Homebase thought it got an all clear from Trading Standards for an unsubstantiated “best service” claim in its kitchen installation ads, but did the Advertising Standards Authority take the same view when the matter came before them following a competitor complaint? George Pearse reports.
Topic: Comparative
Who: Homebase Ltd and the Advertising Standards Authority
Where: London
When: November 2011
Law stated as at: 28 November 2011
What happened:
In February 2011, Homebase Ltd ("Homebase") published a brochure promoting its kitchen services. On the front cover was the claim "UK's best installation service". Within the brochure. Homebase repeated that it offered "the UK's best kitchen installation" and insisted that "nobody does it better". The marketing material also included a number of other claims including:
"… our award winning installation team have received the highest accolades in the industry"
"We are proud to have more awards and accreditations than any other kitchen retailer in the UK";
B&Q complained to the Advertising Standards Authority ("ASA"), challenging various of the claims, including the three above.
It was alleged that the claims were all misleading and incapable of being substantiated.
Homebase was able to defend successfully two of the claims brought against them, but the going was harder on the three above.
"UK's best installation service"
Homebase said they did not believe this was an objective claim which was capable of substantiation. The retailer sought to support this by arguing "that a customer was likely to purchase a kitchen only once every 10–1 5 years and from a single retailer, in comparison with services which customers would be engaged in on a more regular basis, such as car maintenance, where they could compare the service provided by different suppliers in a more objective way."
However, if the ASA felt otherwise, Homebase still felt it had adequate support for the claim.
The retailer believed the claim would be understood as comparing Homebase with other providers who offered instillation of kitchens they also supplied.
On this basis they provided a table listing and comparing the number of awards and accreditations held by Homebase and the four companies whom they believed to be their main UK competitors. The results of two recent monthly customer satisfaction surveys were also supplied.
Homebase also said that in discussions with its Primary Authority Trading Standards Service covering all the points of the investigation, the retailer had been advised that none of the issues warranted formal investigation under law.
In response, the ASA noted from evidence of the discussions with Trading Standards that the latter did indeed indicate "that the term "best" was likely to suggest a subjective claim, not capable of substantiation and had noted that Homebase had agreed to avoid the term in future."
The author has italicised these last words as they are to say the least counter-intuitive given that Trading Standards had apparently green-lighted the use of "best". Be that as it may, however, the ASA commented that Trading Standards were advising on the relevant law rather than the CAP Code. The ASA added that the "best" claim appeared in the context that Homebase provided "[the] UK's best installation service." (implying that Trading Standards were advising generally on the use of "best" rather than its use in any particular context). Because of that context, the ASA considered the claim was capable of substantiation rather than being simply advertising puffery.
Turning to the substantiation provided, the ASA disagreed that the claim would only be understood to refer to other suppliers who installed and supplied kitchens. Because of this the comparative data was insufficient and should have covered all UK kitchen installers, regardless of whether they installed their own or others' kitchens.
In the circumstances the complaint in respect of this claim was upheld.
"… our award winning installation team have received the highest accolades in the industry …";
Homebase listed the accolades that they had received for their services in their brochure and said that they were unaware of any accolades that represented an improvement on the award offered under the FIRA Gold Installation Certification Scheme.
They were not able, however, to show that the FIRA award represented the "highest" recognition that the industry could offer.
Largely because of this, the complaint in respect of this claim was also upheld.
"We are proud to have more awards and accreditations than any other kitchen retailer in the UK";
Homebase attempted to defend this branch of the complaint by supplying a comparison chart with four of their competitors. They supplied copies of various trade-body memberships and evidence that their gas engineers were all industry compliant.
The ASA was concerned, however, about the use of "than any other kitchen retailer…" They believed that this implied a comparison with each and every kitchen supplier in the country. In order to substantiate such a claim therefore, Homebase would have to supply materials that showed they had received the most "awards and accreditations of all kitchen retailers in the UK."
Again, therefore, the complaint here was upheld.
Why this matters:
This decision makes it clear that although the use of "best" may in some contexts be regarded by the ASA and apparently Trading Standards as subjective and not requiring substantiation, it is more likely than not that it will be regarded as an objective, superlative claim which will need full supporting evidence to avoid breaching the CAP Code and potentially the Consumer Protection from Unfair Trading Regulations. The same will apply to any other objectively comparative claim.
