Download Full Decision - New Zealand Advertising Standards Authority

COMPLAINT NUMBER
13/530
COMPLAINANT
D. Platt
ADVERTISER
Leaders Newspaper
ADVERTISEMENT
Leaders Real Estate 1987 Limited
DATE OF MEETING
29 January 2014
OUTCOME
Upheld
SUMMARY
The newspaper advertisement for Leaders Real Estate compared the rateable value (RV),
with the “SOLD” price of 79 houses in the Wellington region and provided the percentage
sold above RV. The advertisement stated, in part “Who sells Wellington for the best prices?
WE DO! REMAX, Leaders in real estate.”
The Complainant said the statement “Who sells Wellington for the best prices? WE DO!”
was misleading as no two houses were the same and a house is only sold once so a
comparison was not possible.
The majority of the Complaints Board said the advertisement made an absolute claim
relating to price, which required substantiation. It said the claim was also comparative in
nature and therefore needed to establish grounds for comparison and make that information
clear to consumers. It said the advertisement failed to do this and no substantiation was
offered by the Advertiser.
A minority of the Complaints Board disagreed and said the advertisement contained
sufficient information to the let the consumer decide whether the Advertiser offered the “best
price.” The minority said that consumers could find comparative information and draw their
own conclusions and therefore the advertisement was not misleading.
However, the majority of the Complaints Board considered the advertisement was likely to
mislead the consumer relating to the lack of premise for the comparison and inadequate
substantiation from the Advertiser. It ruled the advertisement was in breach of Basic
Principle 4 and Rule 2 of the Code of Ethics. In accordance with the majority, the Complaints
Board ruled the complaint be Upheld.
[Advertisement to be removed]
Please note this headnote does not form part of the Decision.
13/530
COMPLAINTS BOARD DECISION
The Chairman directed the Complaints Board to consider the advertisement with reference
to Basic Principle 4 and Rule 2 of the Code of Ethics. This required the Complaints Board to
consider whether the advertisement was likely to mislead or deceive the consumer and
whether the advertisement had been prepared with a due sense of social responsibility to
consumers and society.
As a preliminary note, the Complaints Board confirmed the Complainant was in commercial
competition with the Advertiser, however the complaint before them had an important
consumer interest in this instance and therefore the Chairman had ruled the complaint be
handled through the consumer complaints process.
The Complaints Board noted the Complainant’s concern that the statement “Who sells
Wellington for the best prices? WE DO!” was not true, as no two houses were the same and
a house is only sold once by one agent. The Complainant said there was no way the selling
houses at their “best price” could be measured.
Turning to the Advertiser’s response the Complaints Board noted where they said “all
Leaders advertising in respect to details of actual sales recorded in our advertisements was,
is and always will be strictly correct.” The Complaints Board noted the Advertiser said they
conducted “statistical analysis of ALL SALES BY ALL COMPETITORS, (including the
Complainant), [which] continues to demonstrate that Leaders get a superior result.”
However, the Complaints Board noted the Advertiser did not supply any evidence to
illustrate either the claim in the advertisement, or the above claim in their response.
The Complaints Board turned to the response from the Media, The Dominion Post, which
said “we understand that the information provided to us by our Advertisers is factual and
correct; and ask for a source of general data that may be presented in the creative/text.”
A majority of the Complaints Board noted the Complainant did not challenge the factual
elements of the advertisement which identified the percentage sold above rateable value in
Wellington, therefore, the Complaints Board focused on the statement “Who sells
Wellington for the best prices? WE DO!” It said the statement was an absolute, superlative
statement, in line with precedent Decision 13/047 Appeal 13/020 regarding the claim “Best
Price…Best Quality. The Decision stated in part:
“The Appeal Board was of the view that the aspiration nature of the phrase, as stated
by the Advertiser, did not follow through the television advertisement with clear
signposts that “Best Price…Best Quality” was as aspirational statement. Without the
aspiration element, the claims required substantiation that the prices were in fact the
“best”, or cheapest, as the likely consumer interpretation in this context. The Appeal
Board held that the evidence supplied fell short of supporting the strong claim, as the
research stated the Advertiser’s prices were generally better but not the “best”.
Turing to the Code of Ethics, the Appeal Board was of the view that use of the word
“best” in terms of price as used in the television advertisement was not an
aspirational claim, and without adequate substantiation, the claim was misleading.”
Turning to the advertisement before it, the majority of the Complaints Board said the above
precedent was directly applicable to the advertisement before it as it was not an aspirational
statement or aim, but a strong claim which required substantiation. The Complaints Board
said the statement was comparative in that the Advertiser sold houses for the “best price”
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compared to other companies, however, they did not offer any basis for the comparison nor
substantiation to this effect.
The majority of the Complaints Board said the likely consumer take-out would be the
Advertiser sold houses for a higher percentage above their ratable value than their
competitors, but noted the advertisement failed to offer the consumer any comparative
basis for the claim. The Complaints Board also noted the Advertiser did not supply
adequate substantiation to support the absolute claim “Who sells Wellington for the best
prices? WE DO!”
