Types of claims: “Best”


INSIGHT
Published
May 10th '22
Share
Facebook

“Best” claims can be understood as subjective, or objective claims. The interpretation of a “best” claim is likely to depend on the context in which the claim appears. If consumers are likely to understand a claim as an objective claim which is capable of objective substantiation, the advertiser must hold evidence to substantiate the claim as consumers are likely to understand it. Because objective “best” claims are by nature drawing a comparison with competitors, the rules on making comparative claims will apply.

 

see Comparisons: general.

 

Some “best” claims may be understood as subjective matters of opinion. Claims that the average consumer is likely to understand as an obvious exaggeration or subjective claim, or claims which consumers are unlikely to take literally are allowed provided they do not materially mislead. Marketing communications must not imply that expressions of opinion are objective claims.

 

See Matters of opinion and Types of claims: unsubstantiable, subjective or puffery.

 

  • Objective “best” claims

The CAP Code requires advertisers to hold documentary evidence to substantiate claims that consumers are likely to regard as objective and that are capable of objective substantiation. Additionally, any comparisons with identifiable competitors must be verifiable and comply with other relevant comparisons rules.

 

See also Comparisons: Identifiable competitors and Comparisons: General.

 

  • Substantiation

The nature of the evidence required to substantiate “best” claims, or any claim which is likely to be understood in the same way by consumers, will vary depending on the context in which the claim is made and how it is likely to be understood by its audience. Marketers must carefully consider how a claim is likely to be understood by consumers before using it in advertising. By their nature, objective “best” claims are likely to be comparisons with competitors, because they are either superlative claims, claiming that the product/service is better than all alternatives, or top parity claims, claiming that the product is just as good as alternatives (e.g. “one of the best”). Therefore, in order to substantiate the claim advertisers are likely to be required to hold comparative evidence which demonstrates how their product/service is better that their competitors.

 

If the criterion for the “best” claim is stated, and that criterion is objective, then the ASA will regard the claim as an objective one, which must be supported by evidence which substantiates that claim. For example, “Best-selling” (LittleLamb Ltd, 11 February 2015) ,“best value” (Utility Warehouse Ltd, 08 August 2018), and “best price” (The Carphone Warehouse Ltd, 03 August 2016).

 

Even if the specific criterion for a best claim is not stated, it may still be understood as an objective claim by consumers, depending on the context in which the claim appears, and the product advertised. The claim “best available tickets” without a qualification was considered an objective claim by the ASA, who considered that consumers were likely to interpret the claim “the best available tickets” to mean that those tickets were better than any other available tickets for the advertised event generally. Whilst they appreciated that what was considered ‘best’ depended on the genre of the event, and to some extent, individual preferences, they considered consumers were likely to view “the best available tickets” in the context of the ad to mean that those tickets offered a tangible benefit compared to other tickets on sale and were therefore better than all the other tickets available for the event, because, for example, they were closer to the stage, or offered a better view of the stage. Because Ticketmaster did not have evidence to demonstrate that this was the case, the claim was considered misleading (Ticketmaster UK Ltd, 03 January 2018).

 

Similarly, in 2018 the ASA upheld a complaint about an ad which stated that the advertiser’s mobile phones were the “best value”. In this case the ASA considered that consumers would interpret the claim “The UK’s best value mobile” to relate to the features integral to the nature of a mobile phone service: minutes, texts and data. Because the advertiser did not offer more data, minutes and texts than all other UK mobile tariffs relative to the costs of the tariffs, the claim was considered misleading (Utility Warehouse Ltd, 08 August 2018). See also Person(s) Unknown t/a Proacademichelp.co.uk, 11 September 2019).

 

The ASA has considered that the claim “The UK’s Best Network”, in the context of an ad which stated “Keep Connecting With Our Unlimited Data Plans On The UK’s Best Network” and “Our Best Ever Network. Keep Connecting. Vodafone Global Roaming” would be understood by consumers to mean that objectively, Vodafone’s network performed better than the rest of the market in technical aspects such as coverage and reliability. Because this claim would be understood as an objective comparison in this context, the advertiser would have needed to provide evidence that a range of networks had been rated based on a robustly conducted comparison of a range of appropriate, relevant and objective performance measures and that Vodafone had received the highest score of all the rated networks. Because the advertiser had based the claim on a poll which measured participants’ subjective preference out of seven providers, and did not hold any objective evidence, the ASA considered that the claim was likely to mislead (Vodafone Ltd, 28 July 2021).

