ASA upholds complaint against Bio Guard Mineral Springs

RULING OF THE ASA DIRECTORATE

In the matter between:

ZODIAC POOL CARE (PTY) LTD - Complainant

and

BLSA INDUSTRIES (PTY) LTD - Respondent

12 June 2006

RE: BIO GUARD MINERAL SPRING / ZODIAC POOL CARE / 5140

Zodiac Pool Care lodged a competitor complaint against a print advertisement for BLSA's Bio Guard Mineral Springs pool care product, which appeared in the April 2006 issue of Swimming Pools & Spas.

The left hand side of the full-page advertisement contains a photograph of a dry salt pan, and the words "Salt vs Mineral Springs?" The right hand side of the page contains a photograph of a waterfall cascading into a clear blue swimming pool and the words "Feel the difference."

The bottom of the page contains, inter alia, the words "Try Mineral Springs for the silky soft and crystal clear water you've always wanted."

COMPLAINT

The complainant advised that the product is a salt water chlorinator (SWC), which uses a mixture of salt and other minerals in the production of chlorine, for the purposes of sanitising swimming pools.

The complainant submitted, inter alia, as follows:

• The level of salt required in any SWC pool is extremely low and in most cases is barely detectable by the consumer;
• The advertisement suggests that Mineral Springs is a different from other SWC products in that it does not use salt in its operation;
• This misleads consumers as the respondent's product is a SWC that uses salt in the production of chlorine in the same proportions as other SWC's and in the same manner;
• The advertisement is misleading, disparaging of other SWC's and constitutes comparative advertising in breach of the Code.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE

According to the complainant, the following clauses of the Code are relevant:

• Clause 4.2.1 of Section II - Misleading claims;
• Clause 6 of Section II - Disparagement; and
• Clause 7 of Section II - Comparative advertising.

RESPONSE

The respondent submitted, inter alia, as follows:

By way of background, the respondent submitted that this advertisement has been running since October 2004, and the complainant should therefore have complained sooner.

The respondent submitted, inter alia, that pool owners, and particularly "first time swimmers" in a salt pool are definitely aware of the salt in the pool water. The respondent therefore denied the complainant's assertion that the salt levels are barely detectable by consumers.

The respondent submitted that its product is unique in that it consists of a three part system which is very different to all other pool treatment systems available. The advertising was positioned to highlight mineral aspects and benefits of the entire system, and salt is one of the minerals included in the mix.

The respondent also denied that its advertisement misleads consumers into believing that Mineral Springs does not produce the sanitiser in the same way as other SWC's Nowhere does the respondent say that it does not use electrolysis of salt to produce the sanitiser and, in fact, the advertisement shows a photograph of the actual chlorinator. In other words, the advertised product does bear certain similarities to SWC's, but also has important differences.

The respondent denied that it misleads consumers as the comparison is between its product and using salt only. It denied that its advertising is disparaging, as there is nothing in the advertisement that says that salt is bad and directly or indirectly disparages salt water chlorination.

The comparison is factual and is between its own product and pool water treated with salt only.

ASA DIRECTORATE RULING

The ASA Directorate considered all of the relevant documentation submitted by the respective parties.

Clause 6 of Section II states as follows:

"6.1 Advertisements should not attack, discredit or disparage other products, services advertisers or advertisements directly or indirectly.

6.2 Comparisons highlighting a weakness in an industry or product will not necessarily be regarded as disparaging when the information is factual and in the public interest.

6.3 In considering complaints under this Clause, the ASA shall take cognisance of what it considers to be the intention of the advertiser."

The complainant submitted, essence, that the advertisement disparages salt water chlorinators (SWCs).

In Mypro Whey / Ultimate Sports (21 June 2004) the Directorate accepted that advertisements are capable of disparaging an entire industry.

The current advertisement is clearly comparing two things. This is clear from the layout, the use of the phrase "feel the difference" and the word "vs". The visuals and the phrase "Salt vs Mineral Springs" makes it clear that the comparison is between salt water systems and the advertised product.

The comparison is therefore between the respondent's product and the SWC industry as a whole.

The take-out of the advertisement by the hypothetical reasonable person is that salt water chlorinators, or in layman's terms salt water methods of keeping swimming pools clean, are very salty and the Mineral Springs system is better, in that the pool will be clear and will feel soft and silky.

The respondent suggested that the comparison is between using its product and using salt only. The Directorate is of the opinion that the hypothetical reasonable person who sees this advertisement would not make the above comparison, or think that the advertisement suggests that the alternative is putting only salt in one's pool. This reasoning is disingenuous, a conclusion which no reasonable person would draw.

In terms of Clause 6.2 of Section II an advertiser can highlight a weakness in an industry if the information is factual. The respondent would therefore have to put something before the Directorate to show that its product is factually better than SWCs.

While the respondent has submitted that its three-part system is unique, it has not shown that its product is necessarily better than SWCs.

As such, the Directorate is of the opinion that the respondent's advertising is in breach of Clause 6 of Section II of the Code.

Given the above finding:

• The advertisement must be withdrawn;
• The process to withdraw the advertisement must be actioned with immediate effect on receipt of ruling;
• The withdrawal of the advertisement must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
• The advertisement may not be used again in its current format.

The complaint is upheld.