A minority of the Complaints Board said the claim made in the advertisement was based on
factual information which was listed in the advertisement and consumers were free to
establish for themselves the comparisons with other advertisers. The minority said the
advertisement allowed the consumer to therefore decide whether they thought the
Advertiser offered the “best price” and therefore said the advertisement was not misleading.
On consideration of the above, the majority of the Complaints Board said the advertisement
was likely to mislead the consumer in breach of Rule 2 of the Code of Ethics. It said the
advertisement had therefore not been prepared with a due sense of social responsibility to
consumers and society in breach of Basic Principle 4 of the Code of Ethics.
In accordance with the majority, the Complaints Board ruled to Uphold the complaint.
DESCRIPTION OF ADVERTISEMENT
The newspaper advertisement for Leaders Real Estate compared the rateable value (RV),
with the “SOLD” price of 79 houses in the Wellington region and provided the percentage
sold above RV. The advertisement stated, in part:
“Who sells Wellington for the best prices? WE DO! REMAX, Leaders in real estate.”
COMPLAINT FROM D. PLATT
As discussed I would like to resubmit my complaint to the Advertising Standards Authority
regarding the Dominion Post advertising placed over a number of dates, including the copy
supplied which ran on 29th of June which you already have on file.
Leaders Real Estate ran this advertisement knowing it was misleading and continued to run
it after they were asked to cease. The claim in the advertising (Who sells Wellington for the
best price? We do!) is simply not true and is impossible to prove for the simple reason that
no two houses are the same and a house only sells once. This statement is something which
is impossible to measure yet Leaders knowingly used the statement in an effort to
encourage potential home sellers to list their properties for sale with Leaders.
FURTHER FROM COMPLAINANT
R. Garlick does not appear to have addressed in any way shape or form the question which
formed the basis of our complaint, which was the fact there is no measurable way to justify
the claims made in their advertising. He also appears to be a stranger to the truth unless his
Alzheimer's has really kicked in (over the 2 years R. Garlick ran his misleading marketing we
tried several options to get him to desist -including contacting him directly and lodging
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complaints with the Real estate institute and the REAA), I am more than happy to provide
evidence of this if you would like.
On the other hand I was clearly able to explain and justify 2 of 3 of the points raised in R.
Garlicks complaint against Tommy's and I was equally quick to put my hand up and agree
we had made an error with 4-5 of the GV figures quoted. None of which made any real
difference to the message we delivered. I also completely disagree with R. Garlicks
recollection of events, the advertising we ran had the desired effect which was to stop
Leaders continuing their intended deceit designed to target potential home sellers, once we
achieved this we stopped the advert and haven't run it again.
I look forward to R. Garlick finally being held to account by someone.
Code of Ethics
Basic Principle 4: All advertisements should be prepared with a due sense of social
responsibility to consumers and to society.
Rule 2: Truthful Presentation - Advertisements should not contain any statement or
visual presentation or create an overall impression which directly or by implication,
omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to
deceive or mislead the consumer, makes false and misleading representation,
abuses the trust of the consumer or exploits his/her lack of experience or knowledge.
(Obvious hyperbole, identifiable as such, is not considered to be misleading).
RESPONSE FROM ADVERTISER, LEADERS REAL ESTATE
All Leaders advertising in respect to details of actual sales recorded in our advertisements
was, is and always will be strictly correct, in contrast to similar copy cat advertisments
published by Tommys Real Estate wherein the factual inaccuracy has already been
conclusively tabulated.
Also, D. Platts 2nd paragraph statement takes further liberty with truth insofar as Leaders
believes our claim true and we have never been "asked to cease" publishing that
advertisement by any party of authority on account of any alleged or proven
misrepresentation.
Our only reason for doing so was simply that the "Tommys" subsequent sensationalist
version in our opinion has brought that style of marketing into disrepute.
FURTHER RESPONSE FROM ADVERTISER, LEADERS REAL ESTATE
My complaint about Tommy's advertisment simply addressed the factual errors contained in
it as identified.
It appears Tommy's do not dispute the factual accuracy of the Tender examples listed in our
advertisment.
Asa review of Tommys complaint regarding our statement becomes farcical in face of the
Tommy's statement implication that they, not Leaders "sell Wellington for the best price"
simply on the basis of a limited provision of flawed data.
Leaders undeniably sells a significantly greater number of homes, predominantly by Tender,
than Tommy's, over the area covered in our advertisment. Our statistical analysis of ALL
SALES BY ALL COMPETITORS, (including Tommy's), continues to demonstrate that
Leaders get a superior result.
(You may recall that our statistical analysis has been previously vetted by Commerce
Commission who took no further action on that complaint).
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If Asa has a concern for the factual accuracy of specific results purported to have been
achieved by a real estate agent, then I have already provided all relevant information in my
complaint.
If Asa has no such concern and merely wishes to weigh the interpretation of apparently
conflicting competitive claims then there is nothing else I can add anyway.
RESPONSE FROM MEDIA, THE DOMINION POST
Thank you for your letter dated 20 November 2013 regarding the Leaders newspaper
advertisements that were published in the Dominion Post.
We understand that the information provided to us by our Advertisers is factual and correct;
and ask for a source of general data that may be presented in the creative/text (RV
information, etc). This was provided.
I am happy you consider our Client's explanation if any of the detail queried by Tommy's
requires further clarification.
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