Topic: Comparative
Who: Advertising Standards Authority, Marston & Langinger Ltd, Farrow and Ball Ltd.
Where: the UK
When: 26 June 2013
Law stated as at: 9 July 2013
What happened:
Paint makers Farrow & Ball complained to the Advertising Standards Authority (“ASA”) about two magazine advertisements by its competitor Marston & Langinger Ltd (“M&L”).
The first was headlined “THE PERFECT FINISH” and stated:
“Marston & Langinger, with the help of the world’s leading marine coating experts, have created a paint to protect and enhance its most valuable architectural creations. Exterior Eggshell is a tough self-priming paint with a soft sheen that belies its outstanding durability. Proven on the finest garden rooms in the world, it is now available to buy in a choice of three finishes. Exterior Eggshell; Interior Eggshell and a stunning, similarly durable, super-chalky Interior Matt.”
Text below a product shot stated:
“MARSTON & LANGINGER THE BEST PAINT IN THE WORLD”.
The second ad was headed “DRAWN FROM NATURE” and stated:
“The Marston & Langinger colour palette was created by architectural designers to match, contrast or complement natural stones and flora. The paints are not only beautiful but technically superior. Their genesis was working with the world’s leading marine coating experts for Marston & Langinger to protect and enhance its most valuable garden room creations. Self-priming, extraordinarily durable with impeccable environmental credentials, Marston & Langinger paint is now available to buy in a choice of three finishes: Exterior Eggshell; Interior Eggshell and a stunning, similarly durable, super-chalky Interior Matt”.
Again text below stated:
“MARSTON & LANGINGER THE BEST PAINT IN THE WORLD”.
Farrow & Ball challenged the claim “THE BEST PAINT IN THE WORLD” in both advertisements alleging it was misleading and could not be substantiated.
Marston & Langinger Ltd defends its claim
M&L sought to substantiate its claim. It referred to the following: • the notably tough criteria set down by the Nordic Council of Ministers for the Nordic ecolabel were surpassed by M&L’s paint; • the environmental credentials of the product supported extremely low VOC (volatile organic compound) emissions and odours for the end consumer; • the company has developed an expertise in the industry by having worked as a buyer of paint before converting into a seller of paint and the ads were designed to contain references to the M&L’s collaboration with one of the world’s top marine coating specialists; • lack of smell, superior opacity, flow characteristic and colour strength arguably differentiated the M&L paint from other paints as it was extremely unusual to combine durability, ease and quality of application, pigment strength, surface properties and environment credentials in one product. The paints also withstood knocks and severe blows over the years.
The ASA takes a two-fold approach to the claim
The ASA upheld the complaint in relation to the second, “Drawn from Nature” advertisement only.
Although M&L do not seem from the ASA case report to have argued this in their submissions, the ASA considered that the superlative claim in the first, “The Perfect Finish” advertisement, would be considered by readers to be nothing more than puffery, i.e. the advertisers stated the advertiser’s opinion about its own product. Hence the claim was not capable of objective substantiation and was not misleading.
In contrast, the Drawn from Nature advertisement stated that M&L’s products were “technically superior,” which led the regulator to conclude that in this context, the “Best Paint in the world” strapline was an objective claim.
It was likely to be seen as a comparative claim that M&L’s paint was the most technically advanced on the global market and in the absence of robust comparative evidence the ASA held that the claim had not been substantiated and was misleading.
Hence the advertisement breached the CAP Code (Edition 12) rules 3.1, 3.6 (Misleading advertising), 3.7 (Substantiation) and 3.38 (Other Comparisons).
Why this matters:
The case brings into focus the importance of the fine distinction between “mere puffery” and objective claims: categorisation as one or the other of these may have serious implications for the party involved.
To avoid unwanted consequences, advertisers need to ensure one of two things.
First, to come within “mere puff,” the advertisement must be constructed so as to be construed in such a way as to make it obvious to the average consumer that it contains exaggerations that are unlikely to be taken literally.
Alternatively, in the case of objective claims, advertisers must before publication hold documentary evidence to prove that the claims are capable of objective substantiation.
Christina Mikhaylova, Intern and Stephen Groom
Osborne Clarke