 

  • Verifiability

The CAP Code requires that comparisons with identifiable competitors “must objectively compare one or more material, relevant, verifiable and representative feature of those products” (rule 3.35). If it is possible to identify competitors, a “best” claim is likely to be understood as a comparison with identifiable competitors and must be verifiable.

 

Marketers do not need to identify explicitly the competitor or product that they are comparing with to be subject to the rules on comparisons with ‘identifiable’ competitors, and the ASA’s interpretation of ‘identifiable’ competitors is broad. If a consumer can identify at least one competitor that is being compared, whether or not it is identified explicitly in the ad, this will mean that the comparative claims must be verifiable.

 

To make a claim verifiable, the advertiser should set out the relevant information in the ad or signpost how the information used to make that comparison can be checked by the audience. The information required to make a claim verifiable will depend entirely on the specific comparison and the evidence used to support it. Generally speaking, marketers should include as much information as possible in the ad to ensure that consumers are able to check it for themselves and include a signpost in the ad to information on the basis of the comparison. Marketers could, for example, direct consumers to a website that contains information on the basis of the comparison and make clear that this is how to verify the claim, for example “comparison can be verified at www…” or “visit www… to verify the comparison”. If verifying the comparison requires specialist knowledge, consumers should be able to get a knowledgeable and independent person or organisation to verify the comparison for them.

 

In order for a claim to be verifiable, the information needed to verify a comparison must be clearly signposted, and readily accessible. Providing incomplete information, or information behind a paywall, for example, is unlikely to be considered sufficient. In 2020 the ASA considered the claim “BEST DISHWASHER TABLET ON TEST” to mean that Fairy Dishwasher Platinum Plus tablets had received the highest score of all the dishwasher tablet products tested by Which?, including best-selling branded and supermarket own brand products. Whilst it was clear from the ad that the claim related to a score awarded by Which? for the dishwasher tablet product category, the ad did not include any further information about the basis of the comparison or direct consumers to where they could find out such information. Although information about the methodology used to test the products, and a list of the products tested was available on the Which? website the results could only be accessed by consumers who paid for a Which? subscription. Therefore, the ASA concluded that information that was needed to verify the comparison was not signposted sufficiently clearly in the ad, and that the details of the comparison in the ad were not readily accessible (Procter & Gamble UK, 27 May 2020). See also (RB UK Commercial Ltd, 05 June 2019).

 

See Comparisons: GeneralComparisons: Identifiable competitorsComparisons: Verifiability.

 

  • Subjective “best” claims

Code rule 3.2 states that obvious exaggerations (“puffery”) and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead. In 2013, the ASA ruled that the claims “to achieve the unachievable” and “Comfort redefined” in trade magazine ads for a contact lens brand would be understood as puffery, rather than objective claims based on evidence (Alcon Eye Care UK Ltd, 4 September 2013).

 

If the rest of the advertisement does not clarify the criterion used for the claim, the ASA may regard the claim as a subjective one. For example, in 2020 The ASA considered the claim “THE ORIGINAL AND THE BEST SINCE 2004”, in an ad for a pillowcase would be understood as a subjective expression of Slipsilk’s opinion about their product, in the context of the ad, and was therefore not capable of objective substantiation (Slip Enterprises Pty Ltd t/a Slipsilk 11 March 2020).

 

Similarly, in 2005, the ASA rejected complaints about the claim “The best keeps getting better” and “… sell only the best in the business” on the grounds that they would be seen as the advertiser’s opinion (Alphason Designs Ltd, 6 April 2005). Marketers should be aware that the use of an unqualified “best” claim does not automatically mean that the claim is subjective, and this will depend on the claim and the context in which it appears.

 

Marketers should be cautious when using subjective claims or stating matters of opinion and should ensure that these will not mislead; marketing communications must not imply that expressions of opinion are objective claims (Code rule 3.6). Even if a claim is subjective, the claim must not mislead. In 2005 the ASA upheld a complaint about the claim “the ultimate broadband experience”. Although it accepted the claim was the advertiser’s opinion, the ASA considered the incidence of severe customer dissatisfaction with the service was enough to make the claim misleading (Bulldog Communications Ltd, 2 March 2005).

