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Dishonest Advertising
OFCOM Campaign
Duracell


Chris

This is the transcript of my exchange with OFCOM on a Duracell advertisement complaint. It forms part of an umbrellas article on dishonest advertising which you can find here. This complaint was my first to Ofcom, and so I found a number of issues around doing business with Ofcom.

I submitted this to Ofcom on 19.07.04

Duracell's "fluffy bunnies racing" ad portrays bunnies powered by "ordinary batteries" being our-performed by one powered by Duracell.

FOUR "ordinary bunnies" are out-run by the Duracell bunny, which I feel, gives the clear implication that Duracell batteries are 4+ times better than ordinary batteries.

In fact, they have just over twice the capacity of zinc-carbon batteries, which are - in any case - sold very little these days.

So the ad is misleading in two respects:

1. "Ordinary batteries" are - these days - not Zinc carbon - so the comparison is misleading.

2. The bunnies imply the ratio is 4+ to 1 - whereas it is in fact, just over 2 to 1.

6.8.04

Hello,

I believe your target for responding is two weeks, in which case this one is overdue.
Please update me on progress.

Thanks,
Chris

6.8.04

Dear Mr Wesley,

Thanks for your further e-mail. We actually responded to you about your recent complaints yesterday, and you should receive the letter by tomorrow if it has not already arrived. For your ease of reference please find attached an electronic copy.

For future reference, it would be helpful if you are able to supply a reference number when chasing up complaints, or failing that, a surname or postcode - without this information it's a lengthy task trying to locate a complaint on our database.

Regards

Broadcast Team - Contact Centre

6.8.04

Thanks for this - on the matter of the reference number - I don't know it, because your system does not work well for someone sending multiple complaints as I did.

I received two slips with two reference numbers on the same day, but those slips do not mention anything about which complaint they referred to.

I guess this works well in the vast majority of cases, where a single complaint will be in process at any given time, but it does not work well for me - I believe I have 4 or 5 in process just now.

Perhaps you could look into upgrading, but anyway - I'll examine your response in a separate email.

Regards,
Chris

5.8.04

Duracell

Thank you for contacting us. I’m sorry this advertisement caused you concern.

I should explain we don’t make advertisements or give them prior approval. As the regulator, we can intervene if a commercial provokes widespread offence, causes significant harm, or is materially misleading i.e. if there is a breach of our Advertising Code.

We have checked this commercial, but we do not feel there are sufficient grounds for intervention. There is no obligation for this company to draw comparisons with alkaline batteries and there is no verbal claim as to how many times it will outlast other batteries. We think that in some cases they will outlast other brands two, three or four times and this would have been checked by the BACC, the Broadcast Advertising Clearance Centre.

We have had no competitor complaints about this commercial.

Thank you for taking the time to give us your views. Even when we don’t uphold complaints, it is always useful for us to receive feedback on the output of our licensees.

Yours sincerely

Karola Gajda
Case Officer
Ofcom Contact Centre

6/8/04

Hi, ref: 2246909

Don't worry I'm not planning to make a bloody-minded fight on all of these :-))
But - I'm learning the ropes here, and I'm trying to establish some principles, and I really do feel you're wrong in this case.

I wonder what - if any - options I have. Is there an apeals procedure? Can I argue my case here? If so, then here goes:

1. Duracell do not claim their batteries will outlast ordinary batteries "2, 3 or 4 times". Through their bunny race, they claim more than 4+ times." Ordinary batteries" these days are alkaline batteries, and Duracell does not last 4+ times more than them. So isn't their claim very clearly misleading?

2. I am also concerned that you are only interested in "verbal claims".
Do you accept that advertisers can, and do - make implied claims through non-verbal means? If you do (as I think you must), then - should these claims also be truthful?

3. You say that in some cases there will be other brands which Duracell will outlast 2, 3 or 4 times. Even if this is true, does that justify Duracell's blanket claim?

Thanks,
Chris

I'm afraid that I mislaid Elfed's response, but it was prompt, and the essence of it is included in my response to it, below.

Hi Elfed, my responses to yours are below.

