Background
Summary of Council decision:
Five issues were investigated, of which four were Upheld and one was Not upheld.
Ad description
A leaflet and a regional press ad for TNT Post UK:
a. The leaflet showed a photograph of a man in TNT uniform. Text stated "What does my Postie Look like? Like this - in a smart uniform which our Posties wear at all times on duty. Like Royal Mail, all are CRB checked and fully trained in how to keep mail safe and secure. How can I be sure my mail will get to me? We operate under exactly the same rules and regs as Royal Mail - authorised by the Government to carry mail and watched over by OFCOM. Do you deliver every day? No - every other day. What should I do with post for someone who's no longer living here? Just write 'GONE AWAY' on the envelope and drop it into a Royal Mail postbox - they'll hand it back to us to return to sender or forward on to a new address. I'm interested in becoming a Postie - any chance? [illegible] we've already taken on over 1000 Posties in the Manchester area, we've still postroom [illegible] visit our website [website address] to find out more. If I have a query or complaint, what should I do? You can talk to us on the phone on 0845 XXX XXXX or email us at [email address].
b. The regional press ad was headed "Changing the face of mail in Manchester". Text stated "Over 1000 new jobs created locally. Your mail tracked all the way to the letterbox. Every item delivered at a competitive price - not just within Manchester, but all over the UK. End-to-end delivery of business mail by TNT Post starts this week in Manchester. If your organisation wants a change for the better, call 0161 XXX XXXX or email [email address]”.
Issue
The Royal Mail Group challenged whether:
1. the claim in ad (a) "We operate under exactly the same rules and regs as Royal Mail - authorised by the Government to carry mail and watched over by OFCOM" was misleading and could be substantiated, because TNT was not required to deliver to every address in the UK on a next-day basis in the way Royal Mail was; and
2. the references in ad (a) to "Royal Mail" were misleading, because they suggested a link between TNT Post and Royal Mail.
Royal Mail also challenged whether the claims in ad (b) were misleading and could be substantiated:
3. "Every item delivered at a competitive price - not just within Manchester, but all over the UK" because they believed it suggested TNT delivered mail all over the UK themselves; and
4. "If your organisation wants a change for the better ..." because they believed it suggested that the service provided by TNT was better than the service provided by Royal Mail.
5. Royal Mail also challenged whether ad (b) was misleading because it did not set out the basis of the comparison listed in 4 above and how it could be verified.
Response
1. TNT said the leaflet was sent to addresses in the area in which they were to deliver. They said the answer to the question "How can I be sure my mail will get to me?" was intended to provide reassurance about security of mail, not about frequency of delivery, which was dealt with in the answer to the subsequent question.
2. TNT said it was inevitable that references would need to be made to Royal Mail in order to explain a similarity, such as the checks that both companies made as part of their recruitment process, or an operational process. They believed the references were not misleading, but that they provided clarity. They pointed out that the leaflet showed a photograph of a member of TNT delivery staff wearing the TNT uniform, which they believed would help readers understand the distinction between TNT and Royal Mail.
3. TNT said they delivered mail themselves in Manchester and several parts of London (they supplied a list) and that, where they did not have their own network, they subcontracted Royal Mail to deliver, thus enabling them to provide a service across the UK.
4. & 5. TNT said the claim regarding a change "for the better" was substantiated by service capability and the social benefits they believed the service would bring to Manchester. They did not believe the claim suggested TNT's prices were cheaper, but said the claim reflected the need for TNT's prices to make it worthwhile for customers to use their service. They pointed out that the ad began with a reference to job creation, which they believed set the context for the claims. They said TNT delivery staff were able to scan each letter before delivering it through a letter box; that their end-to-end delivery service provided businesses with a choice and that the website address given in the ad provided readers with more detailed information about pricing and their scanning technology. They said Royal Mail's MailMark service was not provided as standard on all the letters they delivered and, when it was applied, it tracked the mail up to the point where it was allocated to a delivery round. It provided information about when delivery was predicted, but did not provide tracking to the letter box.
Assessment
1. Upheld
The claim appeared as a response to the question "How can I be sure my mail will get to me?" in a list of other questions and answers to and from TNT, which included "Do you deliver every day? - No - every other day". Although that explained that TNT did not deliver every day, the ASA nevertheless considered that the investigated claim, which was worded generally, suggested that TNT were subject to the same service levels as Royal Mail in all aspects of their service, including the obligation to deliver to every UK address every day, which was not the case. Because of that, we considered the claim was misleading and concluded that it was in breach of the Code.
