Who: The Advertising Standards Authority (ASA)
Where: United Kingdom
When: 26 June 2013
Law stated as at: 6 August 2013
An ad for running shoes in a Sweaty Betty catalogue descried how ASICS had been developing sports shoes for over 60 years and that its “dedicated scientific approach” had resulted in “some of the most comfortable and performance enhancing shoes on the market”. A complaint was filed with the Advertising Standards Authority (ASA) that this claim was misleading and could not be substantiated.
How the ad was defended
Lady of Leisure Ltd which trades as Sweaty Betty, prepared the ad in question in collaboration with ASICS UK Ltd (ASICS). ASICS submitted a joint response to the ASA on behalf of both ASICS and Sweaty Betty which explained:
(a) that the purpose of the claim was to communicate that they had created some of the most performance enhancing shoes, not that they were the most performance enhancing shoes in comparison to their competitors;
(b) they intended the words “performance” and “enhancing” in the claim in question to be understood by their common dictionary meaning and they referred to the performance of the athlete or runner, not the shoe; and
(c) the use of the term “performance shoes” was common within the sports industry.
ASICS said they used a dedicated scientific approach to the development of their shoes through their Research Institute of Sports Science opened in 1990 in Japan. ASICS explained that at this institute, scientists, athletes and coaches work together to achieve technological innovations in sports shoes and apparel. The Institute includes a large number of sports testing facilities and ASICS goal was to enable professional and recreational athletes to perform better. ASICS provided the ASA with examples of the kinds of comparative testing and research carried out at the institute; a list of the various awards their shoes had been given by a popular running magazine; and third-party reviews of their shoes from running specialist stores and websites (which they argued underlined that ASICS shoes were some of the most comfortable and performance enhancing on the market).
The ASA’s view
The ASA considered the claim would be understood by the average consumer to mean that ASICS used a scientific approach when developing their shoes and that the reference to “performance enhancing” within the claim would be seen either as puffery or as a relatively mild claim that some of their shoes could enhance performance. The ASA believed that in the general context of the ad as a whole, consumers would understand the reference in the claim to “performance” to refer to a variety of factors including running style, time achieved, flexibility, support and general feel. The ASA also felt consumers would understand that differences in anatomy and running style meant that different shoes would suit different people in terms of performance benefit.
While the complainant believed the claim implied there would be a significant performance benefit in choosing an ASICS shoe over others in the market or running barefoot, the ASA did not agree. It did not consider the claim implied ASICS’ shoes were being compared to barefoot running because it specifically referred to shoes “on the market” and was made in the context of an ad for running shoes.
The evidence supplied showed that a number of ASICS’ shoes had been judged as the best shoes out of a selection of running shoes by a leading running magazine and some of the reviews submitted to the ASA in response to the complaint specifically mentioned the performance of the shoes. The ASA were therefore happy that this together with evidence of ASICS’ scientific approach to the design of its products proved that the claim had been substantiated and was not misleading.
Why this matters:
This case providers advertisers and agencies with a little more insight into how the ASA will interpret a claim that could be seen to sit on the fence between puffery and an objective claim. Generally speaking, if a claim being made is an expression of opinion, because the claim is a subjective one, the ASA will not expect to see evidence to support it. However, if the claim could be interpretated to be objective then substantiation will be required and if the expressed opinion does not seem to be puffery and instead patently defies reality, CAP guidance warns advertisers the ASA could then view it as a misleading claim.
In 2002, the ASA upheld a complaint against the claim “Britain’s most informed, independent health expert” (Holford & Associates, 26 March 2003). The advertisers believed they had merely expressed their opinion but the ASA thought the claim would be seen as an objective one, capable of influencing consumers to place their trust in the advertisers and the ASA was not satisfied that the advertisers had demonstrated the truth of their claim. CAP’s advice is that if an advertiser cannot substantiate their claims, they should not make them – so be careful to craft claims in such a way that makes it clear whether they are intended to be an opinion or puffery, or more of a comparison as the evidence you will be required to provide will rely on how that claim is interpreted.