Let me repeat my earlier comment that I don't intend to be a permanent pain.
This first one will set me on the right course, I hope. I respect your position and your time. I don't plan to abuse it.

You say:

(It’s best to reply to the officer who dealt with your case in the first instance as this is likely to be speedierthan the general email address, given the volume of email we receive. However, can I assure you that it is customary for another officer to review the case).

I clicked REPLY on the email which was sent to me, Elfed. Perhaps you could fix your system so that clicking REPLY routes to the person you'd like it to, but I imagine you cannot easily do this, so I will also try to accomodate this problem for you in future correspondence.

I have checked the advertisement , which does carry the text: ‘Lasts longer, much longer, than zinc carbon batteries’.

No doubt, but the thrust of the ad is that Duracell lasts much longer (4+ times longer) than "ordinary batteries". There is a general principle I want to fight for here, and regrettably, it looks like you're fighting on the other side. The principle is that we should dissallow a world where the large print giveth, and the small print taketh away. Or in this case, where the large, coloured moving pictures and sumptuous sound track giveth, whilst the low-contast, fleeting, small, static text taketh away - or covereth arse.

Do you understand my point?

It seems to me that if we were decent honest people, we would not allow this. I'm asking you, Elfed, to not allow it. To stand up for decent, honest adverts. To make things better.

We don’t have any evidence, either in the form of complaints from viewers or from competitors (who are usually quick to challenge any claim which they believe might place them at a disadvantage) that this advertisement is misleading viewers in their purchases.

You seem to be saying that an absense of similar complaints, means that my complaint is invalid. Whilst other similar complaints might justifiably give you a warm glow, their absence is not a good reason to reject a complaint. Is it?

The ‘non-verbal’ claims you mention don’t conflict with the specific claims in the advertisement.

The non-verbal claim is this: DURACELL BATTERIES LAST AT LEAST 4 TIMES LONGER THAN OTHER ALKALINE BATTERIES. THAT claim is untrue.

Alkaline batteries may be more common these days but we think 'ordinary’ is still most likely to be interpreted as zinc-carbon batteries,

So you agree that alkalines may be more common, but you feel "ordinary" means zinc carbon? Eh?! On what basis do you reach that conclusion?

and if there is any doubt the nature of ‘ordinary’ is explicitly cknowledged in the on-screen text.

Yes, see my "large print giveth - small print taketh away" argument earlier.
The advertisers want to manipulate perceptions, and they'll sale close to the wind in order to do it. They're in a cat and mouse fight with you. They'll continue to do what you let them get away with. They want to give the impression that Duracell is 4+ times better than other alkalines, but they can't SAY it - because you'd stomp on them. So they IMPLY it through the visual insiuations of their ads.

You and I both know that the presence of the text does not undo that insinuation for most viewers, and so - if you allow its presense to defeat my complaint, you are leaving the door open to fundamentally dishonest manipulations of this kind in future.

Regards,
Chris

10.8.04

Dear Mr. Wesley,

We're here to consider complaints so we're always happy to double-check things as we don't profess to be infallible. I will check with our Advertising people that our original decision remains valid, but in the meantime I'll try to answer the points you raise:

1. Apologies for the email problem. You should be able to reply directly to the person who replied to you, but you may have been re-routed to the inbox because that's how your original complaint arrived. As I said, the complaints page on the web site tends to be speedier than the general inquiry inbox.

2. We can, and do, uphold misleadingness complaints on the basis of a single complaint if the misleadingness is unambiguous and it is clear that viewers will be misled in their purchases. I have checked the files and we and our predecessor (the ITC) have received only eight complaints of any kind since 1997 (and only three of those queried the long-lasting claims). Also, no competitor complaints and we think this is highly significant, as any brand that could match or exceed Duracell, or feared commercial damage from the advertising, would surely complain. Competitors are quick to complain in other contexts.

3. We can't see why viewers would be likely to interpret 'ordinary' batteries as meaning anything other than zinc-carbon (which on-screen text confirms). You interpret 'ordinary' as likely to mean other alkaline batteries, but that's an interpretation with which both we, and apparently the competitor companies who have most to gain from challenging the claim, disagree.

