Dyson, ever vigilant to bring its competitors to book over their ads, challenged whether a claim by Vax that its Air Cylinder multi cyclonic cleaner had “outstanding suction power” was misleading. How do you substantiate “outstanding”? Omar Bucchioni reports on the Advertising Standards Authority investigation and verdict.
Topic: Comparative
Who: Advertising Standards Authority (ASA) and Vax Ltd
When: March 2012
Where: UK
Law stated as at: 26 April 2012
What happened:
The Advertising Standards Authority “ASA” has recently investigated a television ad for the Vax Air Cylinder multicyclonic vacuum cleaner.
The voice-over stated “Just because you’re a small one, it doesn’t stop you doing what the big ones do. This is the remarkable Vax air cylinder. It’s light, compact, with outstanding suction power and 60% more capacity than the average multicyclonic cylinder.“
On-screen text, which stated “Average across top 10 selling multicyclonic cylinder vacuums April ’11. Vax.co.uk for details”, was shown whilst the voice-over referenced suction power and capacity. The voice-over continued, “The Vax air range. It just goes to show no matter how small you are, performance is everything.“
Dyson Ltd challenged the claim “outstanding suction power” because they considered that consumers would understand the word “outstanding” to mean that the Air Cylinder had the best suction power compared to the top ten, or at least came very near the top of the top ten, whereas the test results carried out by Dyson showed that the Air Cylinder had the sixth highest suction power compared to the top ten.
The ASA investigated whether there had been a breach of BCAP Code rules 3.1, 3.2, 3.5 (Misleading advertising), 3.9 (Substantiation), 3.33 and 3.35 (Comparisons with Identifiable Competitors).
What Vax Ltd to say
Vax Ltd (www.vax.co.uk) explained that their claim was based on a comparison between the suction power of the Air Cylinder and the average suction power across the top ten selling multicyclonic cylinder vacuum cleaners in April 2011 (the ‘top ten’) as identified from the GfK Hitlist for April 2011, the definitive body monitoring sales volumes for the floor-care industry. (The top ten contained one Vax and nine Dyson vacuum cleaners).
Vax said that according to independent tests carried out on three samples of the Air Cylinder, to the International Electrotechnical Commission (IEC) Standard 60312, the vacuum had an average suction power of 314 air watts; a copy of those test results was provided. They said they had compared that average with the suction power figures for the top ten, as detailed on the Dyson and Vax websites. They provided a comparison table with that information.
Vax said the comparison showed that the Air Cylinder had the second highest suction power when compared to the top ten.
They said the only issue was, therefore, whether it was wrong to describe the Air Cylinder as “outstanding” when, amongst the top ten, it had the second highest suction power. They said they did not think this was materially misleading. The word “outstanding” did not mean “highest”, “best” or “unrivalled”; it meant “very good” or “extremely good”. They said consumers would understand the claim to mean that the Air Cylinder had very good suction power when compared to other multicyclonic vacuum cleaners, not that it had the highest suction power.
Vax added that the on-screen text “Average across top 10 selling multicyclonic cylinder vacuums April ’11” made clear that the claim “outstanding” was specifically linked to the average suction power across the top ten. They said their comparison table showed the Air Cylinder’s suction power was well above that average.
What Clearcast had to say
Clearcast said that all the technical data submitted by Vax was checked and approved by their relevant consultant. Clearcast confirmed that the word “outstanding” does not constitute a superiority claim, rather, it implies “of the best” and this was a claim that was substantiated by the data provided by Vax.
What the ASA had to say
The ASA considered consumers would understand the claim “outstanding suction power”, in context with the on-screen text, to mean that the Air Cylinder’s suction power was higher than the average suction power of the top ten. They considered that, if the evidence demonstrated that the Air Cylinder’s suction power was higher than the average across the top ten, the claim would not be misleading to consumers.
The ASA considered the data provided to us by Vax and by Dyson. Both sets of data were the result of tests which were carried out in accordance with the IEC Standard 60312, as required by the CAP Help Note on ‘Vacuum Cleaner Marketing’.
According to Vax’s test results for the vacuum cleaners, the average suction power across the top ten was 235 air watts, and the suction power for the Air Cylinder was 314 air watts (i.e. the Air Cylinder’s suction power was higher than the average across the top ten).
According to Dyson’s test results for the vacuum cleaners, the average suction power across the top ten was also 235 air watts, but that the suction power for the Air Cylinder was only 251 air watts.
However, even the Dyson’s test results still placed the Air Cylinder’s suction power higher than the average across the top ten.
Therefore, regardless of which set of figures were used, the Air Cylinder had a higher suction power than the average and the claim “outstanding suction power” was not misleading.
What competitors wishing to make a complaint should do
From 1 December 2011, competitors wishing to submit a complaint to the ASA are required to provide evidence that they have tried to resolve their complaints with their competitor. The ASA sets out this procedure as follows:
– a competitor who wishes to make a complaint should raise their concerns with the advertiser, ideally by registered post, or by another means of communication which will guarantee swift receipt by the advertiser. The complaint must provide an appropriate degree of detail in relation to the claim and medium in which it appeared, together with the factual basis for the complaint;
– the complaint should, ordinarily, be signed or authorised by a suitably authorised senior officer of the competitor complainant (e.g. CEO, Legal, Marketing or Regulatory Director), who takes responsibility for the accuracy of its content, and should be addressed to a senior officer or other appropriate contact of the advertiser;
– if the complaint is about an on-line marketing communication, the competitor who complains should obtain a screen shot of the page or pages that relate to the complaint or otherwise secure a cached copy of the website;
– the competitor complainant should allow five working days for a substantive response. If, at the end of this period, the advertiser has not opened a substantive dialogue or the parties cannot reach an agreement, the complainant may then submit a complaint to us;
– when submitting the complaint to the ASA, a copy of the registered letter setting out the concerns should be submitted, with a copy of the complete response (if any) from the advertiser.
The ASA might however allow a competitor to bypass this procedure if they believe the complainant is raising a potentially serious breach of the Advertising Code, or if there are other good reasons to believe that inter-party resolution of the complaint is not appropriate.
Why this matters:
Concerning the wording used, it is important to note that the word “outstanding” does not mean “highest”, “best” or “unrivalled”; but it means “very good” or “extremely good”.
On a more general note, this case shows that a party making a complaint must provide the ASA with enough evidence with an appropriate degree of detail to pursue a complaint. Both parties have carried out accurate tests to verify the accuracy of their positions which was also initially checked by Clearcast.
On this specific case, there were two ways of looking at this issue:
a) Dyson’s – looking at 10 different products where (according to their tests) the Vax’s product had the sixth highest suction power compared to the top ten; and
b) ASA’s – looking at the average suction power across the top ten products (i.e. 235 air watts).
The ASA decided to use its way of applying Dyson’s data, which still placed the Air Cylinder’s suction power higher than the average across the top ten. This result was reflected by the combination of both the claim and the on-screen text which made the overall ad compliant with the Code.
More information can be found here.
