ASA bans BT advert as misleading (not for the first time)

The ASA complaint against BT

Today (27/02/19) the  Advertising Standards Authority (ASA) announced that it has upheld a complaint against BT. The complaint was received from Virgin Media (the irony) regarding a national press advert and claims on the BT website seen 19 May 2018. The ASA listed the below on its website regarding the complaint:

“a. The press ad included the claim “UK’s most powerful Wi-Fi vs. major broadband providers” as a feature of the Infinity broadband package. The claim also appeared as a feature of the Unlimited Infinity package. The ad featured an image of the BT Smarthub.

b. The BT website featured the headline claim “BT Business Smart Hub. The UK’s most powerful business wi-fi signal vs. major broadband providers*”. Further text stated “*Better than all other major UK business broadband providers, giving you the strongest signal furthest from the hub. Tests prove it”.”

BT logo

 

Virgin challenged the claims saying that they were misleading and could not be substantiated.

The ASA response to the BT complaint

The details of the response, assessment and action are detailed  in the ASA Ruling on British Telecommunications plc t/a BT

In short, the ASA found that BT broke rules on  Misleading advertising, Substantiation, Exaggeration and Comparisons with identifiable competitors.

ASA action against BT

The ads must not appear again in their current forms. The ASA has instructed BT “… not to claim that their routers were “the UK’s most powerful” unless they could demonstrate that they could provide a stronger signal than other major providers when subjected to other forms of non-Wi-Fi interference, and unless they could provide recordings of the levels of all types of interference when each router was tested to demonstrate that each router was subjected to consistent levels of interference.”

BT has previous for breaching the ASA code

The ASA has received a number of complaints about BT’s advertising over the years. Most have been upheld resulting in BT not being allowed to show ads in the same format. They referred to a variety of adverts, website, emails, publications and TV. Various issues were raised and investigated, upheld and action was taken against BT 11 times from May 2014.

BT is not alone. Put in any other telecom provider and you will find similar. When I asked the ASA about BT’s track record a spokesperson said that it needed to take a proportional view. “BT produce thousands of ads a year across media in a highly competitive sector. In that context, a handful of upheld rulings points towards an advertiser that, by and large, plays by the rules. It would be different, say, if BT produced 20 ads a year and we found them to have broken the rules on several occasions. As a proportion of the number of ads they produce, which is a prolific amount, the number of issues to crop up is low.”

Does the ASA have any real powers?

The ASA investigates complaints and tells companies that ads cannot appear in the same form again. Is it just a slap on the wrist? The adverts have run so the companies don’t lose anything?

Another issue is the time it takes for the ASA to investigate. So many months have passed by the time the ASA has made its judgement that any consumers who took on a service or bought a product on the claims of an advert have already been stung.

ASA

The ASA says that it bans adverts that break the rules so they can’t appear again. It says that the company receives negative publicity/reputation damage when it  is at the wrong end of an ASA ruling. However, how many people look at ASA rulings on a regular basis? And how many of the investigations reach the media? A spokesperson for the ASA said  “An investigation and having an ad campaign banned costs the company involved time and money in responding to our queries and providing evidence to back up their claims. It can also cost a company money, in some instances a significant amount, if we ban an ad campaign that is planned to have a long run.”

The ASA claims that rulings can affect share prices. They say this on the back of conversations with companies  saying only that the companies would need to provide this evidence.

“The majority of advertisers work with us, are committed to responsible advertising and agree to follow our rulings. There are sanctions in place for those who are unwilling or unable to work with us. These include prohibiting an advertiser media space – we liaise with media space owners who won’t run their ads – removing paid search ads for the company, mandatory pre-vetting of ads and. ultimately referral of non-compliant advertisers to our legal backstop, Trading Standards who can and do have statutory powers. They can issue fines and prosecute offenders. In some instances this can involve advertisers being sentenced to prison.”

So in effect the real financial damage comes when and if Trading Standards gets involved or if the case hits shares which in essence can only happen if the case hits the media. With the cuts to Trading Standards budgets the likelihood of any local branch taking action against a company is remote.

What can consumers do?

Consumers should continue to report any issues they see with advertising to the ASA. Some issues do hit the media. Such as the Virgin Media story in 2018 (and the ASA refused to investigate that one!) and the Amazon story in 2018 where it told Amazon to  ditch ‘guaranteed next-day delivery’ claim which did stop an ongoing advert. many of the complaints investigated come from just one complaint received.

If you took out a service on the basis of a claim though you can try and get out of a contract with no penalty. Use the The Consumer Protection from Unfair Trading Regulations 2008 (amended 2014).

lap top on woman's knees phone in one hand

 

If you have another complaint about your telecom provider see All you need to know about complaining to telecom providers

Further help in complaining

book Logo cartoon cow at a laptop of book cover. How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results!