4. I understand the points you are raising but I'm afraid I still don't feel there are sufficient grounds for concluding that this advertising poses a realistic risk of detriment to the consumer.

Regards,

Elfed Owens

12.8.04

Hi Elfed,

On the word "ordinary", you have agreed that most batteries these days are NOT zinc carbon, yet you contend that most people will interpret "ordinary" to mean zinc carbon. And you support that contention by observing that competitors have not complained, which - in my view - is not a forceful argument for anything.

If I said my product was much brighter than an "ordinary street" lamp, would you assume I meant a gas-lamp? If I said my product was much fasters than an "ordinary car", would you assume it was steam powered?

Of course not.

My dictionary defines "ordinary" to mean "regular, customary, usual.". (Concise EOD, 1990, p836). This clearly supports my case and weakens your.

"Ordinary" batteries these days, are alkaline.
Ordinary batteries, these days, are not zinc carbon.
So Duracell batteries do NOT last 4+ times as long as ordinary batteries.

On the matter of your frequent references to the ass-covering static text, I am very depressed indeed.

By accepting this tactic as legitimate, you have left the flood gates open to a sea of low-life advertisers who want to make their money - not by providing great products and services - but by deception.

You seem content to allow that to happen, and frankly, without wishing any offense to you personally, Elfed, I really wish you were not in the position you are - because you do not seem to be working to make things better, but to keep things the way they are.

Well, we're at the point where you say tom-aye-to and I say -tom-ah-toe, so I'll stop corresponding on this one. (I note, however, that some of my others are now overdue for response, by the way).

I'll post our dialogue on the Let's Fix Britain website (www.letsfixbritain.com) and notify you when the article is completed. I guarantee to correct any factual errors you may point out, and to give you space to say whatever you choose in response to that article.

I'll also invite visitors to that article, to register their opinions, and I'll make those opinions available to you.

Thanks again for your time and patience, Elfed.

Regards,
Chris

Ofcom's Disclaimer:

I removed the following disclaimer from all Ofcom's correspondence above.
I hate disclaimers, and I worry about why organisations adopt them.

Ofcom is the regulator for the UK communications industry, with responsibilities across television, radio, telecommunications and wireless communications services. Ofcom exists to further the interests of citizen-consumers as the communications industries
enter the digital age.

Ofcom has taken over the responsibilities and assumed the powers of the five former regulators it has replaced - the Broadcasting Standards Commission, the Independent Television Commission, Oftel, the Radio Authority and the Radiocommunications Agency.

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed.

If you have received this email in error please notify the originator of the message. This footer also confirms that this email message has been scanned for the presence of computer viruses.

Any views expressed in this message are those of the individual sender, except where the sender specifies and with authority, states them to be the views of Ofcom.

Why is this email confidential? Ofcom is engaged in a public business.

The legal value of these disclaimers is, apparently, dubious, but latterly, I included by own disclaimer on my emails, which I am given to understand, provides me with a good measure of legal protection. Here's my disclaimer:

DISCLAIMER: Mine trumps yours.
I am proud of my conduct and you can do what you will with this dialogue.
I reserve the right to do the same.

I found this dialogue quite frustrating, and I can't fathom their reasoning in some cases. Maybe I'm wrong. I'd value your own views on this, and I'll send them along to Ofcom regardless of who you agree with. SO please consider completing the form below & sending it to us.

Do you think the plot of the ad gives the impression that
Duracell batteries last 4+ times longer than ordinary batteries?
Do you think that Ofcom should consider an absence of complaints from product competitors to contribute to their decision to reject a complaint?
What you you consider is meant by "ordinary battery"?
Do you ads should be allowed to give false or ambiguous impressions via the sound and vision, as long as static text at the bottom of the screen states the truth?
What mark out of 10 would you give Ofcom in their processing of this complaint?
Thinking about TV ads in general, how do you rate their levels of honesty?
My email address is:

What other comments would you like to make?

Thanks for taking time to complete the survey.
Please click SUBMIT to send us your views.

