Starbucks challenged Costa Coffee’s strident claim and Ofcom sifted the evidence and reached a verdict. But why Ofcom and why did Costa Coffee’s case stew? Stephen Groom reports.
Who: Starbucks and Costa Coffee
When: September 2009
Law stated as at: 30 September 2009
Starbucks complained to Ofcom about Costa Coffee's use of the claim "7 out of 10 coffee lovers prefer Costa coffee", in sponsored competitions featured in breakfast shows on radio stations Kiss 101, Key 103 and Forth One. The claims figured in trailers for the competition and in the competitions themselves over a period of nine days starting 18 March 2009.
The tasting trial which formed the basis of the claim was explained on Costa Coffee's website. The only coffee tested was cappuccino and only cappuccino from Starbucks, Costa Coffee and one other source was tasted.
Starbucks complained that to justify such a broad, unqualified claim, the tests should have covered other coffee products and, given the ambiguity of the wording, other aspects of the experience of drinking a coffee in Costa Coffee and competing coffee outlets.
The tests should also, Starbucks argued, have been conducted across all competing UK outlets including all chains and independent traders, not just Starbucks, Costa Coffee and one other.
Given the Costa Coffee research failed on all these counts, Starbucks argued that the sponsor credits breached the Code.
No prior clearance from the RACC needed
Because the claims in question were made in sponsorship credits on radio, the BCAP Radio Advertising Standards Code applied. However, unlike most radio advertising, because the references complained of were sponsor credits, they did not have to be cleared with the vetting body the Radio Advertising Clearance Centre ("RACC") before being aired.
The Code rules potentially breached were those requiring that
- the credits must clarify any important limitations or qualifications, without which a misleading impression of a product or service might be given;
- all claims must be adequately substantiated…a statement which is literally true but deceptive when taken out of context may be misleading for these purposes; and
- points of comparison are based on fairly selected facts which can be substantiated and do not give the advertiser an unfair artificial advantage over his competitor.
In its defence Bauer, which owned all three radio stations involved, said that when it reviewed the support for the claim, it felt this was robust.
Sample size of 174 coffee lovers
Costa Coffee had commissioned the research using research firm Tangible. The tests were held in three locations with a total sample size of 174.
Although there was insufficient time to include the supporting research information in the credits themselves, Bauer said that this was featured in full detail on the radio stations' websites throughout the campaign. All of these sites were continually promoted on air as the destination to find out more information about promotions featured on the radio stations and in all these circumstances it believed the credits to be compliant with the Code.
In its findings, Ofcom concluded that the taste tests were plainly based on a "subjective and limited" assessment by test subjects of one coffee drink.
In light of this, Ofcom did not believe such a broad claim as "7 out of 10 prefer Costa coffee" could be made without appropriate qualification and explanation and it was not sufficient to rely on further information which was located in websites or other locations away from the credit itself.
Accordingly the Code had been breached in the manner suggested.
Why this matters:
Even though the claim in question did not have to undergo the more rigorous check that would have been involved if the RACC had needed to vet it, it must be assumed, given the undoubted trouble, time and expense involved, that Costa Coffee had confidence in its claim and the research that underpinned it.
This is surprising given the obvious flaws and it must surely have been realised that the availability of qualifying and explanatory information somewhere other than in the advertising message itself was unlikely to wash with the regulator.
Nevertheless, Costa Coffee had nine days of sponsor credits and given the six months it took for Ofcom to reach its verdict and the remarkably limited publicity which the successful Starbucks challenge attracted, perhaps Costa Coffee looked back and concluded that the net result could have been a lot worse.