 

 

For advice, tips, consumer laws, information and template letters GET THE BOOK! How To Complain: The ESSENTIAL Consumer Guide to Getting REFUNDS, Redress and RESULTS!

 

Fake Farms – A bad country smell that won’t go away…

You might remember a story about Tesco “fake farms” from March? Tesco launched a series of new “farm” ranges. It was widely reported that people felt duped into thinking that a) they were real farms where the products were coming from and b) that they were buying British. I went about doing some more research and challenged Tesco CEO Dave Lewis several times on the matter on this issue. Some of these farms were similar sounding to existing farms too. I mean really similar!

Tesco Name  – Woodside Farms    

Woodside Farm (Derbyshire)
Woodside Farm (Bedfordshire)
Woodside Farm (Nottingham b & b)
Woodside Farm (Nottingham)
Woodside Farm (Cork)

Tesco Name  – Willow Farms 
Willows Farm (Skegness)
Willow Farm (Hertfordshire)

Tesco Name  – Boswell Farms
Boswell Farm  (Devon)

Unique
Suntrail Farms
Rosedene Farms
Redmere Farms
Nightingale farms

One even has the same name!

Woodside Farms is in Jersey and you know what? It even sells to supplying the Co-op and Waitrose in Jersey and Guernsey it is also available in SandpiperCI group food stores, including Iceland, in both Jersey and Guernsey. So, not only has Tesco used names similar to those that exist, it has also used the exact name of a farm that actually supplies to three supermarkets. I asked the Tesco CEO to comment on this but bizarrely he as yet has failed to provide any.

Woodside Farm in Cork was keen to let people know that they were nothing to do with supplying Tesco, tweeting, for example;

Fake farms Tesco

People expressed their displeasure with the marketing ploy:

Tesco fake farm tweet

Others showed their displeasure with irony and humour:

Fake farm Tesco post by The Complaining Cow

Farms took to Twitter to show how they feel insulted:

Fake farm tesco post by Helen Dewdney

Matt Simister Commercial Director
On You and Yours on the 6th July 2016 Tesco said that 2/3 of customers have tried the range but this doesn’t mean that they understood that the brand was not necessarily British. On the programme customers spoke of how they felt misled. One person spoke about how she bought some Rosedene strawberries and saw that they were British and deliberately bought Rosedene apples thinking that they would also be British, believing Rosedene to be a British farm. However, the Rosedene apples were grown in South Africa. And what of the other third of Tesco customers? Another spoke of her disappointment at not being able to buy British, particularly when Tesco had clearly chosen British sounding farm names.

Matt Simister, Commercial Director, Fresh Food and Commodities said that most of the produce comes seasonally from the UK but goes overseas when out of season or not grown in the UK. When asked what proportion comes from the UK, he was unable to answer the question.

He also said that sales were really good and have stayed good and didn’t answer Winifred Robinson’s question regarding whether they would make any changes given the feedback for customers, choosing instead to focus on quality that customers can trust…

[Tweet “Tesco CEO challenged in 3 emails/1 interview on CPUT Regs, marketing, due diligence #fakefarms”]

A challenge to the Tesco CEO

The Complaining Cow asks Tesco Dave Lewis about fake farms
I decided to challenge Tesco CEO, Dave Lewis, on this (See Tesco history – this isn’t the first time 🙂  and so wrote to him several times on the issue. I had to return to the matter several times as I didn’t find his replies satisfactory. The points raised were:

1) Believing that the labelling is a breach of Regulation 5 of the Consumer Protection From Unfair Trading Regs (misleading action) which is an offence under Regulation 9. By default it is also a breach of Regulation 3 (professional diligence) which is an offence under Regulation 8.

What matters under Reg 5 is not whether it is factually correct, but it is the overall impression that counts. Misleading practices – through the information the practice contains or its deceptive presentation, it causes, or is likely to cause, the average consumer to take a different transactional decision. A breach of this Act is a £5000 fine and/or imprisonment for each breach. It also causes what’s called a ‘community infringement’ which means Trading Standards can hit a trader with Part 8 of the Enterprise Act (Enforcement Orders) which means that even if a trader gets a hefty fine under CPUTRs then they could also get an Enforcement Order against them and they can go to prison for longer than under a prosecution.

2) Whilst I may want to buy tomatoes all year round, I don’t want to believe that I am buying from a British farm when I am not. It may well say the country of origin but in far bigger, more noticeable letters is the name “Woodside Farms” or one of the other names. One could argue that one only starts to look at country or origin if they doubt the labelling. So there you have it, people trust the British farm-sounding label as a British farm or they already don’t trust Tesco and look to the country of origin! And why is the animal being reared in Holland and slaughtered in Germany anyway?

3) I do not believe that this is Tesco being transparent. It is marketing and whether customers know that or not they don’t like it.