To prevent SPAM, please enter the number 1998 in this box:

And here's what others have said. It needs graphing but I don't have the time:

MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Don't Know
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 1 - appalling
My_score_for_TV_advertising_standards_is = 1 - appalling

MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Alkaline
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 5
My_score_for_TV_advertising_standards_is = 5
MisleadingAd = Yes
Is_Competitor_Silence_Relevant = Yes
What_does_Ordinary_Battery_Mean = Alkaline
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 8
My_score_for_TV_advertising_standards_is = 6
MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Zinc Carbon
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 5
My_score_for_TV_advertising_standards_is = 5

Comments = Ofcom are just like any other organisation, don't rock the boat etc etc. Money talks, they don't want to take on anyone with deep pockets because they don't have the budget. If you want to see what Ofcom are like, look at the fight RSGB is getting into with them over so called 'approved' adapters BT is using to deliver the internet. The devices are non-compliant with EU emc laws, but Ofcom won't act because BT is too big to take on. The cost to BT of replacing the adapters is huge, so they are bound to take on the spineless Ofcom, who don't have the stomach or the money for the fight..
MisleadingAd = No
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Zinc Carbon
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 9
My_score_for_TV_advertising_standards_is = 1 - appalling
MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Alkaline
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = Don't Know
My_score_for_TV_advertising_standards_is = 2
MisleadingAd = No
Is_Competitor_Silence_Relevant = Yes
What_does_Ordinary_Battery_Mean = Zinc Carbon
Is_disclaimer_Text_Legitimate = Undecided
How_well_did_Ofcom_Score_Out_Of_10 = 8
My_score_for_TV_advertising_standards_is = 7
MisleadingAd = No
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Alkaline
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 8
My_score_for_TV_advertising_standards_is = 3
MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Alkaline
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 4
My_score_for_TV_advertising_standards_is = 1 - appalling

MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Don't Know
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 1 - appalling
My_score_for_TV_advertising_standards_is = 1 - appalling

Comments = There are five centres of power; government, banking, media, big business, and religion. They are otherwise known as the "establishment". That is why we have bishops sitting on government benches; why we have a "Bank of England", and why we have national newspapers, radio, and television. That is why you will never hear any kind of condemnation of dishonesty in commerce from government, the high church, or the media; apart from, of course, the odd outright and obvious criminal activity.
That is also why we do have, nor have ever had, anything like true democracy.

MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Zinc Carbon
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 2
My_score_for_TV_advertising_standards_is = 1 - appalling

Email_Address = [provided]

Comments = The regulation of advertising would be a joke, if one didn't take dishonesty seriously. But, it's not a joke, it's a tragedy and a gross waste of money for all concerned.

MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Alkaline
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 1 - appalling
My_score_for_TV_advertising_standards_is = 4

Comments = Why not get every visitor to this site to send a complaint on this subject to the ASA? Ofcom can't then say, "We've received no complaints."

MisleadingAd = Yes
Is_Competitor_Silence_Relevant = Yes
What_does_Ordinary_Battery_Mean = Alkaline
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 1 - appalling
My_score_for_TV_advertising_standards_is = 1 - appalling

MisleadingAd = Yes
Is_Competitor_Silence_Relevant = No
What_does_Ordinary_Battery_Mean = Alkaline
Is_disclaimer_Text_Legitimate = No
How_well_did_Ofcom_Score_Out_Of_10 = 1 - appalling
My_score_for_TV_advertising_standards_is = 2

Comments = Clearly, as it is almost impossible to buy zinc carbon batteries these days, they are NOT "normal batteries"
Often with "the system" they just hope you go away, most large organisations do this, it's not deliberate, it's usually just laziness.

Tonight I sent an online complaint to ASA regarding the current Duracell advert on TV. In it they claim to have tested their battery against 12 other batteries and it lasted longer than any individual one. They end the advert with a graphic showing 12 batteries in a line behind one Duracell and use the phrase "1=12".

That is implying that 1 Duracell would last longer than 12 other batteries.

They are twisting their test results and misleading the viewer into believing one Duracell would last 12 times longer than other batteries. They might claim that is not what they are saying, but I think the phrase 1=12 inclines that.

 

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