Duracell has been instructed to withdraw advertising stating its batteries “last up to 10-times longer”.
The Advertising Standards Authority of South Africa (ASA) made the ruling following a complaint from competitor Eveready.
Eveready stated that Duracell claiming its “batteries last up to 10-times longer than ordinary zinc carbon batteries” was surprising, as Duracell had failed to substantiate claims that its batteries lasted up to 6-times longer than ordinary zinc carbon batteries in a previous ASA case.
It added that various “protocols” referred to in Duracell’s advertising “are designed and implemented at the respondent’s discretion” – and do not stand up to scientific scrutiny.
“The universally-accepted standard test for such products is prescribed by the International Electrotechnical Commission. This standard (IEC60086 – 2: 2015 Edition 13) has been adopted by the SABS,” stated the report.
When “proper testing is done in accordance with the SABS protocol”, Eveready said Duracell’s batteries last between 3.5 and 4.1-times longer than Eveready products.
“As a result, the claim and advertising is unsubstantiated,” said Eveready.
Duracell stated that its batteries do last up to 10-times longer than ordinary zinc batteries, which is backed by evidence and the claim was pre-approved for publication by the ACA Advisory Service.
It said the testing was done by Intertek Semko AB, an “independent Total Quality Assurance provider to industries worldwide”.
Duracell further argued that Eveready’s “insistence on using the IEC/SABS methodology is misplaced”, as power consumption varies by device used.
“It was for this reason that it decided to rely on tests conducted in specific toys and camera in order to obtain like-for-like comparisons,” stated the report.
Duracell also submitted confidential copies of its substantiating documents as well as signed correspondence from the ACA Advisory Services.
The ASA said it considered all the evidence, but noted that the ACA Advisory Service is not regarded as a technical expert in any specific industry.
Based on this, and the evidence regarding the SABS testing standards, the ASA ruled that:
- The claims to last “up to 10-times longer” must be withdrawn.
- The claims must be withdrawn immediately.
- The claims and the advertising may not be used again in its current format.
Full ASA ruling
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
Clause 4.1 of Section II requires advertisers to hold independent verification for any and all claims that are capable of objective verification. There is no dispute before the ASA that the claim to last “… up to 10x longer …” is capable of such objective verification. However, the parties appear to be at odds over which substantiation is more appropriate, with the complainant having argued that an industry standard test, as accepted by the SABS should be applied, whereas the respondent disputed this.
At the outset, it should be noted that the ACA Advisory Service provides pre-approval and general copy advice, but is not regarded as a technical expert in any specific industry or field of expertise. While they provide valuable service to the industry, the ASA does not regard its views as substantiation for the purpose of Clause 4.1 of Section II of the Code. It should also be emphasised that the ASA is obligated to apply its mind to the advertising in dispute and determine whether or not the Code has been contravened. Its decision therefore does not hinge on the opinion obtained from the ACA, and is based on a neutral interpretation of the merits of the matter.
The respondent relies predominantly on testing conducted by Intertek Semko AB, a Swedish certification body with offices across the globe. According to its website (http://www.intertek.com/what-we-do/) Intertek “… delivers innovative and bespoke Assurance, Testing, Inspection and Certification solutions for our customers’ operations and supply chains”.
The respective reports note, inter alia, that “The battery expert advisory team of Intertek Semko AB has been asked by Duracell to review and comment on the …” relevant testing done in accordance with the protocol that appears to have been selected and designed by the respondent.
The relevant reports (attached as Annexures “F” and “J”) provide brief synopsis of the tests. Contrary to the complainant’s assertion, however, the respondent did not rely on established SABS testing protocol. The respondent explained, inter alia, that:
… in certain cases, the IEC standard test applications will not accurately represent a specific device. In such situations, the IEC admits that each of the application tests is an approximation only … They also acknowledge that the load characteristics of certain equipment changes with time …
As such, IEC application tests are effective to reflect the performance in a full group of devices, but are not always tailored to a specific device and therefore unable to reflect performance in that device …
Duracell has thus defined a process to get a more accurate assessment of the performance of batteries in such devices … by understanding the circuitry and load conditions in use [which is] … done in collaboration with the device manufacturer and the run down protocol is eventually signed off by the device manufacturer … Once, the specific protocol … is signed off, it is submitted to a 3rd party testing facility (Intertek Semko AB) to generate the performance data …”
In principle, the ASA has no reason to doubt the respondent’s submissions. However, it is reluctant to simply assume that SABS approved testing methodology (which by default is intended to standardise testing for accurate and representative comparison purposes) should be discarded. In addition, the reports from Intertek Semko AB are, by the respondent’s admission, generated using the respondent’s protocol.
The Directorate has two main concerns in this regard:
- The Intertek Semko AB reports are silent on whether or not the respondent’s protocol is indeed more applicable and representative of typical user-experience and battery performance, and
- The disclaimers relied on offer no additional clarity and do not assist the hypothetical reasonable person in determining whether the claims are representative.
The average consumer would not only be oblivious as to what a “Just Play Ultimate Olaf battery test protocol”, an “RC Hero LMQ battery test protocol” or a “2015 IEC digital camera test” is or entails, but would have no appreciation for the fact that this test may, or may not, be representative of what one would typically experience.
To the hypothetical reasonable person, the reference to lasting ten times longer presupposes that ordinary use would deliver similar results. It is not clear why the respondent chose to forego industry standardised testing in favour of specific testing done on very specific toys when it can reasonably be assumed that the vast majority of consumers will not use the advertised batteries in those toys, and will not interpret the claim to be limited to only those toys.
The same concerns apply to the “2015 IEC digital camera test” in that a hypothetical reasonable person would not comprehend the significance of the “2015 IEC digital camera test”, nor appreciate that there may, or may not, be an issue with how this test applies to all types of batteries.
Assuming, purely for the sake of argument, that this test is adequate and representative (a point of dispute between the parties), the claim “Lasts up to 10 times longer. Save more*” appears in prominent, very large lettering on the Point of Sale material next to a Duracell bunny holding a Duracell battery while a heap of “ordinary” batteries is shown in the background. However, the disclaimer “vs ordinary zinc carbon batteries when used in AA 2015 IEC digital camera test. Results may vary by device” is included in minute, nearly illegible font at the bottom.
In addition, the disclaimer limits the broad claim to a specific battery size in a specific context. This is contradictory to the broad claim that Duracell batteries in general last up to 10 times longer. As such, the Point of Sale claims are broader than the substantiation relied on, and therefore create an impression that differs from reality.
In light of the above, the Directorate is of the view that the claims and advertising in question communicates the claims in a misleading manner, rendering them misleading and in contravention of Clause 4.2.1 of Section II of the Code.