4) What happened to due diligence? Surely, that would have highlighted that there were farms with very similar and in one case exactly the same names?

5) How much does Tesco pay Trading Standards for the advice it provides (could it be possible that Trading Standards won’t prosecute a company which is paying it?)

Dave Lewis response
Well, there were 3 of them (told you I kept going back to him! Well he did tell me a couple of years ago to keep complaining it was the only way Tesco would improve!) But the main points here were:

1) “This all comes back to the wider point that good marketing can polarise opinion. We’ve seen the debate, and understand it, but the most important thing for us is what customers think. That’s why we developed the new brands with customers in mind, and we continue to listen to them now”.

2) “While they told us that they understood that a single farm couldn’t possibly supply Tesco, they did say it was important that we work in partnership with growers and farmers who stick to strict quality standards. We do, and when the market was updated in May, I said that more than 95% of the commentary from customers has been neutral or positive about the action they’ve taken. The country of origin is clearly labelled on all the products and we’re completely transparent about where the products come from.”

[Tweet “”… we’re completely transparent about where the products come from” Tesco CEO Dave Lewis”]

3) “In addition to listening to customers, we completed legal due diligence on the brand names in relation to intellectual property, as you’d expect.”

4) “Thanks also for your comments on our Woodside Farms brand. As with all our seven new brands, this is a brand rather than a business, and this particular brand is focused on providing customers with great quality, affordable pork products. As above, we did due diligence for this brand.”

5) “We named our brands to represent the quality of our fresh food and history of working closely with suppliers, not after existing farms. Hertfordshire Trading Standards – charges on a cost recovery basis for advice given, which is a typical way for them to fund this service.” They don’t believe we are misleading consumers in relation to their purchasing decision on these brands.”

6) “The wider point here is that creating brands in this way is not at all uncommon in food marketing. Some of the UK’s most iconic and popular food brands have been created in a similar way. Customers do completely understand this – they are much more marketing literate than they’re given credit for. My experience of Tesco customers is that they are among the most savvy in Britain – and they do understand that all the products come from farms.”

Update 15/09/16 Then I asked him again in an interview: (see The Complaining Cow interviews Tesco bosses for more details and full interview)

Tesco | Complaining Cow meets Dave Lewis and Matt Davies

[Tweet “”The performance of the farm brands has been fantastic” Dave Lewis Tesco CEO”]

So clearly, Tesco see the whole thing as acceptable marketing despite the public and media reports on the lack of transparency and it being misleading. Is it patronising to customers who do just accept it and/or insulting to those feel they are misled to say that they are “among the most savvy in Britain”? I might well understand that it is from a farm but I still don’t like the way it is misleading thank you very much.

Advertising Standards Authority
Their response was simply “I’m sorry to tell you that despite receiving a few complaints about this issue we are not entitled to deal with complaints of this nature because it relates to material that is not covered by the UK Code of Non-broadcast Advertising Practice, Sales Promotion and Direct Marketing.

We would consider this to constitute the labelling on a product, and as you can see from section II – m of the Code on our website, our remit does not cover labels or packaging.”

National Farmers Union
According to Tesco and other supermarkets using fake farm brands spark complaint from NFU in The Independent 19/07/16  three in five people who said they believed such products were “definitely” or “probably” British admitted that they would feel misled if they were informed that it came from overseas, according to a YouGov survey commissioned by the NFU. In a survey in the Independent readers were asked “Do you mind that Tesco uses fictitious farms in its branding?” 82% said “Yes it’s misleading.“

The NFU has taken its complaints to national Trading Standards. However I have also already done that and the response showed that it was going to do little to address the issue, so it will be interesting to see if the NFU get the same response.

Trading Standards Response
“I think that whilst I can see that there is controversy, the retailer in cases such as this could rely on the label names being brands as opposed to them being illustrative of geographical locations.

These labels they say ‘farm’. The origin of the products is likely to have been a farm. They refer to fictional named farms, and I can see that some assert that this misleads because it gives the impression that the farm sounds British. I think this is the central issue but I think it would be difficult to persuade a judge that these fictional names suggest a clear geographical origin to the purchaser (especially when on the same small label, the country of production is included).

If the label had said Essex Farms or Wiltshire Farms or some other name linked to a geographical location then perhaps it would be worth examining”.

Update 20/12/16 Tesco on track to increase fake farms

So what do you think? Misleading? Think items are British? Now you know many aren’t will you still buy? Do you buy because the quality and value is good but you still don’t like the ethics?

I look forward to hearing your views!

You can contact the UK Tesco CEO or Group CEO here

History with Tesco links to all the posts over the last few years where I have complained, taken them to court, met With Dave Lewis..

For the full interview see The Complaining Cow interviews Dave Lewis & Matt Davies.