Getting their nappies in a twist
It had never occurred to me that one of the important design parameters of a nappy would be how little noise it makes when flexed.
However, this seems to be a USP for some manufacturers and they want to tell prospective customers all about it.
UnderJams pyjama pants give your child all the privacy and protection they need if they tend to wet the bed. They’re specially designed with an absorbent core to help protect from leaks, and are made from quiet materials to reduce any embarassing [sic] ‘rustling’ sound.
I can sort of see that the sound they make might be important to a child.
P&G decided to advertise this particular feature of their UnderJams and they claimed:
UnderJams are the quietest Pyjama Pant. Kids get the all-night protection they need without the whole world having to know.
The claim about being the quietest is an absolute and not a qualified claim, so one of P&G’s competitors, Kimberley-Clark, who manufacture Huggies DryNites Pyjama Pants, complained to the Advertising Standards Authority (ASA), challenging whether P&G’s claim was misleading and could be substantiated. The ASA adjudication was published yesterday.
P&G produced their evidence to back up their claim:
Procter & Gamble (Health & Beauty Care) Ltd (P&G) said the claim was based on extensive testing, the most recent of which was undertaken in January 2010, during which a direct comparison was made with the complainants products: Huggies DryNites Pyjama Pants and DryNites Sleep Shorts; the results of the testing showed UnderJams were significantly quieter. They said they had also carried out consumer research, which showed that 93.3 per cent of 60 panellists preferred UnderJams to DryNites Pyjama Pants because they were quieter; 96.2 per cent of 53 panellists preferred the product to DryNites Sleep Shorts for the same reason. They said the level of noise created by pyjama pants was important because privacy was well known as one of the key concerns of bedwetting children. P&G submitted the results of the 2010 testing and consumer research as well as of consumer and technical research they had conducted in 2008 and of technical research conducted in 2009, which they believed also supported the claim.
Unpacking that a bit, P&G’s evidence amounted to comparative testing done in January 2010; consumer research carried out in 2010; consumer and technical research carried out in 2008 and technical research carried out in 2009.
As an aside, it’s interesting to see how they measured the noise from a nappy. They measured:
…the decibel levels generated by twisting each product, which was intended to simulate the sound created by the product in use.
However, it’s not entirely clear when the advert was published and when Kimberley-Clark complained, but the ASA had an issue with some of this evidence:
The ASA noted the most recent consumer and technical testing was conducted after the ad appeared. The CAP Code stated, however, that documentary evidence to prove all claims should be held by marketers before marketing communications were submitted for publication. Because the evidence submitted was collated after the ad appeared, in January 2010, we considered it was not admissible as substantiation for the claim under the CAP Code and did not analyse it in detail. We considered it was not acceptable to retrospectively seek substantiation for a claim.
They went on to examine the other evidence supplied, but upheld the complaint:
The ad must not appear again in its current form. We told P&G to ensure they held robust substantiation, before an ad was submitted for publication, to support future claims.
There are lessons to be learned here. Evidence for a claim established after you’ve published that claim is not acceptable — the advertiser must hold the evidence at the time of making the claim.
How does this relate to my complaints to the General Chiropractic Council? (Well, it had to, didn’t it?)
You may remember that the GCC’s Investigating Committee (IC) decided that most of my complaints were being referred to the Professional Conduct Committee (PCC) after considering the requirements of The Consumer Protection from Unfair Trading Regulations 2008.
[Chiropractors] may publicise their practices or permit another person to do so consistent with the law and the guidance issued by the Advertising Standards Authority. (My emphasis)
There was no mention of any consideration of the ASA guidance, but it may be worth speculating on the reasons by considering the issues that might have been raised if they had taken the ASA guidance into account as mandated by their Code of Practice.
The main points of the ASA guidance that they would have to have taken into consideration can be summarised as:
- the advertiser is required to hold substantiating evidence for claims made;
- the advertiser must hold that evidence at the time the ad is placed;
- the advertiser has to supply that evidence on request;
- that evidence has to be robust evidence from relevant, randomised, controlled, double-blind clinical trials.
One has to wonder just how much of the ‘evidence’ in the Bronfort Report — a lot of which had little to do with chiropractic manipulations — would meet that last requirement. Certainly, what was said about ear infections doesn’t stand up well to scrutiny.
They could, of course, just have had a look at what the ASA allowed (or even consulted them). The ASA have a different list of allowable claims, of course, built up from robust scientific evidence and what the GCC should have taken into consideration in determining the fate of my complaints, as well as any new robust evidence any chiropractor was able to supply. However, it’s clear to me that this ‘evidence’ (included with the observations on my complaint) would not have been looked on favourably by the ASA as attempts at substantiation.
But what the P&G adjudication makes clear (as if it wasn’t already) is that the advertiser must hold the robust evidence at the time the claims are made. Indeed, to comply with ASA guidance, they should have held the evidence of substantiation when they first published the claims on their websites. Digging it up after publication breaches the ASA’s guidance. Remember, in the P&G complaint, the ASA said:
We considered it was not acceptable to retrospectively seek substantiation for a claim.
It’s not just P&G who are getting their nappies in a twist.