 

  • Claims based on customer surveys, votes, or awards

Even if the criterion for the claim is subjective, the claim may still be considered objective if it is presented as the outcome of a customer survey. Marketers must ensure that the results of any survey support the claim made, and that the claim accurately reflects those results. The claim “”Best Pizzeria Taste at home. 9 out of 10 agree” was considered misleading, because the ASA considered that the claim suggested that 90% of a group that was representative of the general public and who were in a position to compare Ristorante pizza with its competitor products agreed that Ristorante had the best taste, when that was not the case (Dr Oetker (UK) Ltd, 10 August 2018).

 

See Substantiation: Consumer surveys and sample claims.

 

Marketers must ensure that any objective best claim is supported by sufficiently robust evidence. It is unlikely to be sufficient to objective comparisons on customer perception surveys only.  Self-reported consumer data will not be sufficient to support a claim that would otherwise require objective substantiation, so marketers should not rely on consumer perception data to support claims for which they do not hold objective substantiation.

 

The ASA investigated three ads for Three Mobile which stated “Best network for data”. Because two of the ads in the campaign did not make it clear that the claims were based on Three being awarded the ‘Best network for Data award as part of the Mobile Choice Consumer Awards, the ASA considered that consumers would understand the claim to be based on a comparison of a range of mobile-data-related objective performance measures, for example coverage and speed, from a range of mobile data networks and that Three had been rated as having the best overall performance based on those measures. The advertiser the claim was based on the results of a consumer survey which measured consumers’ subjective perceptions of their own networks, and the views of a panel of four judges, rather than any objective data, this was not considered sufficient to substantiate the claim. The third ad in this campaign stated “UK’s Best Network for Data 2018 as voted by Mobile Choice Consumer Awards”. Although the claim referred to the award having been “voted” for, the ASA still considered, that because it referenced a specific, objective and measurable element of the service consumers would expect that the research involved an objective component beyond just customers’ subjective perceptions of their own networks. Because the advertisers could not substantiate the claim as it was likely to be understood by consumers, and because the claim was not verifiable, the complaints were upheld (Hutchison 3G UK Ltd t/a 3, 24 February 2021). Similarly, because the ASA considered that consumers would expect the claim “the network voted Britain’s Best for Coverage” to be based on an objective comparison of the advertiser’s network coverage with their competitors when it was based on consumers’ subjective appraisal of their own provider, the ASA concluded that it was misleading and breached the Code (Telefonica UK Ltd, 22 September 2021). See also Vodafone Ltd, 28 July 2021.

 

In contrast, the claim “BEST DISHWASHER TABLET ON TEST” was considered acceptable in an ad for fairy dishwasher tablets. The claim appeared directly underneath a Which? ‘Best Buy’ logo which featured the text “Which? Best Buy Dishwasher Tablets February 2019”, and next to a cartoon of the ‘Fairy baby’ holding a gold trophy above its head. In that context, the ASA considered consumers would interpret this to mean that the independent consumer organisation Which? had tested the performance of a range of dishwasher tablets, including the best-selling products in the UK, using its own testing criteria, and that the advertised product had received the highest score. Because this was the case, the ASA concluded that the claim “BEST DISHWASHER TABLET ON TEST”, as consumers would understand it, had been substantiated and was not misleading (Procter & Gamble UK, 27 May 2020).

 

See also: Types of claims: best-sellingComparisons: GeneralComparisons: Identifiable competitorsComparisons: Verifiability.

 

Source: CAP

 

Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA. CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.

 

How can we help!

LS Consultancy are experts in Marketing and Compliance, and work with a range of firms to assist with improving their documents, processes and systems to mitigate any risk.

 

We provide a cost-effective and timely bespoke copy advice and copy development services to make sure all your advertising and campaigns are compliant, clear and suitable for their purpose.

 

Our range of innovative solutions can be tailored to suit your unique requirements, no matter whether you’re currently working from home, or are continuing to go into the office. Our services can be deployed individually or combined to form a broader solution to release your energies and focus on your clients.

 

Contact us today for a chat or send us an email to find out how we can support you in meeting your current and future challenges with confidence.

 

Explore our full range today.

 

Contact us

 

 

Why Not Download our FREE Brochures! Click here.

 

Call Us Today on 020 8087 2377 or send us an email.

 

We welcome individual bloggers / Professional Writers / Freelancers to submit high quality contents. Find out more…

 

You can see our Google reviews here.