Four recent Advertising Standards Authority verdicts all castigated comparative claims. But whatever happened to ‘mere puff’?
Topic: Comparative Advertising
Who: The Advertising Standards Authority and Argos, Excel Recruitment, Travelodge and Medacs Healthcare Services
When: April 2002
Recent “complaint upheld" findings by the ASA against four advertisers making superlative claims in their advertising focus the mind on the dos and don'ts of compliantly making such claims. Travelodge and Medacs Healthcare both made "Number one in the UK" claims. Travelodge's was "The number one choice for great value accommodation in the UK" whilst Medacs claimed, in the context of pharmacist and pharmacy technician recruitment that "We are still number one in the UK. We lead – others follow".
In both cases the ASA's view was that to substantiate the "Number one" claim the advertiser had to prove that it had the largest share of the relevant market in the UK. In the Travelodge case, this meant the production of evidence that more people currently used their hotels than any others. So evidence of "price leadership" or brand recall in the sector was not sufficient to support the claim and the complaint was upheld.
Medacs took a different tack by providing evidence that they had been the first business to set up operations in this sector in the UK in 1954. They produced no evidence, however, that they had the biggest market share, so the ASA again felt constrained to uphold the complaint.
In their advertising Excel Recruitment were slightly less assertive. They merely used the phrase "The search and selection specialist". The complaint was that this phrase implied that Excel were either the best or the only search and selection specialists and that since in the view of the complainant this was untrue, the advertisement breached the code. Excel disputed that the use of the word "the" implied that they were the one and only specialist in this area. They argued that the use of the phrase was "mere puff" which would not be taken literally and therefore did not require substantiating evidence. The ASA took a different view and considered that by emphasising the word "The," the advertisers had implied that they were superior to all other recruitment agencies. Since they had not produced evidence substantiating such meaning, the complaint had to be upheld.
In our final example, Argos claimed "We monitor what's going on and lower prices where-ever we need to, making sure that you get the brightest prices every time you visit Argos". The complainant to the ASA argued that this would be interpreted to mean that Argos offered the lowest prices for all products in its catalogue when this was not true. Argos referred to uses of the term "brighter" in their catalogue such as "brighter shopping" and asserted that in context "brightest" was mere puffery and not intended to relate to specific products. The ASA took a different view and held that in context, following the reference to the lowering of prices, the implication was that Argos had the lowest prices when it came to all products in their catalogue. Since this was not true the advertisement was misleading and the complaint had to be upheld.
Why this matters:
The ASA decisions in the "Number one" cases are not all together surprising, but the other decisions are more questionable. The suspicion is that unlike the ASA, any court of law adjudicating on the meaning of the claims in question would be more inclined to take a lenient view and lean towards a "mere puffery" line. In the Argos case, "lowering prices wherever we need to" does not come across to us as being a claim to offer the cheapest prices. In the Excel case the ASA appears to be taking an over-restrictive approach by demanding substantiation for a claim by an advertiser to be superior to its competitors. Since this is the aim of most advertising in the UK today, taken to its logical conclusion, this would mean that no UK advertising could be published without in advance compiling evidence supporting the advertiser's superiority over all competitors. Whatever happened to freedom of commercial speech?