Consumer surveys and Vodafone’s “The UK’s best…” claim

Can you use consumer surveys to support marketing phrases such as “The UK’s Best…”, when advertising your product or service?

The key takeaway

It is possible to use consumer surveys as the basis for your claims, but you must be very careful around the presentation of those claims. You must also ensure that the basis of the survey itself can support the claim. Here the ASA determined that the subjective nature of the user survey in question meant that it could not be used as substantiation for a comparative claim which included an objective component.

The ad

In the context of the mobile phone industry, January 2021 saw Vodafone present itself as being “The UK’s best Network” in a paid-for internet search ad. Prior to this, in March 2020 on their website and in a press ad, Vodafone claimed they were awarded, “the UK’s best mobile data network” alongside an image of a gold medal with the claim “No. 1 Mobile Network Performance. Nperf. 2019”. The press ad went further to encourage consumers to “Switch to 5G. On the “UK’s best mobile data network”.

The complaint and the response

 Vodafone’s competitor EE challenged whether the claims relating being the “UK’s best…,” were misleading, capable of substantiation and verifiable.

Vodafone said that the claim would usually read “The UK’s Best Network as voted by readers of Trusted Reviews”, but it had appeared as just “The UK’s Best Network” due to a technical error. They had also removed the claim on learning of the complaint. The Trusted Reviews award was made following a poll-based survey where users were asked which network they deemed to be the best. Vodafone received 59.88% of the votes in relation to this specific category. Vodafone went onto the further state that the Trusted Reviews award was based on readers’ subjective overall preference of a network, which they believed was made clear on the “Networks” page of Vodafone’s website. They believed the complete wording of the claim also made it clear to consumers that the claim was based on consumers’ subjective views.

The adjudication

1. Vodafone’s March 2020 claim of being “UK’s best mobile data network” was based on third-party testing data conducted by nPerf. This concerned the ASA who noted that testing participants were “self-selected” from a sample generally and not representative of the UK overall. As consumers were likely to view this reference to nPerf as a technical reference based on robust testing of mobile data networks, this was considered misleading by the ASA. This, coupled with lack of signposted specific information available to consumers regarding the testing methodology, led the ASA concluding the ad unverifiable and therefore in breach of CAP Code 3.35.

2. Vodafone’s January 2021 internet ad claim of being “the UK’s best network” highlighted the perils of trying to rely on subjective user reviews when substantiating comparative claims. Vodafone admitted that they omitted the phrase “as voted by readers of Trusted Reviews” in error. The ASA analysed the user review process itself and found it to be overly subjective for the claim Vodafone had made, not least as the comparative nature of the claim required an objective component. It was unclear to the ASA how subjective preference alone would deliver such data.

Ironically, in the lead up to the ASA ban of Vodafone’s adverts, Three UK (the complainant) had also faced bans for similarly bold statements after a complaint by Vodafone. Digital data providers will continue to face the hurdle of substantiating bold ad claims in the wake of rapid digital developments cutting across all providers.

Why is this important?

The ruling underlines the need for care in using consumer surveys to substantiate claims which require objective substantiation. It is the latest in a string of cases where mobile operators go back and forth with each other to get ads with bold claims pulled down by the ASA. This case was widely publicised and is a timely reminder of the impact of ASA adjudications on brand reputation.

Any practical tips?

Remember that any claims of being “the best” will be considered a claim against the whole market and will require significant objective substantiation. You also need to make it easy for consumers to see the information that verifies comparisons with competitors. If you are seeking to rely on a consumer survey in support of a claim, it’s important to get into the detail of the survey to ensure it is capable of withstanding a level of objective (rather than purely subjective) interrogation. Put another way, check out the basis of the survey itself and ensure that it is robust enough to support the claim you are seeking to make.