Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A website for Purflo baby beds, www.purflo.com, seen on 9 September 2021, included a product page for the ‘Sleep Tight Baby Bed’, Botanical model. Images of the product were shown alongside a tag saying “Safe for overnight sleep”. Under the sub-heading “Key features”, text stated, “Certified safe for unsupervised, overnight sleeping”. On a tab further down the page labelled “Details”, text stated, “The very first baby bed of it’s [sic] kind to be certified as safe for independent, overnight sleep … Tested to all relevant British Safety Standards and passed or exceeded them”.
On another tab, labelled “Safety testing”, text stated, “Is the Sleep Tight Baby Bed safe for overnight sleep? Yes! The Sleep Tight Baby Bed was created using the most up to date and relevant safe sleep guidelines. As with any new Purflo baby product, advice was sought from two independent UKAS accredited test houses to determine the most appropriate testing”.
Further text stated, “The Sleep Tight Baby Bed meets and surpasses the following safety standards;” followed by bullet points which stated, “BSEN 1466 – Tested to relevant aspects of the carrycot standard that enable its safe use overnight including: Rigidity of side walls – PASS due to structured side walls preventing suffocation hazard and overheating … Retention of side walls/ roll test – PASS conclusive that infant will remain safely inside the product and could not roll out” and “Unlike many of the nests and positioners in the market, due to its unique structure, the Purflo Sleep Tight Baby Bed also passes rigidity, retention of side walls and roll tests.”
Issue
Enfant Terrible Design AB, t/a DockATot, a baby pod manufacturer, challenged whether:
1. the claim that the product was “certified safe for unsupervised, overnight sleeping” was misleading and could be substantiated, because they believed that there were no recognised standards for testing baby nest or pod products; and
2. the claim “BSEN 1466 – Tested to relevant aspects of the carrycot standard that enable its safe use overnight” breached the Code, because they believed that standard did not apply to the product.
Response
1. Weybury Hildreth Ltd t/a Purflo, said that they did not consider the Sleep Tight Baby Bed to be a baby nest or pod product. They said that it had been designed as an overnight alternative to an existing Purflo product, the Purflo Breathable Nest, which had been discontinued.
Purflo said that they understood that baby nests/pods were not considered to be safe for overnight use, because their soft, pillow-like structure and soft base could pose a risk of overheating and suffocation to an unattended baby, and their tied ends presented a possible entrapment issue for younger infants.
They said that the Sleep Tight Baby Bed had been specifically designed to address and mitigate the known risks of nests/pods, and that the product had passed a wide range of relevant tests to confirm its suitability for its advertised use. Purflo said their claim that the product was certified safe for overnight sleep could be substantiated by evidence provided by risk assessments and test certificates provided by an independent product testing lab. They provided the results of that testing.
Purflo said that while the Sleep Tight Baby Bed’s shape and aesthetic resembled a sleep pod/nest, it was a new, unique item developed using different materials than those used in traditional pods/nests, and did not present the sleep risks associated with those products. Purflo told us that the Sleep Tight Baby Bed had been designed by a baby product design specialist, who had previously sat on safety standard steering committees. They said that infant safe sleep guidelines and principles were taken into consideration when designing the product.
Purflo believed that general consumer knowledge would not include a familiarity with the nuances of technical product testing and the detail of safety standards, so they had consolidated those standards achieved by the product against the relevant clauses into the phrase “certified safe for overnight sleep”. They said this was evidenced by the test results provided in the technical file.
2. Responding to DockATot’s challenge that safety standard BS EN 1466 did not apply to the Sleep Tight Baby Bed, Purflo told us they did not believe that the ad claimed that BS EN 1466 generally applied to the product. They said that the ad’s wording, that the product had been “tested to relevant aspects of the carrycot standard”, supported that stance, and that the test certificates provided in the technical file contained evidence of those tests.
Purflo said that, because the Sleep Tight Baby Bed was a new product, it – like many products new to the market – sat outside the scope of existing safety standards. They believed, however, that there were still a number of standards that could be used to assess the suitability and safety of the product, and to ensure that it was certified safe. They said that they considered this approach to be normal practice with any new design.
