ASA Ruling on British Telecommunications plc t/a BT – prominence of qualifications to headline claims
What constitutes a sufficiently prominent qualification of a comparative advertising claim?
In July and August 2016, BT ran four ads for the BT Smart Hub:
a TV advert (and identical YouTube ad) featured Ryan Reynolds stating: “With the UK’s most powerful Wi-Fi signal, it can reach some serious distance”. On-screen text displayed the phrase “UK’s most powerful Wi-Fi signal versus major broadband providers”. The ad then depicted Reynolds taking off in a helicopter, stating he still had Wi-Fi at 150 meters and 200 meters
the BT website featured text including “the UK’s most powerful Wi-Fi signal” and “better Wi-Fi coverage…faster Wi-Fi connections in more rooms than the latest hubs from other major UK broadband providers”
a radio advert stating: “the UK’s most powerful Wi-Fi signal…could reach the length of at least 12 London buses”.
Predictably, many of the major ISPs (including Virgin Media, Sky and TalkTalk) challenged the claims that the BT Smart Hub:
has the “UK’s most powerful Wi-Fi signal”
“gives you better Wi-Fi coverage”
can reach distances of up to 200 metres or 12 London buses (i.e. 180 meters).
BT rebutted the first and second complaints by detailing the robust testing to which the Hub had been subjected before any advertising claims were made. In order to ensure that their evidence was obtained in a context representative of general consumer use, BT's testing took into account the relevance of testing network speeds, frequencies and devices, as well as the requirement to test in real homes as well as test homes. The claims were intended to relate only to the capabilities of the router, rather than overall broadband speed.
Further, the claim of being the “UK’s most powerful Wi-Fi signal” was qualified in on-screen text and in the body of the website as being compared against major broadband providers. BT believed that the prominence of the qualification was sufficient and would not mislead.
In relation to the third complaint, BT submitted a test report to demonstrate that the Hub could reach the distances claimed when travelling through one wall and connecting to a tablet. The company noted that the helicopter and the buses were intended to illustrate the distances in a humorous manner, rather than being literal descriptions.
The ASA upheld the first and second complaints; the third was not upheld.
It was acknowledged that the evidence provided by BT demonstrated that the Hub’s signal reached a greater distance than routers from other major broadband providers. That said, consumers would understand the “UK's most powerful Wi-Fi signal” to be a superiority claim. Whilst “gives you better Wi-Fi coverage” was seen as general in isolation, the combination of the two headline claims would be understood as whole-of-market comparisons rather than a comparison against major providers. The on-screen and webpage qualifications were not sufficiently prominent to make this clear to consumers. The overall effect was therefore misleading.
As for third complaint, the ASA concluded that whilst consumers would understand that the router could transmit a signal over a distance of 200 meters, it was unlikely that consumers would need the router to transmit such a far-reaching signal. As such, the adverts were likely to be understood simply as illustrating that the router could transmit a signal over a long distance, and it would be sufficient for BT to demonstrate that this was the case.
The ASA decided that the four adverts could not appear in their current forms.
Why is this important?
Interestingly, the main reason that the complaint seems to have been partially upheld is because the “versus major UK broadband providers” wasn't prominent enough (rather than BT not being able to substantiate the claims through testing). BT had jumped through all the hoops to ensure their statements were accurate, they fell at the final hurdle – the wording of the claims!
Conversely, it appears that claims overtly designed to be illustrative and fantastical in nature will be judged more benignly by the ASA, so far as the requisite test data can be produced to substantiate the core message as understood by the consumer.
Any practical tips?
When drafting a qualifying statement, ensure that it is clear and unambiguous so as to ensure it adequately disclaims the headline claim. In addition, ensure that the statement is in a prominent place for the consumer to view and digest.
For ISPs and router manufacturers specifically, the takeaway is that the ASA has accepted that claims about Wi-Fi signal strength and reach, where used appropriately, can be taken by consumers to mean just the performance of router (rather than a general claim about Wi-Fi performance which would be more difficult to substantiate). When making a claim about the performance of the router only, broadband speeds do not need to be taken into account.One final point to note is that the adjudication makes clear that there is now a requirement to test in real homes as well as test homes. The ASA has confirmed that there is a need to demonstrate that evidence is obtained in a context representative of general consumer use.