If a brand makes an intrinsic product claim, does the CAP Code of Advertising, Sales Promotion and Direct Marketing apply? If the answer is “yes” and the claim is misleading, where does this leave the brand owner? Omar Bucchioni wakes us up to a tricky issue.
Who: Zip Vit Ltd
When: November 2008
Where: Advertising Standards Authority
Law stated as at: 19 November 2008
The Advertising Standards Authority (ASA) has investigated an advertisement for “ZV Snore Solution Spray” http://www.asa.org.uk/asa/adjudications/Public/TF_ADJ_45288.htm.
A brochure for health products featured an ad for ZV Snore Solution Spray. Text underneath an image of the product stated “Sleep in peace with ZV Snore Solution Spray. Newly introduced to the ZipVit product range; this could be the product to save your relationship. Snoring can be brought on by smoking, colds or possibly weight gain and can lead to misery for the person having endure [sic] the noise night after night. Introduced at an unbeatable price of only £9.99 / 50ml, working out at less than 10p per night! Surely a cheaper option than an expensive separation!”
A complainant challenged whether ZipVit could substantiate the implied claim in the advertisement that the product could cure snoring. The advertiser, ZipVit Ltd (ZV) did not provide any substantiation to show that the product cured snoring but said it would amend the advertisement to exclude any reference to the product’s ability to cure snoring.
The ASA welcomed ZipVit’s assurance; however, they went on to consider that the product’s name itself, “ZV Snore Solution Spray” implied that the product could cure snoring and decided that the brand was indeed likely to mislead.
The ASA adjudication panel found that the ZipVit’s ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 50.1 (Health and beauty products and therapies) of the British Code of Advertising, Sales Promotions and Direct Marketing.
The ASA told the advertiser not to feature the product name again in future marketing material, unless that name had been registered as a trademark.
Why this matters:
Although the CAP Code does not govern packaging content as such, paragraph 1.2 of the Code makes it clear that packaging will be caught if it advertises another product, a sales promotion or is visible in a marketing communication. This verdict also makes it clear that the Code will also apply if a brand conveying an implicit product claim is repeated in the body of an advertisement, which of course is highly likely to be the case.
One other interesting aspect of the case is the ASA’s apparent indication to the advertiser that all would be well once the brand in question was a registered trade mark.
Marketinglaw is not aware of any CAP Code provision that exempts from the Code brand names appearing in advertising copy if they are registered trade marks. The Trade Marks Act 1994 also makes it clear that a brand name will be refused registration if it is “of such a nature as to deceive the public” (s. 3 (3) (b)). None of this suggests that an attempt to register “Snore Solutions” offers a way out for the beleaguered advertiser. How about “Possible Snore Solutions”?