ASA Council ignored its own Investigators’ recommendation when ruling on complaint against B&Q

Styropack asked the ASA to investigate its complaint that claims made by B&Q in its ‘Teabag Technology’ plant trays campaign were misleading.

In one video B&Q made claims that polystyrene could not be recycled and in a second, the well-known actress Emilia Fox made the same statement and claimed that polystyrene is devastating to wildlife.

The ASA Investigations Team carried out a detailed and thorough investigation into the claims. It concluded that the advertising did indeed breach CAP Code rule 3.1 (misleading advertising) and recommended that Styropack’s complaints be upheld. The ASA Council did not do so, however.

Richard Lee, Managing Director, Styropack comments: “I am very disappointed that the ASA Council ignored the recommendations of its own Investigations Team.

“When a leading brand with visibility and clout of B&Q makes statements about polystyrene it has a reach and visibility that Styropack – or indeed the entire polystyrene manufacturing sector in the UK – is simply unable to match.

“We decided to take our complaint to the ASA in the hope that we could readdress this imbalance. Interestingly B&Q and the ASA Council both acknowledge that polystyrene can indeed be recycled. However, B&Q argued that its advert was aimed at domestic gardeners and therefore was not misleading.”

The second complaint made by Styropack was that Emilia Fox said that polystyrene is ‘difficult to recycle’ and is ‘devastating to wildlife’. The ASA Investigations Team again recommended that both complaints be upheld, but, again the ASA Council decided against the advice of its own Investigation Team.

“Clearly it is extremely frustrating to discover that large brands seem to have the freedom to make such statements to promote their own products and to hire famous faces to speak on their behalf, and we have such limited recourse. All the more so given that the ASA Council did not follow the recommendations of its own Investigation Team” concludes Richard Lee.

The full text of the ASA Investigation Team report is below.

1. the claim “The old style polystyrene bedding trays … can’t be recycled” in ad (a) misleadingly implied polystyrene could not be effectively recycled;

Assessment
1. Upheld
The ASA understood that the recycling of polystyrene was not currently offered by Local Authorities as part of their waste management services. We also understood, however, that polystyrene was recyclable and that many businesses employed a recycling process.

The ad’s narration talked about the large quantity of polystyrene trays B&Q were accustomed to sell in Spring and went on to say they were ‘difficult’ to dispose of, ending up in landfill, and later “… they can’t be recycled. I hate filling up the dustbin with them … we’re filling up landfill sites with polystyrene that takes thousands of years to degrade. The Easygrow tray is made from recycled plastic bottles and the material can be recycled again and again, completely eliminating waste …”. We acknowledged B&Q’s argument, that the intended message of the ad was that domestic gardeners experienced difficulty in recycling polystyrene. However, we considered that this message was not clear from the language used. The claim “they can’t be recycled” was an absolute one, which was likely to be interpreted by its audience, including domestic gardeners, that, unlike the Easygrow tray, polystyrene trays could not be recycled, not that there might be difficulties should gardeners wish to recycle rather than discard.

2. Upheld
Ad (b) was narrated by Emilia Fox and from her position as ‘a keen gardener’. She explained that she saw her gardening activity as a way of supporting nature and working with the environment and claimed “But the truth is, gardening isn’t always green … people like me have been buying bedding plants in polystyrene trays … polystyrene can’t be recycled easily and takes hundreds and hundreds of years to degrade. Not only does it create a huge amount of waste we can’t get rid of …”.

We understood that it was possible to recycle polystyrene, including the polystyrene trays used by gardeners, and the difficulty the ad spoke about was in relation to the convenience for domestic gardeners in finding and making use of a recycling facility. We considered, however, that the implied message of this ad was that polystyrene itself was difficult to recycle, which was not the case and that this resulted in large amounts on non-degradable waste.

On this point, ad (b) breached CAP Code rule 3.1 (Misleading advertising).

3. Upheld
Ad (b) stated “… it’s also believed to have a devastating effect on wildlife” in relation to polystyrene. B&Q had explained their view that this was a conditional claim and that the effect of plastic debris on wildlife was well-known. While we acknowledged this general point, we considered that evidence demonstrating the belief of a devastating effect of polystyrene on wildlife would need to be held to support this specific claim. In addition, although the claim was expressed conditionally, it was likely to be understood by viewers that the ‘belief’ behind the claim was backed by objective evidence to support it.

The news articles submitted spoke about the large quantities of polystyrene discarded as litter and reported on the potential danger of polystyrene on wildlife as a result, particularly in relation to marine life, because it could be mistaken for food, presenting a choking hazard or an erroneous feeling of ‘fullness’, causing malnutrition or starvation if ingested. While we acknowledged that the reports indicated a belief that large amounts of plastic products thrown away as litter could be problematic, they did not show that the effect of polystyrene on wildlife had been ‘devastating’. In addition, the information submitted referred to discarded plastics, particularly those which reached the sea, whereas the ad referred to polystyrene as ‘waste we can’t get rid of’, having explained that gardeners have purchased enough plants in a three month period to fill 80,000 wheelie bins with polystyrene trays. In the context of the ad’s theme ‘gardening isn’t always green’, the evidence did not show any correlation between polystyrene trays disposed of by gardeners in the UK as part of a responsible waste management pattern and a devastating effect on wildlife.

We concluded that the claim was unsubstantiated and likely to mislead.

On this point, ad (b) breached CAP Code rules 3.1 (Misleading advertising) and 3.7 (Substantiation).