Purflo told us that the two clauses of the BS EN 1466 standard tested used to assess the Sleep Tight Baby Bed’s suitability for overnight sleep were clause 7.1.2.3.2 “Effectiveness of the retaining sides” and clause 7.1.2.1.1 “Rigidity of side walls”. They said that those test methods were selected to ensure the child could not roll out of the bed, and that it did not present a suffocation or overheating risk, which they said was known to be associated with SIDS (sudden infant death syndrome). Purflo said that they had not – and would not in the future – claim that the product met the standard in its entirety, but only the aspects of that standard which they believed were relevant to their product and their claims.
Assessment
1. Upheld
The ASA considered that consumers would understand the claim that the Sleep Tight Baby Bed was “certified safe for unsupervised, overnight sleeping” to mean that the product had met or exceeded relevant safety testing standards that were applicable to its design and use, and that the product had been awarded a specific relevant certificate by a relevant body to prove that.
To support the claim, Purflo relied on testing data, which they provided to us in the form of a technical file containing documents covering risk assessments, product specification, a testing check list, fabric testing, flammability testing, components testing, cot/crib (overnight use) testing, air flow testing, quality assurance documents, product self-certification, supplier declarations, factory assessments, labels/warnings, and packaging/instructions for use. However, the file did not include the award of a specific relevant certificate demonstrating that it had been certified safe, in line with the claim.
Because we considered that the phrase “certified safe” would be understood by consumers to mean that a distinct certificate had been awarded to the product, and because that was not the case, we therefore concluded that the claim 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.
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),
3.7
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
3.50
3.50
Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation.
(Endorsements and testimonials).
2. Upheld
We considered that consumers would understand the claim that the Sleep Tight Baby Bed had been “Tested to relevant aspects of the carrycot standard that enable its safe use overnight” to mean that the product met or exceeded relevant aspects of BS EN standards for the product.
We noted that in the “Safety testing” tab of the webpage, the ad stated that the product met and surpassed certain aspects of existing safety standards. The text outlined, in bullet points, which aspects of multiple individual safety standards Purflo were referencing had been met, and in what way. We considered that, in the absence of a clear qualification, consumers were likely to understand from the ad that the stated safety standard was established as applicable to the product. Text elsewhere stated that the product had been tested to all relevant British Safety Standards and passed or exceeded them, which we considered added to that impression.In relation to BS EN 1466, text stated that the product had been tested to relevant aspects of the carrycot standard, which enabled its use for overnight sleeping. That included meeting requirements for the rigidity of the product’s sidewalls, and the retention of the sidewalls and roll test. While those claims were supported by the information provided by Purflo in the technical file, we considered that they only applied to the aspects of the product which fell into the purview of the standard.
We noted Purflo’s comments that when a new-to-market product sat outside the scope of existing safety standards they considered it to be industry standard practice to test the product to the relevant aspects of existing standards. We sought advice from Office for Product Safety and Standards (OPSS), the regulatory body for product safety and standards in the UK, on this matter. Their view was that it was reasonable for manufacturers to use aspects of British Standards to help them design safe products which complied with the requirements of the General Product Safety Regulations, especially where a product was outside the scope of existing standards. They also said that if full compliance was being claimed with a particular standard, it could be problematic if testing had only been carried out against specific aspects of the standard in question. We considered that it would therefore be material to consumers to know that the product fell outside of the purview of the standard as a whole, due to it being new to the market, and there being no specific relevant standard for the product.
Because consumers were likely to understand that the product had been tested to a safety standard that was established as being relevant to the product, and that was not the case, and because it did not clearly state that the entire standard was not applicable to the product, we concluded that the ad 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.
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),
3.7
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
3.50
3.50
Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation.
(Endorsements and testimonials).
Action
The ad must not appear again in its current form. We told Weybury Hildreth Ltd t/a Purflo, to ensure that their advertising did not imply that their products had achieved specific certification when such a certificate did not exist, or had not been fully met. We also told them to ensure that when using aspects of an existing safety standards, they did not misleadingly give the impression that the product had been tested to a safety standard that was established as being relevant to the product.
