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.
I believe your target for responding is two weeks, in which case
this one is overdue.
Please update me on progress.
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,
surname or postcode - without this information it's a lengthy task
trying to locate a complaint on our database.
Broadcast Team - Contact Centre
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
Perhaps you could look into upgrading, but anyway - I'll examine
your response in a separate email.
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.
Ofcom Contact Centre
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
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?
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
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.
(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
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
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
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
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.
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.
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
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
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.
I removed the following disclaimer from all Ofcom's correspondence
I hate disclaimers, and I worry about why organisations adopt them.
Ofcom is the regulator for the UK communications industry,
responsibilities across television, radio, telecommunications and
wireless communications services. Ofcom exists to further
interests of citizen-consumers as the communications industries
enter the digital age.
Ofcom has taken over the responsibilities and assumed the
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
they are addressed.
If you have received this email in error please notify the
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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
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
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
completing the form below & sending it to us.
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