used a version of the IEC Standard from 2008, which used a zigzag pattern when passing the vacuum cleaner over the dust, rather than the updated 2013 version which used a ‘double stroke’ pattern. Stanley Black & Decker believed that using the zigzag pattern rather than the ‘double stroke’ pattern would not impact the results of the testing. However, we noted that they had not provided evidence to that effect and considered that the methodology in the most up-to-date IEC Standard should have been followed. We also noted Stanley Black & Decker had only tested the vacuum cleaners using the IEC Standard on a hard, flat floor surface; they had not used the IEC Standard to test the performance of the vacuum on carpet, or on hard floor with crevices. They had also not tested the performance of the vacuum cleaners when the dirt receptacles were ‘loaded’. Because Stanley Black & Decker had not used the most up-to-date IEC Standard, had not tested on all three surfaces as required by the IEC Standard, and had not tested whether the pick-up performances of the vacuum cleaners were maintained as the dirt receptacles filled, we concluded the IEC Standard test results presented were not adequate to support the claim in the ad as it would be interpreted by consumers.
The SBD tests were adapted from the IEC Standard methodology. We understood the methodology differed in that it used different types of debris, a different ‘stroke’ length (although the SBD tests did use the ‘double stroke’ pattern from the most up-to-date version of the IEC Standard) and the vacuum cleaners’ dirt receptacles were not cleaned before each test run as required by the IEC Standard. Additionally, the IEC Standard required that three test runs were conducted on each floor surface, resulting in a final percentage calculation measuring the average pick-up performance over the three test runs, whereas the SBD tests performed only one test run per debris type on each floor surface and recorded the results on a pass/fail basis as to whether any visible debris was left behind. The SBD tests also did not test whether pick-up performance was maintained as the dirt receptacle filled.
We acknowledged that some aspects of the SBD tests followed the IEC Standard. We noted Stanley Black & Decker’s explanation of why they had not used the method of weight measurement required by the IEC Standard but we were concerned that that could have an impact on the equivalency of the test results. Most importantly, we understood the IEC Standard’s requirement that each test be conducted three times in order to come to an average overall result meant that the findings had a greater statistical significance than if each test was conducted only once Stanley Black & Decker’s use of only one test run, therefore, did not reproduce the same level of statistical significance as the IEC Standard. We concluded that the SBD tests were not of sufficient equivalence to the current relevant IEC Standard to be adequate substantiation for advertising claims about pick-up performance.
Because the SBD tests were not adequate to support advertising claims for pick-up performance and the IEC Standard tests Stanley Black & Decker had conducted were not the most up-to-date, had not tested the vacuum cleaners’ performance on carpet and hard floor with crevices, and did not test whether pick-up performances were maintained as the receptacles filled, we concluded the claim “Picks up first time again and again and again” had not been substantiated and was therefore misleading.
On that point, ad (a) 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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
2. Upheld
We considered consumers would interpret the claim “Powerful airflow and motorised beater bar provides one pass pick up performance, even with heavier debris” to mean that in the vast majority of cases the vacuums would pick up all types of debris, including heavier debris, from all types of floor surface, with the first pass of the vacuum cleaner, in normal domestic use.
As referenced above, we understood that the best measure of a vacuum cleaner’s pick-up performance was its dust removal ability and we therefore considered that tests conducted to the IEC Standard would be sufficient to substantiate general claims about overall pick-up performance. However, we considered that, if advertisers chose to make claims about the pick-up performance of their products in relation to specific types of debris which did not fall within the testing processes of the IEC Standard, they should conduct their own tests, of equivalent standard to the IEC Standard, which demonstrated the performance of the vacuums, specifically in picking up the type of debris referenced.
For the reasons stated above, we considered that neither the IEC Standard tests conducted by Stanley Black & Decker nor the SBD tests were adequate to substantiate claims that the vacuum cleaners would pick up all types of debris from all types of floor surface, with the first pass of the cleaner, as the receptacle filled. We also considered that, because they were not of an equivalent standard to the IEC Standard, the SBD tests were not adequate to substantiate claims specifically in relation to the performance of the vacuum cleaners in picking up heavier debris. We concluded the claim “Powerful airflow and motorised beater bar provides one pass pick up performance, even with heavier debris” had not been substantiated and was therefore misleading.
We noted Stanley Black & Decker’s comment that the claim was incorrect and the wording “…provides one pass pick up performance” had been amended to “…for optimized pick-up performance”. We considered, however, that consumers would interpret that claim in the same way that they would interpret the original claim. We therefore considered that the substantiation provided was also not adequate to support the amended claim.
On that point, ads (c) and (d) 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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
3. Upheld
The claim “Picks up first time again and again and again*” was presented in large, capitalised text at the top of the webpage and the associated qualification was in very small print at the bottom of the web page, which was not visible unless website visitors scrolled down the page. We considered that, because the qualification was not visible to consumers reading the headline claim, and was in very small, easily overlooked print at the bottom of the web page, the qualifying text was not presented to consumers sufficiently clearly.
Notwithstanding that, we considered that even if the qualification had been presented immediately following the headline claim it would be contradictory, because the headline claim implied that the vacuum cleaners picked up all types of debris first time, from all types of floor surface, as the receptacle filled, whereas the qualification stated that the claim applied only to even (hard) flat floor surfaces.
We concluded ad (b) breached the Code because the qualification was not presented clearly, and, in any case, contradicted the claim it was intended to clarify.
On that point, ad (b) breached CAP Code (Edition 12) rules
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification).
Action
The ads must not appear again in their current form. We told Stanley Black & Decker to ensure that, for vacuum cleaner pick-up performance claims, they held test data that followed, or was of an equivalent standard to, the most up-to-date IEC Standard. We also told them to ensure that qualifications were presented clearly and did not contradict the claims they were intended to clarify.
