Background
Summary of Council decision:
Five issues were investigated, all of which were Upheld.
Ad description
Three pages on a website, three social network ads, and two sponsored search ads for a sportswear retailer.
a. The website www.zaggora.com featured a number of products at discounted prices. For example, claims for a sports vest stated, "Was: £50.00 Now £20.00". The "Was" price had been crossed out.
b. Further claims on the website stated, "SALE ENDING SOON! LAST CHANCE FOR UP TO 70% OFF SELECTED ITEMS. SEE CLEARANCE".
c. A social network ad stated, "Zaggora hotpants 50% off. Limited Time Only. Buy Now."
d. A sponsored search ad stated, "Sportswear - Zaggora.com ... Loved By Denise Richards & Millie Mackintosh. Burn More With Zaggora!".
e. Another sponsored search ad stated, "Weight Loss Hotpants - Feel The Heat & Burn More Calories".
f. A social network ad stated, "Special HotPants [sic] sale! Slim in style in these HOTPANTS™ that burn calories for you".
g. Another social network ad stated, "Amazing HOTPANTS 50% Off ... Zaggora Hotpants Burn More Calories Sweat More - Burn More Fat. Now 50% Off. Shop Now".
h. The home page of www.zaggora.com. A banner ad stated, "WE HELP YOU ACHIEVE YOUR GOALS. FASTER. 94% OF WOMEN FEEL THEY GET A BETTER WORKOUT WITH ZAGGORA". An ad further down the page stated, "BURN MORE CALORIES".
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1. the "was" price claims in ad (a), because they understood that the products were not generally sold at the crossed-out prices;
2. the claim "UP TO 70% OFF" in ad (b), because they had not been able to find any products with a 70% price reduction;
3. the claim "Limited Time Only" in ad (c), because they understood the offer had been running since December 2013;
4. the claims in ads (d), (e), (f), (g), and (h), that the product could burn calories and/or fat; and
5. the claim "94% OF WOMEN FEEL THEY GET A BETTER WORKOUT WITH ZAGGORA" in ad (h).
Response
Zaggora Ltd said they were unable to provide a breakdown of historical information to substantiate the pricing and savings claims. They said that a range of items had been on clearance for some time as they were end of season stock. They said that they had changed their pricing policy since the ads had appeared.
1. Zaggora said that they ran a standard retail clearance policy where last season's stock was discounted to be cleared, and seasonal promotions were put in place occasionally for a limited time. They provided invoices for three of the products showing one example of each being sold at the "was" price.
2. Zaggora said that a number of products had been sold at 70% off; they provided three examples, and provided receipts showing the products being sold at the reduced prices. One example also included a receipt showing the product being sold at the higher price. In that case, the date the product had been sold at the higher price was 02/10/13, and the date it had been sold at the discounted price was 19/06/14.
3. Zaggora said that they ran a limited time offer on some of their best-selling Hotpants products. For example, their Capri 2.0 product was sold at £30 for a limited time between April and May. They said the current price was £49.
4. Zaggora submitted two studies, testing participants during short exercise sessions, which they believed supported the claims. They said that both studies found an increase in calorie burn when wearing Zaggora products compared to standard exercise clothing as a result of increased heat production and/or retention during exercise.
Zaggora said that in both studies the claims they made related to calorie burn, which they said was not a new claim relating to heat and exercise. They said they had not made claims about how the Hotpants performed during continued or frequent use, nor had they implied any results on the product’s efficacy.
5. Zaggora provided a copy of the results of a survey of 3,946 people, in which the respondents were asked the question "Do you feel like you get better results from your workout by wearing Zaggora products?" They also provided top line results showing that 4,427 respondents had been asked the same survey question. They said the study showed that 94% of the respondents answered “Yes” to the question.
Assessment
1. Upheld
The ASA noted that Zaggora had not been able to provide a breakdown of historical information to support the "was" price claims. In the absence of any such evidence, we concluded that the claims had not been substantiated, and were 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), 3.7 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), 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices), and 3.40 3.40 Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with a recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold. (Price comparisons).
2. Upheld
We noted that Zaggora were not able to provide historical information relating to the prices of the products in the promotion. We had seen one receipt showing a product being sold at the higher price, which had been from October 2013. We considered that consumers would expect the savings claim to be based on the prices at which the products were generally sold, and, because we had not seen historical pricing information, we had not been able to establish whether that had been the case. We concluded that the evidence provided had not been sufficient to substantiate the claim, and 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. (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), 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. and 3.22 3.22 Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by the consumer. (Prices), and 3.40 3.40 Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with a recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold. (Price comparisons).
3. Upheld
We noted that Zaggora were not able to provide historical information relating to the promotion. Because we had not seen evidence to show how long the promotion had been running for, we considered that that claim had not been substantiated, 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) 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).
4. Upheld
We assessed the two studies provided by Zaggora.
The first study included a small sample size of only nine participants, which we considered was unlikely to be sufficient to ensure that the results were statistically significant in this case. The average age of the participants in the first study was 21 years, and their average BMI was within the normal range. We considered that these factors meant the study was not representative of the likely target population for the product.
We noted that neither study had been published and therefore also not peer-reviewed. We noted that the studies contained several methodological flaws which we considered undermined any reported outcomes. For example, there was no explanation of how the participants were randomised, inclusion and exclusion criteria were missing, and the time between participants exercising with the Zaggora product before switching to the control was very short. We considered that they were inadequately controlled.
The results of both studies were based on a small number of short exercise sessions with no follow-up, which meant it was not possible to assess the sustained effect of the product, or to see whether or not any results were maintained. We considered that the claims in the ads such as, "burn more", "Weight Loss Hotpants", "Slim in style", "hotpants that burn calories for you", "burn more fat", and "burn more calories", were likely to be interpreted by consumers as sustained weight loss claims, and would therefore need to be substantiated by evidence showing an effect over time. Because of the issues identified with the studies, and because we had not seen evidence relating to sustained weight loss, we considered that the claims had not been substantiated and were 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), 3.7 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 13.1 13.1 A weight-reduction regime in which the intake of energy is lower than its output is the most common self-treatment for achieving weight reduction. Any claim made for the effectiveness or action of a weight-reduction method or product must be backed, if applicable, by rigorous trials on people; testimonials that are not supported by trials do not constitute substantiation. and 13.4 13.4 Before they make claims for a weight-reduction aid or regimen, marketers must show that weight-reduction is achieved by loss of body fat. Combining a diet with an unproven weight-reduction method does not justify making weight-reduction claims for that method. (Weight control and slimming).
5. Upheld
We noted that Zaggora had provided limited top line data for the survey. They had not provided the full survey methodology, questionnaire and individual responses which meant they could not be scrutinised. One set of results provided showed that there had been 3,946 respondents, the other that there had been 4,427. For those who had used a Zaggora product, the survey allowed respondents only to answer "Yes" or "No" to the question "Do you feel like you get better results from your workout by wearing Zaggora products?" We considered that a limited response option was unlikely to have adequately gauged respondents' wider range of attitudes to the product. Because of those factors, we could not have confidence in the survey or its results. We therefore concluded that the claim had not been substantiated 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) 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).
Action
The ads must not appear again in their current form. We told Zaggora Ltd to ensure that their pricing and savings claims did not mislead in future, and that they held adequate substantiation for weight or fat loss claims, and for survey claims.
CAP Code (Edition 12)
13.1 13.4 3.1 3.17 3.22 3.40 3.7