On this point the claim breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
2. Not upheld
We considered it was likely, in the context of an ad that compared the services provided by one new and one established provider, that TNT would want to refer to Royal Mail by name, and that this could be done without misleading readers. Two references to Royal Mail appeared in the context of TNT's statements that their staff were CRB checked "like Royal Mail" and that TNT operated under "the same rules and regulations as Royal Mail". A third reference advised that mail received for someone who was no longer at that address should be dropped "into a Royal Mail postbox". The ad was branded clearly with TNT's logo and colour scheme, which were very different in appearance from Royal Mail's. We considered that the first two references to Royal Mail were likely to be understood as comparisons with Royal Mail and that the third reference was likely to be understood as a factual instruction. Notwithstanding the concerns about the claim expressed by us in point 1 above, we considered the references, in the context of an ad that was clearly branded TNT, did not mislead by suggesting a link between TNT and Royal Mail, and concluded that the ad was not in breach of the Code.
On this point we investigated ad (a) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising), but did not find it in breach.
3. Upheld
We understood that TNT delivered directly ("end-to-end") in Manchester and a number of London boroughs and that in all other areas they subcontracted to Royal Mail. We accepted that it was true that customers made a single payment to TNT for complete delivery of an item, and we considered that the main focus of the ad was the service TNT was to provide in Manchester, given the references to the city throughout the ad, including in the headline. We understood Royal Mail was the only other end-to-end delivery service in Manchester and we considered that, in an ad that promoted TNT's end-to-end delivery, the reference to mail being "delivered ... all over the UK" was misleading in the absence of qualifying information that explained that delivery to most areas in the UK could not be carried out by TNT themselves.
On this point the claim breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration).
4. Upheld
We considered the claim "change for the better" in the context of the ad as a whole, would be understood by businesses which currently used Royal Mail for their postal services in Manchester to mean that they should contact TNT using the telephone number or email address provided to find out more about the benefits of their services. We were satisfied that the information TNT had supplied showed they had provided 1,000 jobs in Manchester and that mail was tracked to the recipient's letter box. However, one of the criteria related to competitive pricing compared with Royal Mail, and TNT had supplied no substantiation for that. Because TNT had not supplied substantiation for all the elements that made up the claim, we concluded that it was misleading.
On this point the claim breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
and
3.34
3.34
They must compare products meeting the same need or intended for the same purpose.
(Comparisons with identifiable competitors).
5. Upheld
The claim "If your organisation wants a change for the better, call ..." followed statements about jobs being created locally; mail being tracked to the letterbox; competitive pricing and end-to-end business delivery by TNT starting in Manchester that week, which we considered set out the points of comparison. The points of comparison were not verifiable by information contained in the ad, but the claim ended with a telephone number, an email address and a website address for readers to find out more information. The website address took the reader to a page that explained how post delivered by TNT could be identified; the areas in Manchester in which TNT delivered and brief information about how TNT recruited and trained in Manchester; the possible cost benefits of using TNT's Local Sort service for businesses sending mail in Manchester; and the tracking service that TNT provided as standard. The information on the page did not, however, enable readers to readily identify for themselves how TNT were superior to Royal Mail in respect of job creation and mail tracking and how their prices compared to those offered by Royal Mail. TNT also had not supplied information that showed how the claims were verifiable for callers to the telephone number or enquirers to the email address. Because of those reasons, while we considered the ad had explained the basis of the comparison, it had not set out how the comparison could be verified. We therefore concluded that the ad was misleading.
On this point ad (b) breached CAP Code (Edition 12) rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors).
Action
Ads (a) and (b) must not appear again in their current form. We told TNT Post UK to ensure future ads did not suggest that they were subject to the same service levels as Royal Mail; that they delivered mail themselves to all parts of the UK; or that their prices were competitive in relation to those offered by Royal Mail unless they could substantiate that that was the case. We also told them to ensure that ads explained how comparisons with identifiable competitors could be verified.
CAP Code (Edition 12)
3.1 3.11 3.3 3.33 3.34 3.35 3.7
