In 2004, Shell was told it could not state that performance gains were guaranteed in all cars using Shell Optimax. So what if they said that it ‘can’ make a difference, would that be OK?
Topic: Misleading advertising
Who: Shell Optimax
Where: Ofcom
When: January 2005
What happened:
Before the ASA took over the handling of complaints in respect of TV advertising on 1st November 2004, Ofcom were in receipt of a complaint over a TV ad for Shell Optimax.
The ad claimed "if you are already using Optimax unleaded you'll know the difference it can make, the extra power to respond safely just when you need it.. but then what else would you expect from the only fuel developed with Ferrari".
A viewer believed the ad misleadingly implied that the product worked for all cars when in fact most cars would see very little, if any, performance gain. The complainant also referred to an Advertising Standards Authority adjudication published back in February 2004. This found against Shell Optimax for apparently making similar claims in non-broadcast advertising. At that time, the advertiser had assured the ASA that it would amend future advertising to avoid the implication that the claim applied to all cars.
In its defence, the ad agency pointed out that it had been careful to refer to the difference the product "can" make as opposed to giving any guarantee that it will make such a difference. It was also suggested that because the ad was addressing itself to those already using Shell Optimax, it was avoiding any claim that the product could benefit all cars.
"Can" cuts no ice
For its part, Ofcom did not feel that use of the word "can" made the claim as tentative as was being suggested.
The regulator felt it conveyed far more than the possibility of the product working with all cars and considered that viewers would see it as an absolute claim which was endorsed by the statement "what else would you expect from the only fuel developed with Ferrari?" Also, far from believing Shell had got themselves off the hook by addressing the ad to those already using the product, Ofcom felt that viewers who did not use the product could well understand the message to be suggesting the product could make a difference for them also.
Accordingly, the complaint was upheld on two counts, namely misleading advertising contrary to Code rule 5.1 and wrongly implying a level of performance that which could be achieved in normal use contrary to 5.2.2. Ofcom decreed that the ad could not be shown again in its current form.
Why this matters:
The advertiser's defence to this claim was certainly ingenious, but at the end of the day, there always had to be a question as to whether the use of the word "can" was going to achieve what Shell wanted. In isolation, the word may have done the trick, but it was probably the surrounding copy that did for the advertiser in this case.
